ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STACEY FIRTH
Applicant
– and –
KHALID MOHAMED
Respondent
Areesha Subair/Tanya Davies, for the Applicant
Fan Mackenzie, for the Respondent
HEARD: By written submissions
decision on costs
Audet J.
[1]
Background
On August 20, 2020, I heard a motion brought by the applicant mother seeking permission to relocate to New-Brunswick, from Ottawa, on a temporary basis. For reasons set out in my Decision released on August 21, 2020 (2020 ONSC 5047), I permitted the move.
2If the parties were unable to resolve the issue of costs between them, I directed them to provide me with written submissions on costs. I have received those submissions, and this is my decision on costs.
[3]
Positions of the Parties
The mother seeks an award of costs which approaches full recovery costs, in the amount of $36,377.24. She states that, as the successful party who behaved reasonably, she is entitled to costs approaching full recovery. The amount she claims, however, is equal to 100% of the costs incurred by her.
4The father seeks an order that each party bears their own costs. He submits that his Offer to Settle dated August 18, which was severable, would have provided the mother with a result that was as favourable or more favourable than the result she achieved at the motion. He also submits that he is unable to pay an award of costs due to financial strains, and that the amount of costs claimed by the mother is grossly excessive.
[5]
Offers to Settle
Except for the father’s Offer to Settle dated August 18, 2020, I find that none of the Offers to Settle made by the parties included terms which, if accepted, would have been as favourable to the other party or more favourable than the result achieved. The father’s Offer to Settle dated August 18, however, was severable, and included a stand-alone provision allowing the mother to move to New-Brunswick with the child on a temporary basis. In addition, all the temporary access terms contained in that Offer were also severable, such that it was open to the mother to accept only those access provisions with which she agreed (remote access, March Break, Winter Break).
6While I agree that the father’s Offer did not contain a provision dealing with temporary custody or travel costs, which my decision did, if accepted in full or in part it would have significantly narrowed down the issues for the motion hearing, and perhaps not required one at all. As stated earlier, the main issue in this motion was the mother’s wish to relocate. I find that the father’s August 18 Offer to Settle was as favourable to the mother or more favourable than the outcome she achieved at the motion on the main issue of relocation, and as such, I find that he is entitled to the vast majority of his costs from the date of his Offer to and including the motion hearing. Unfortunately for the father, his Offer was only made two days before the motion hearing.
7As the successful party, the mother is presumed entitled to her costs for the balance of the motion (i.e., all work up to August 18, 2020) on a partial indemnity basis (and not on a scale approaching full recovery, as argued by her).
[8]
Reasonableness and Proportionality of Costs
Neither party is taking the position that the other behaved unreasonably or in bad faith. The crux of the parties’ dispute in relation to costs is whether the amount of legal fees paid by the mother to her counsel is reasonable and proportionate having regards to the various factors set out in subrule 24(12). I find that it is not.
9Counsel for the mother charged a total of $36,377.24 (inclusive of HST) to prepare and argue the one-hour motion, in addition to $3,488.87 (inclusive of HST) for the preparation of costs submissions. In contrast, counsel for the father charged a total of $8,212.26 (inclusive of HST) for the one-hour motion, and $922.65 (inclusive of HST) for the preparation of cost submissions. For all work completed up until August 18, 2020 (the date from which the father is entitled to his costs based on the Offer he made), counsel for the mother invoiced a total of $25,868.24 inclusive of HST (in other words, the mother was charged a total of $9,300 plus HST for her counsel’s preparation and attendance at the motion which lasted one hour).
10I agree with the father’s counsel submissions that the fees charged to the mother were excessive and not proportional to the issues before the court. While I appreciate that the mother’s request to relocate to New-Brunswick with the child was very important to both parties, it in no way justified the amount of costs incurred by the mother. In particular, I find that:
the mother’s Bill of Costs includes work that was not related to the motion (application, financial statement);
time was charged by Ms. Zubair to prepare her oral submissions ($1,050) even though she did not speak at the motion (Ms. Davies argued the motion);
a total of six different legal professionals (not including admin staff) worked on this file (one senior lawyer, one senior associate, two junior associates and two law students), many simply and obviously duplicating the work already done by others;
a significant number of administrative tasks (such as serving and filing materials) was completed by a “senior associate” who charged $300 an hour;
in support of her motion, the mother filed a Notice of Motion, one affidavit (3 pages in length plus exhibits), one reply affidavit (8 pages in length plus exhibits) and a Factum. For this work, her counsel charged her a total of 83 hours of legal work (excluding preparation of oral submissions and attendance at the motion), totalling, as stated above, over $25,000 of legal fees.
11I concur with Justice Wildman in Sepiashvili v. Sepiashvili (2001), 2001 25708 (ON SC), 2001 CarswellOnt 3459 (Ont. S.C.J.) at para. 20 where he says:
...Regardless of the outcome of the case, a client is not entitled to direct vast resources to litigation and expect full reimbursement. When the rules use the term "full recovery costs", there is an implied qualification that the costs incurred must be reasonable. There must be some assessment of the most effective use of resources to present the case, and some attempt to approach the matter in a cost-effective manner....
12In light of the fees charged by counsel for the father, accepting that the mother’s costs would be higher than the father’s given the higher hourly rate charged her counsel, and given that she is the successful party in this motion which entitles her to her costs on a partial indemnity basis for fees charged up to August 18, I find that an award of costs in the amount of $6,000 is reasonable in the circumstances. Given that the father’s August 18 severable Offer to Settle entitles him to his costs from August 18 to and including the motion hearing (for which he was charged roughly $1,000), I find that the mother is entitled to her costs in the amount of $5,000, all inclusive.
[13]
Ability to Pay
The father states that he is unable to pay any award of costs. He says that his income is lower than the mother’s and that he has debts (not including his mortgage) in the amount of $33,500, which makes him impecunious. I am not prepared to take into consideration debts incurred by the father on his own, and which have no relation whatsoever with the parties’ relationship or its breakdown. The father is a public servant who earns $78,951 per annum. Almost half of the debt he claims to have is owed to a non-arm’s length, related party. Even if I were to find him to be impecunious, which I do not, a party’s limited financial circumstances cannot be used as a shield against any liability for costs. The father has chosen to pursue this motion to the end, and he has lost. That decision comes with consequences.
[14]
Disposition
An order shall therefore issue requiring the father to pay costs of $5,000 to the mother, payable forthwith.
Madam Justice Julie Audet
Released: October 27, 2020
COURT FILE NO.: FC-20-970
DATE: 20201027
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STACEY FIRTH
Applicant
– and –
KHALID MOHAMED
Respondent
decision on costs
Audet J.
Released: October 27, 2020