Court File and Parties
St. Catharines Court File No.: 353/16 Date: 2019/09/06 Ontario Superior Court of Justice Family Court
Re: Emma Samuda Unoh, Applicant And: Ayodele Mobolaji Agboola, Respondent
Counsel: Steven L. Nagy, for the Applicant Ayodele Mobolaji Agboola, Self-Represented
Endorsement on Costs
[1] The trial of this action was heard over a period of fourteen days from May 13 to May 31, 2019. The primary issue was custody of Zoe, the five year old daughter of the parties. A number of other corollary and related issues were also determined including access visits, child support, communications between the parents who are not able to speak to each other, and Section 7 extraordinary expenses. I rendered an oral judgment to the parties on June 27, 2019 in which custody was granted to the applicant.
[2] I directed that the parties provide written submissions with respect to costs. Mr. Nagy for the applicant provided written submissions filed with the court July 12, 2019. Mr. Agboola provided his written submissions July 26, 2019. Reply submissions were filed by Mr. Nagy on August 1, 2019.
[3] In the end, the applicant was substantially successful on an overall global basis, but not totally successful on all issues. She did serve an offer to settle but it was not totally reflected in the final order. The respondent did not present any Offer to Settle but continued to take the position to the conclusion of the trial that Zoe should be moved to Colorado to reside with him. I find this position and his refusal to accept the applicant’s offer with respect to custody and access forced the parties to trial and the majority of time at trial revolved around those two issues.
Purpose of Costs
[4] In Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.), the court stated the following:
Modern cost rules are designed to foster three fundamental purposes:
- To indemnify successful litigants for the cost of litigation;
- To encourage settlements; and
- To discourage and sanction inappropriate behaviour by litigants.
[5] A corollary to the indemnification principle can be added. In assessing damages, the court must always be mindful to award a quantum of costs which is fair and reasonable to the unsuccessful party who must pay them and which takes into account the expectations of the parties concerning the quantum of a costs award: Atlantic Financial Corporation v. Henderson (2007), 86 O.R. (3d) 121 (S.C.J.). If a general idea of the costs exposure facing a litigant can not be estimated by his/her counsel, the uncertainty of possible costs awards can negate efforts of the parties to settle litigation. Put another way, parties to litigation need to be able to assess their total financial exposure with some degree of accuracy before making decisions to litigate or settle.
Facts Related to Case at Bar
[6] In this case, the respondent was self-represented. He explained that he was unable to afford the costs to hire counsel for the trial. I can only conclude from that decision that he was aware this trial would involve considerable legal expenses for both parties if they both chose to proceed with counsel. In other words, the quantum of costs claimed by the applicant can hardly be a surprise to him. I have no doubt he was aware of the potential financial exposure facing him if he proceeded to trial and was partially or totally unsuccessful. It is not the first time in these lengthy proceedings that he has been ordered to pay costs to the applicant.
[7] The operative framework for the assessment of costs is found in Rule 24 of the Family Law Rules, O. Reg. 114/99. Section 24(12) of the Family Law Rules lists a series of factors for the court to consider in the determination of costs. The court is directed to consider the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
i. Each party’s behaviour ii. The time spent by each party iii. Any written offers to settle, including any offers that do not meet the requirements of Rule 18 iv. Any legal fees, including the number of lawyers and their rates, v. Any expert witness fees, including the number of experts and their rates, vi. Any other expenses properly paid and payable; and (b) any other relevant matter.
[8] I will deal with some of those items in the order in which they are listed.
Behaviour of the Applicant
[9] In the oral judgment rendered in this matter, I referred extensively to the behaviour of the parties. In particular, I was singularly unimpressed with the behaviour of the applicant. I include for ease of reference, some extracts from my judgment on her behaviour:
I must say that I did not believe the applicant’s explanation with respect to her intention to return to Colorado. I am satisfied that she knew the marriage was finished when she returned to St. Catharines with Zoe. She had her apartment set up. She had her daughter with her. She knew that her husband was committed to complete his third year of Bible studies in Colorado. The altercations and arguments between the parties had reached such a stage that in her view, the situation was no longer tolerable. She provided no evidence that Zoe’s ear infection was so severe that she was unable to travel for six weeks. She intended to take Zoe to Canada and retain her there. In the ensuing Hague application hearing, Scott J. made that very finding that she had illegally retained Zoe in Canada. However, because of the deemed acquiescence of the applicant to Zoe being removed to Canada, Mr. Agboola’s motion to have Zoe returned to Colorado was dismissed. In due course, that ruling was upheld by the Divisional Court and Mr. Agboola’s motion for leave to appeal to the Court of Appeal was dismissed. Those decisions are binding on this Court. In other words, her motivation for bringing Zoe to Canada is of little import in the decision I must render in this trial.
Dr. Unoh’s constant references to the respondent as a liar simply exacerbated the situation. For example, when an issue arose about a package containing an EpiPen for Zoe was open when she returned to her mother’s care, the applicant called the respondent a liar when he explained the package had been torn but the EpiPen had not been used. She sent a number of messages with sarcastic emojion faces beside the messages. Her language was often rude, sarcastic and insulting, which she agreed to during her testimony. In one email she wrote, “Find someone else to play in the mud with you.” Another time she wrote, “You never take responsibility for anything. Let’s see if you can get past your pride.” She seemed not to be sensitive to the anger and frustration her former husband was experiencing at the sudden loss of the daily presence of his little girl. She was frequently dismissive of concerns raised by him and a good number of her communications were verbally abusive. I find on the evidence that she clearly had a very bad temper when dealing with the respondent and her tongue was as sharp and cutting as a sword.
She further aggravated the situation with her behaviour. She issued a warning, which I consider to have been a rather ridiculous insistence, that she would not accept in her home any toys Zoe was given by her father during access visits.
She would not inform the respondent of Zoe’s whereabouts from time to time, ostensibly because she was afraid that the respondent would “show up”. The only evidence to support this rather weak contention is that he arrived unannounced at her door on Christmas morning in 2015 after she had earlier invited him to come to St. Catharines to help care for Zoe while she was working. She stated that she is afraid of the respondent and as such, she insists that access pick-ups and drop-offs be done by a third party. There is no evidence that she ever was physically assaulted by the respondent with resultant physical injuries. Furthermore, she had twice invited him in November and December 2015 to come to her St. Catharines ’ apartment to help care for Zoe.
The applicant tried to support her rather bizarre behaviour by testifying that she does not go to the United States any more, even just across the border to Buffalo to shop, because of fear that somehow the respondent will get her in trouble with border security personnel.
[10] I had the distinct impression that the applicant knew how to “game” the system. She did what she had to do to improperly remove her daughter from the United States. She was successful in the ensuing Hague Convention hearing. She knew that ultimately the central issue in these proceedings would be the best interests of Zoe. She prepared a detailed “call log” starting in January 2018 which I noted was an attempt to show all the scheduled “skype” calls pretty well occurred but in fact, in cross-examination, Mr. Agboola got her to agree that a number of the entries were incorrect. The comments beside many of the entries were also very self-serving and I have ignored those. As a professional psychiatrist, she testified that she has counselled many women who have been involved in matrimonial litigation. I formed the distinct impression during her evidence that she knows how the family law system works and she maintained and created records to support her position.
[11] That being said, I have no doubt she is a good mother to her daughter and that is reflected in the ultimate ruling in this matter.
Behaviour of the Respondent
[12] The respondent’s behaviour was not faultless in this matter. Some extracts from my judgment reflect that fact:
The respondent was certainly not fault free in this communication break-down. The court was led to a significant number of messages to which the respondent did not reply or instead of replying, started to ask questions unrelated to the conversation. While his language was not as intemperate as that of the applicant, his failure to respond to enquiries in a timely way to facilitate the applicant’s responsibilities to arrange daycare if he was not attending an access visit was unnecessary and created unnecessary tensions between them. In September 2016 Mr. Agboola obtained employment in Colorado Springs through an employment agency. As a software writer, he has published two books available on Amazon and has enjoyed a successful career in his chosen field. However, for reasons only known to himself, he did not let the applicant know that he was going to be continuing to work in Colorado or where he would be living. While he did not have to do so, it is an example of his unwillingness to communicate information which may be relevant to the applicant or to simply communicate in response to her requests for information.
In February 2019, Dr. Unoh asked the respondent if he wanted more access in March 2019 and what his plans were for the summer of 2019. The applicant indicated she wanted to make plans well in advance for Zoe in the summer months including registering her in a number of camp related activities as well as arranging care for her. In doing so, she was attempting to give him input into Zoe’s activities and schedule. He did not reply, acknowledging in his evidence that in hindsight he should have.
Since the time of the consent order of Scott J., dated July 15, 2017, Mr. Agboola has decided for varying reasons to not exercise his right to a weekend access visit with Zoe on 21 occasions. Furthermore, he was offered additional time with Zoe over the Christmas break in 2017, which he refused and explained that it was not workable for him.
The respondent agreed that he did not pursue or seek employment in Ontario, or areas of the United States closer to the child, Zoe, notwithstanding that he is able to work in Ontario . Unlike the applicant, his professional qualifications do not limit the jurisdiction in which he is able to work.
However, I find it concerning that the respondent did not lead evidence of his efforts to find employment closer to St. Catharines where his daughter is located. He has missed many of the “windows” available for access visits, explaining that a combination of the costs of travel, parking, baggage fees, hotel, car rental, gas and meals means that each visit costs him approximately $650 to $700 US per weekend visit. Furthermore , he explained some of the missed visits were based upon the fatigue he experiences when he returns home to Colorado, often having to return on a Sunday to work to make up for missed time. There is no question in my mind that regular and much more frequent access visits with her father would be in Zoe’s best interests and the applicant agrees with that suggestion.
[13] While the behaviour of both parties from time to time was provocative, hurtful and unnecessarily antagonistic, I find that the applicant’s behaviour was ultimately much more the cause of the hostile relationship which exists today and which is undoubtedly going to impact Zoe as she gets older. The applicant must bear considerable responsibility for the enmity which led to both parties making resort to this court for adjudication.
Offer to Settle
[14] The applicant did serve an offer to settle dated June 6, 2018 which was never withdrawn nor did it expire. Many of the paragraphs contained in the final judgment are identical to or similar to what was offered on the issues of custody, access to information, police enforcement, change of name, passport applications, Christmas and Easter access, notice requirements for access visits, scheduling of extra-curricular activities, drop off and pick up locations for access visits. The actual access schedule, while somewhat different from that proposed in the offer to settle, was substantially similar as was the requirement imposed on the applicant to keep the respondent fully informed of major decisions affecting Zoe.
[15] Because of the failure of the respondent to file an updated financial statement prior to or during trial, and his failure to provide his 2017 and 2018 income tax returns until after the trial had commenced, the issues of child support and extraordinary expenses could not meaningfully be dealt with until such productions were completed. Furthermore, the respondent did not provide details of his travel and hotel charges incurred during access visits until the trial had commenced.
[16] I concur with the submissions of the applicant that in the end, she did obtain an order that was as favourable as the offer to settle in most respects and on an overall global basis, she did succeed. However, she did not succeed in some respects as access to the respondent was expanded well beyond what was offered and the applicant was ordered to pay the costs of an annual visit for Zoe to spend time with her father at his residence in the United States. Mr. Agboola noted in his costs submissions that the applicant abandoned any claim for arrears of child support or retroactive child support at trial. If the offer to settle contained a provision that the clauses in the offer were severable it may have resulted in some of the issues being resolved before trial. However, it was not accepted and the respondent did not make a counter-offer or any offer to settle at all.
[17] The respondent continued to take the position to the very end of the trial that custody of Zoe should be granted to him with her residence to be with him in the state of Colorado. The trial largely centered around custody and access and from reviewing my notes, I estimate those issues consumed approximately eighty per cent of the trial time. On those issues, the applicant was largely successful.
[18] Rule 18(14) of the Family Law Rules provides that if the party making the offer obtains an order that is as favourable as or more favourable than the offer, that party is entitled to its costs to the date the offer was made and to fully recovery of costs from that date.
[19] Mr. Nagy has filed a Bill of Costs which in the circumstances, I find to be eminently reasonable. He was called to the bar in 1993 and has extensive experience in family law and family law litigation. He has billed his client $250 per hour. During his 26 year legal career, he has regularly appeared before the courts as part of his practice. In this matter, he was of particular assistance to the court. He was faced with a self-represented party which is always difficult for counsel in that he was obliged to represent his client while assisting the court and in some situations the respondent to permit the trial to proceed with as much flow and efficiency as possible.
[20] In respect of the work done up to the time of the offer to settle, he has docketed 72.6 hours of time for his work and 9.7 hours at $70.00 per hour for his law clerk. The amount claimed is $18,829.00 plus HST of 2,447.77 which totals $21,276.77 calculated on a full indemnity rate of $250 per hour. Under Rule 18(14), Mr. Nagy agreed it should be billed on a partial indemnity basis to the time of making the offer. Hence, I reduce the amount claimed to $14,000 plus HST subject to the further comments made below with respect to the behaviour of the parties.
Assessment of Costs from June 7, 2018 to Conclusion of Trial
[21] From the time of the offer to settle to completion of trial, Mr. Nagy has claimed 257 hours for preparation and miscellaneous court attendances including fourteen days at trial. I have reviewed those dockets and note that they are rounded out to 12 hours per day during the trial (except for the last day which is 8 hours). I must say that based on the volume of documentation prepared and presented by both parties during this trial, I do not feel that the hours claimed by him are excessive, despite the objections to the contrary from the respondent in his written submissions. Mr. Nagy was well prepared during the trial which was a hotly contested and sometimes acrimonious affair even in the court room.
[22] Mr. Agboola contends that some of that time involved preparation for a motion before Reid J. He further submitted that the time claimed of 12 hours per day during trial was excessive. I do not agree. Having done trial work as a lawyer, I am well aware of the long, stressful hours required during a trial to properly present the case, particularly when the evidence each day is often different from what is expected. It is clear that Mr. Nagy carried that burden of long hours and much preparation during the trial. He has submitted that that amount of time was spent each day during the trial and I accept his submission. He is an officer of this court and well aware of his ethical obligations to always be truthful and accurate in his submissions to the court.
[23] In the circumstances, I allow the applicant 240 hours legal services rendered from the time of service of the offer to settle on June 6, 2018 to the conclusion of trial for trial preparation and counsel’s time at trial and miscellaneous attendances incidental to moving the matter to trial. Those hours are allowed at Mr. Nagy’s hourly rate of $250 as I feel that such an hourly rate is well below what he otherwise could have charged his client and successfully defended on an assessment of costs. Frankly, they are at a rate that I would otherwise have considered appropriate for an assessment on a partial indemnity basis. I am satisfied that the costs claimed are very reasonable and well within the reasonable anticipation of a largely unsuccessful party after a fourteen day trial.
[24] The applicant is therefore entitled to her costs from June 7, 2018 as follows:
$250 x 240 hours = $60,000 80% of $60,000 = $48,000 plus HST
Thus, I allow the applicant her costs on a full indemnity basis for eighty per cent of the amount claimed to reflect that fact that the respondent was successful on some of the issues otherwise before the court.
[25] As noted above, I find that the applicant’s behaviour both prior to trial and during the trial exacerbated the problems and it must be condemned by the court. The excerpts from my judgment outlined at paragraph 9 are just a small part of that behaviour reflecting her rude, sarcastic, demeaning and unfair comments repeatedly made to the respondent over an extended period of time. She agreed that her description of the respondent as a “penniless idiot” was totally inappropriate. She often would continue rude and inappropriate text messages to the respondent even after he had urged her to stop such dialogue.
[26] During the trial, she was often evasive in her testimony. In a responding affidavit filed earlier in the proceedings (during the Hague Application), she swore that she had never bitten Mr. Agboola. During this trial, she acknowledged that the respondent had asked her to present herself for an examination to determine if a bite mark on the respondent’s arm was consistent with her teeth. She refused at that time. When I directly asked her, she stated she did not know if she bit him, which frankly I disbelieved.
[27] She initially testified that she did not record phone calls between the respondent and his daughter Zoe. She later changed her testimony on this issue. When she was questioned about a trip she was planning to take to Maryland, she acknowledged that she had lied. She testified that she was the main income earner for the family prior to and during their time in bible college, but when cross-examined, it was evident that during those periods of time a significant amount of money was liquidated from Mr. Agboola’s accounts which were used for the needs of the family.
[28] In the circumstances, I find her behaviour should be sanctioned by the court by a twenty-five per cent reduction of the costs otherwise payable to her by the respondent. That reduction of twenty five per cent is not to apply to the disbursements which I have assessed below.
Disbursements
[29] Mr. Nagy has submitted a claim for disbursements of $5,431 plus HST. Those disbursements include photocopying and faxing 8560 pages at .50 per page. Mr. Agboola contends that such costs are excessive as copies can be made at commercial locations for a much lower cost per page. I concur and allow 15 cents per copy or $1284.00.
[30] Mr. Nagy has also listed courier expenses of $506.00 related to this matter. Mr. Agboola has indicated that he only received one courier delivery from Mr. Nagy’s office. In the circumstances, I would ask Mr. Nagy, if instructed to pursue the matter, to provide the respondent and the court with copies of invoices and supporting payment for courier expenses directly related to this matter. If he does not do so on or before September 30, 2019, the claim for courier expenses will be deleted from the claim for disbursements.
[31] I also reduce the amounts claimed for parking from $225.00 to $135.00 for the duration of the trial but recognize that for the settlement conference and other miscellaneous attendances, parking expenses would be incurred. Hence, I allow parking expenses of $155.00.
Conclusion
[32] Subject to a possible further submission with respect to courier disbursements from Mr. Nagy, it is ordered that the respondent shall pay the applicant her costs of this action as follows:
Costs from outset of action to June 6, 2018: $14,000 plus HST of $1820 totalling $15,820. After June 7, 2018 to conclusion of trial: $48,000 plus HST of $6,240 totalling $54,240. Total of the above: $70,060.00 inclusive of HST. Reduction of 25 per cent or $17,515 due to the applicant’s behaviour. Total assessed costs: $52,545.00 inclusive of HST. Total Assessed disbursements: $1814 plus HST of $235.82 totalling $2,049.82. Total Costs and Disbursements payable to the applicant by the respondent: $54,594.82.