COURT FILE NO.: FS-19-0031-00

DATE: 2020 08 26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

YAHYA ABBAS

Ronald B. Moldaver, for the Appellant/Respondent on Cross-Appeal

Appellant

• and -

METHAQ ABOHAMRAH

Elaheh (Ella) Aiaseh, for the Respondent/Appellant on Cross-Appeal

Respondent

HEARD: IN WRITING

COSTS ENDORSEMENT

McSweeney J.

The Issue

1On January 28, 2020 I released my decision in this appeal (reported at 2020 ONSC 591). I dismissed both the appeal and cross-appeal.

2My decision stated as follows regarding entitlement to costs: “Ms. Abohamrah was the more successful party as the appeal was dismissed in full. She was unsuccessful only on the cross-appeal by which she sought to increase the amount of income imputed to Mr. Abbas. Ms. Abohamrah is presumptively entitled to her costs on this appeal.”

3I have now received and reviewed the submissions of both parties.

4The Respondent Ms. Abohamrah seeks full indemnity costs of $40,872.55. The Appellant Mr. Abbas takes the position that the costs claimed are excessive and not proportionate to the work required on the appeal. His position is that $7,500.00 is an appropriate amount of costs in the circumstances.

Authorities

5The relevant statutory and common law framework for determining costs in family law matters was summarized helpfully by the Court of Appeal for Ontario in Mattina v. Mattina, 2018 ONCA 867 as follows:

[9] Section 131(1) of the Courts of Justice Act, provides that cost orders are in the discretion of the court. Rule 24 of the Family Law Rules sets out a framework for awarding costs for family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice. Although the Family Law Rules do not expressly govern costs awards in the Court of Appeal, they have been used to guide this court’s analysis on costs in family law disputes.

[10] This court has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants. Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly, and Rule 24(12), which sets out factors relevant to setting the amount of costs, specifically emphasizes “reasonableness and proportionality” in any costs award.

[11] The Family Law Rules are a marked departure from some aspects of the Rules of Civil Procedure. As such, case law pertaining to costs decided under the Rules of Civil Procedure should be approached with some caution.

[12] Rule 24(1) creates a presumption of costs in favour of the successful party of a motion, case, or appeal and the presumption that a successful party is entitled to costs applies equally to custody and access cases.

[13] Consideration of success is the starting point in determining costs. This presumption does not, however, require that the successful party always be entitled to costs. An award of costs is subject to: the factors listed in r. 24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party.

[14] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:

(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.

[15] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14).

[16] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably:

Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.

[17] Rule 24(5) provides guidance on how to evaluate reasonableness:

In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

[18] Rule 24(8) discusses the cost consequences for a party who has acted in bad faith:

If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. [Citations removed]

Submissions of the parties

6Ms. Abohamrah breaks down her bill of costs on the appeal into four categories (full indemnity totals shown):

(a) Meetings with client and correspondence between counsel: 26 staff hours, 8.3 lawyer hours, total claimed $9,104.98

(b) Court attendances re scheduling appeal: 9.9 lawyer hours, total claimed $4,195.13

(c) Preparation for appeal: 40.6 lawyer hours, 18.6 staff hours, total $21,287.51

(d) Attendance at court to argue appeal: 10.9 lawyer hours, total claimed $4,618.88

(e) Disbursements: $1,342.05

7Ms. Abohamrah argues that extra time was necessarily spent by her counsel to take out the trial judge’s order and attend on four separate dates at scheduling court regarding the scheduling of the appeal, as the appeal transcripts were not ready. As a result, the costs incurred to successfully defend the trial decision on appeal were reasonable and proportionate to the issues and the work required.

8Mr. Abbas argues that since he was the Appellant, the majority of the work to prepare and perfect the appeal was done by him. As Respondent on appeal, Ms. Abohamrah’s bill of costs is excessive as to time spent. Costs should be awarded on a partial indemnity scale.

Analysis

9I have reviewed and considered the parties’ submissions including Respondent counsel’s oral submissions and her Bill of costs handed up at the conclusion of the appeal hearing; the Appellant’s responding submissions in writing subsequently filed, and the Respondent’s Reply submissions filed with permission of the court.

10The appeal was heard over two days. The issues were primarily fact driven, and not legally complex. No relevant offers to settle were filed.

11The Respondent’s Bill of Costs is in my view too high to be described as “reasonable and proportionate” costs for preparing and filing materials and arguing the appeal. Specific concerns are noted below. The amalgamated time summaries without dockets leave the court to make its best assessment on the material as filed.

Success of the Respondent

12In his appeal, Mr Abbas challenged both the trial judge’s decision to award sole custody to the Respondent, as well as the income imputed to him for child support purposes. I dismissed his appeal and upheld the trial decision on all grounds.

13Although Ms. Abohamrah was unsuccessful on her Cross-appeal, this is not a case of divided success. I say this because Mr Abbas was unsuccessful on all issues he argued, including his challenge to the trial judge’s income imputation analysis on the basis that it was too high. Ms. Abohamrah was also unsuccessful in establishing that the income imputed to the Appellant was too low.

14Nonetheless, it is appropriate in my view, that I take some reduction for the time spent by Ms. Abohamrah’s counsel to research and draft the cross-appeal.

Scale of costs

15The Respondent seeks full indemnity costs of the appeal on the basis that the Appellant’s counsel behaved unreasonably in dealing with her, specifically in failing to take out the order as required for perfection of the appeal.

16The Respondent’s counsel filed email exchanges between counsel. On reviewing these I observed an abrupt and frustrated tone on the part of Appellant’s counsel, and a frustrated but somewhat more patient tone on the part of the Respondent’s counsel. I also note that these emails were filed by the Respondent in her reply. Without the benefit of the Appellant’s submissions on this point, I am cautious as to what weight to give this argument, as there may have been other exchanges between counsel which would give another context.

17Overall, the Respondent’s materials and submissions are not sufficient to demonstrate unreasonableness for which full indemnity costs are indicated. Partial indemnity is therefore the appropriate scale for costs.

18However, I note that the Appellant does not dispute that the Respondent’s counsel was more involved in ensuring the issuance of orders required for the perfection of the appeal. To recognize this additional work, I will allow more hours in the category described in the Bill of Costs as “Meetings with client and correspondence between counsel” than I would otherwise have done.

19Deduction is appropriate for what I observed to be non-appeal related work described in the Bill of Costs. A review of steps described under the category “completing Family Responsibility forms” and references to child support payments indicates counsel and staff were also performing and docketing to the Appeal file for work assisting the Respondent with child support collection matters.

20The Respondent’s Bill of Costs does not include line item entries, nor sufficient detail overall, to enable me to identify the total lawyer and staff hours spent on these non-appeal issues. A significant deduction to the junior counsel and staff hours claimed in the “Meetings with client and correspondence between counsel” is appropriate in light of the inclusion of non-appeal issues.

Hourly rates

21The full indemnity hourly rates for 5-year counsel ($375.00) and 21-year ($450.00) family law counsel are in my view high, but not unreasonable.

22The Appellant does not take issue with the hourly rates claimed. A partial indemnity rate of $250.00 per hour for junior counsel and $300.00 for senior counsel is therefore appropriate.

23The other rate claimed by the Respondent is $185.00/hour for two people described only as “assistant”. These individuals are not identified as having particular skills such as law clerks or students-at-law to justify this significant hourly rate for their time. 26 hours are included in the Bill of Costs for Assistant time relating to Correspondence with the court and the Appellant’s counsel’s office.

24Without a line item description of the work performed by staff, I cannot determine whether the “assistants” were doing regular office administrative tasks which should properly fall within office overhead, or were providing more value-added work relating specifically to the appeal. Assuming that some of the tasks relating to the preparation, copying and filing of appeal materials was appropriately performed by non-legal staff, I have allowed some “Assistant” time at a rate of $100.00 per hour. I have allowed 4 staff hours at this rate under the “Meetings with client and correspondence between counsel” category and 8 hours in the Preparation of Appeal category.

Hours claimed

25I have no difficulty with the reasonableness of the hours claimed for junior counsel to attend and argue the appeal.

26Nor is issue taken by the Appellant or this court with the total for disbursements claimed.

27It appears that senior counsel time was used reasonably and sparingly, and the amount claimed for Mr. Bhathal’s time is approved in full at $300.00/hour.

28The majority of legal work, and all court attendances, were performed by 5-year counsel. I have reduced junior counsel time, as referenced elsewhere, under all categories except her attendance at the appeal.

29With respect to time spent on appeal preparation, I agree with the Appellant’s submission that the larger share of the appeal preparation fell to the Appellant. The total hours claimed for preparation of responding appeal materials is in my view not reasonable. Specific deduction is also made for the cross-appeal preparation.

30The Respondent claims 9.9 lawyer hours for attending Brampton Scheduling Court on four occasions. This is almost the same amount claimed for arguing the two-day appeal. This amount is reduced to four hours.

Result

31For the reasons given, I find that it would be fair, reasonable and proportionate in the circumstances to award costs in the categories claimed by the Respondent as follows:

a) Meetings with client and correspondence between counsel: $1,840.00 + HST;

b) Court attendances re scheduling appeal: $1,000.00 + HST

c) Preparation for appeal: $7,740.00 + HST

d) Attendance at court to argue appeal (heard over 2 days): $2,725.00 + HST

e) Disbursements: $1,342.05 (HST included)

32The total of $16,376.70 is payable by Mr. Abbas to Ms. Abohamrah within 30 days.

33This endorsement is effective as an order of the court when made. No formal order is required.

34This order bears interest pursuant to the Courts of Justice Act.

McSweeney J.