Court File and Parties

NEWMARKET COURT FILE NO.: FC-18-56488-00 DATE: 2019-09-19 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Mahsa Mizrahi, Applicant AND: Jan Mizrahi, Respondent

BEFORE: The Honourable Madam Justice H. McGee

COUNSEL: M. Lawson, Counsel for the Applicant Respondent – Self-represented

COSTS ENDORSEMENT

[1] In reasons released July 26, 2019, I reduced the temporary amount of table child support that Mr. Mizrahi was ordered to pay on February 20, 2019 from $18,800 a month to $9,277. The amount of $15,000 in monthly spousal support was not changed. Mr. Mizrahi had asked that both his child and spousal support be reduced commensurate with his updated income assessment.

[2] Mr. Mizrahi now asks for costs of $26,312.38 on his one-hour motion. He argues that he was the successful party and is entitled to a substantial indemnity recovery because his July 15, 2019 Offer to Settle contained a severable term for child support ($11,400 per month) that was more favourable to Ms. Mizrahi than the $9,277 ordered on motion.

[3] Ms. Mizrahi asks that no costs be ordered, arguing that Mr. Mizrahi had only divided success because the amount of spousal support was not changed.

Mr. Mizrahi’s Second Motion was not Severable

[4] Mr. Mizrahi made two Offers to Settle the motion. He acknowledges that his first Offer served July 8, 2019 was not more favourable to Ms. Mizrahi because it contained terms for the reduction of both child and spousal support. He proposes that his second Offer dated July 15, 2019 did contain a severable term for child support.

[5] This is a curious proposal. I have carefully reviewed both Offers made by Mr. Mizrahi and neither contains a term severing the Offer for child support from the Offer for spousal support. There is no language in either Offer that would permit Ms. Mizrahi to accept only the amount of child support without a reduction in spousal support from $15,000 per month to $8,000 per month.

[6] Mr. Mizrahi’s Reply submissions explain why he would make such a misleading statement. He opines that by removing a sentence from his July 8, 2019 Offer: “[t]he terms of this offer to settle are not severable” the terms of his July 15, 2019 Offer became severable. This is an error. An Offer must be read as a whole. For a term in an Offer to be severable, i.e., capable of being accepted as a stand-alone contract, the term must be expressly stated as such. Severability can be neither inferred, nor read in.

[7] I also reject Mr. Mizrahi’s “back of the envelop” calculation of the after-tax savings to Ms. Mizrahi that might have resulted from acceptance of either of his Offers. The net benefit/cost of spousal support is far more complicated than he presents. Should he wish to pursue this argument in later proceedings, he ought to prepare a corresponding DivorceMate calculation.

Full Recovery not Available

[8] I reject Mr. Mizrahi’s insistence on a full recovery of his proposed costs. A full recovery can be obtained when there has been a finding of bad faith, or when the successful party has served an Offer with terms as favourable or more favourable than those ordered at the hearing, per Rule 18(14). Neither situation applies to this costs endorsement. Neither party even cites Rule 18.

[9] Moreover, a litigant cannot obtain a full recovery of costs when he was only partially successful on his motion. Spousal support was not reduced. For the reasons given, I specifically declined to reduce the earlier Order for spousal support made by Justice Nicholson because the amount of $15,000 per month was within the Spousal Support Advisory Guidelines range for the updated assessment of income.

No Divided Success

[10] Ms. Mizrahi asks that this partial success be interpreted as divided success per Rule 24(6) so that she does not have to pay any costs. As well established in cases such as Jackson v. Mayerle, 2016 ONSC 1556[^1], divided success does not mean equal success. Success requires a comparative analysis as most family cases consist of multiple, interrelated issues, not all of which are equally important, time-consuming or expensive to determine.

[11] The primary issue on this motion was whether Mr. Mizrahi’s income for support purposes was different from what was determined in February 2019. I found that it was, and as a result the table child support automatically reduced. Because the spousal support on the prior determined income was already well below the SSAG range and Ms. Mizrahi’s need for spousal support had not changed, I did not reduce the spousal support.

[12] Ms. Mizrahi was somewhat successful, in that the amount of spousal support did not reduce; but she was not successful because her view of Mr. Mizrahi’s income prevailed. His income for support purposes was the primary issue and he was wholly successful on that issue. She did not serve an Offer with terms as favourable or more favourable than the result on the motion. I therefore find that Mr. Mizrahi is entitled to a partial recovery of his costs.

Factors in Assessing Reasonable and Proportionate Costs to Mr. Mizrahi

[13] The first step in assessing a partial recovery is to identify the full range of costs.

[14] Each party has comprehensively set out the purposes of a costs award: to partially indemnify successful litigants, to encourage settlement, to discourage and sanction inappropriate behaviour by litigants; and to ensure that cases are dealt with justly.[^2] Each party has referenced the factors in determining costs as set out in Rule 24(12):

Setting Costs Amounts

(12) In setting the amount of costs, the court shall consider,

(a) 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 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 or payable; and

(b) any other relevant matter. O. Reg. 298/18, s. 14.

[15] I accept the parties’ mutual view that this was a motion of great importance to each of them. It was not however, a particularly complex motion. There was a different result on this motion because Mr. Mizrahi now has a valuation of his income. The valuation demonstrated on a prima facie basis, a change in income since the prior Order.

[16] This would not be an atypical assessment of costs but for the amount claimed by Mr. Mizrahi for his time spent. He sets out a high number of hours for each task, multiplied by an hourly rate akin to that of a lawyer.

[17] Rule 24(12) (ii) requires the court to consider the time spent by each party in preparing for, travelling to and attending on this motion. In Jordan v. Stewart, 2013 ONSC 5037[^3] Justice Czutrin observes that all litigants suffer a loss of time through their involvement in the legal process, including preparation time and attendance at court. That time is not necessarily recoverable. Evidencing one’s claim, carefully organizing and disclosing documents, preparing for and attending court is the duty of all litigants.

[18] A party cannot simply reconstruct his personal time as lay legal fees claimed against the other party. His time is not equivalent. There is no preparation available at a lower hourly rate, such as by an associate lawyer or law clerk, there is no experience and expertise that reduces the length of the task.[^4]

[19] On a case by case basis, there may be certain time that a self-represented person spends on the matter that should be compensated by costs; and as with all costs awards, the award must be reasonable and proportionate. In my view, compensable time should relate to tasks ordinarily performed by a lawyer, or time that directly forced a reduction in the income of the self-represented person or unavoidably increased his personal expenses.

[20] Ultimately, a costs decision must consider all the factors within the overall context of the event. Even for represented litigants, an appropriate amount of costs is not a reimbursement of every dollar spent, but instead, must be an award that is fair, proportionate and reasonable in the particular proceeding.

[21] I consider the appropriate range of costs on a motion of this nature to be $6-8,000. This amount is exclusive of the full costs of the income valuation which are not clear to me on this record and are better recovered at trial, after the report has been tested.

[22] Given the importance of the issues, the amount of costs proportionate to the amounts of support sought, and Mr. Mizrahi’s preparation time, I am drawn to the higher end of the range. I balance that with the facts that Mr. Mizrahi gave no evidence that he suffered any loss in income or incurred any personal expenses in the course of preparing the motion. I therefore settle on the middle amount of $7,000, a partial recovery of which I set at $4,000 inclusive of disbursements, plus HST for a total of $4,520. Order to issue accordingly.

Justice H. McGee Date: September 19, 2019

[^1]: 2016 ONSC 1556 [^2]: As recently set out in Mattina v. Mattina, 2018 ONCA 867, 2018 CarswellOnt 17838 ONCA [^3]: 2013 ONSC 5037 [^4]: For example, Mr. Mizrahi claims 20 hours for the preparation of his affidavit, which I find to be excessive.