Court File and Parties

Court File No.: FC-08-1821-2 Date: 2021/01/06 Superior Court of Justice - Ontario

Re: Liala Halawa, Applicant And Kane Richard Brady, Respondent

Before: Justice Engelking

Counsel: Tanya Davies, for the Applicant Michael Barnhart, for the Respondent

Heard: In writing

Endorsement on Costs

[1] An urgent motion was heard on September 2, 2020, and the court’s endorsement was released on September 3, 2020. The parties were invited to provide written submissions in the event that they were unable to agree on liability for costs. They have done so and this is my endorsement on costs for the Motion.

[2] In my endorsement, I noted that Ms. Halawa was the more successful party on the motion and was entitled to an award of costs. She seeks an order for costs on a full recovery basis of $25,872.48.

[3] Mr. Brady’s position is that those costs are excessive for a short motion, and submits that costs ought to be fixed at $3,000 inclusive of HST and disbursements.

[4] For the reasons that follow, I order that Mr. Brady pay to Ms. Halawa costs of $4,000 inclusive of HST and disbursements.

The Law

[5] The Ontario Court of Appeal has held that the Family Law Rules on costs 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.” Mattina v. Mattina, 2018 ONCA 867, paragraph 10.

[6] Rule 24(12) of the Rules sets out a list of factors the court shall consider in determining an appropriate amount of costs, including that there be reasonableness and proportionality in any costs award. Factors to be considered include each parties’ behaviour, their time spent, any offers to settle, legal fees, expert witness fees and any other properly paid expenses. Rule 18(14) provides that there are cost consequences to not accepting an offer if the criteria in that rule are met.

Analysis

[7] Ms. Halawa submits that Mr. Brady acted both unreasonably and in bad faith in not returning the parties’ child, Kai, pursuant to the previous order. While Mr. Brady may have acted unreasonably by exercising self-help, I do not find that his actions arose to the level of bad faith.

[8] Ms. Halawa submits that her counsel’s time spent on the motion was reasonable and appropriate. She has provided a Bill of Costs which identifies that an associate of Ms. Davies, “M.I.” spent a total of 50.12 hours at $275 per hour on the file, a law student, “V.M.” spent 11.25 hours (essentially doing clerical work) at $75 per hour and Ms. Davies herself spent 20.25 hours at $400 per hour.

[9] I have to agree with the submission of Mr. Brady that this is beyond excessive for a two-hour motion on a very specific issue of whether or not Mr. Brady was in contempt of the order of Justice McLean from 2013.

[10] The Bill of Costs does not break down the activities listed, or the time dedicated to each. It appears to me, that many of the activities are duplicated between M.I. and Ms. Davies, and, as is submitted by Mr. Brady, the activities listed under V.M. are essentially secretarial and should be subsumed within the operations of the firm.

[11] The total for M.I.’s time is $13,783; that for Ms. Davies is $8,100. Either would be more appropriate for a motion of this nature. Averaging them out and providing for costs on a partial indemnity basis results in a sum of approximately $3,600 in legal fees, which is within a reasonable range.

[12] No Offers to Settle appear to have been made by either party.

Order

[13] For the reasons outlined above, Mr. Brady shall pay of costs $4,000 to Ms. Halawa inclusive of HST and disbursements.

Justice Engelking Date: January 6, 2021