COURT FILE NO.: FC-17-985
DATE: 2021/04/01
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: RUBY DAGHER, Applicant
AND
JEAN HAJJ, Respondent
BEFORE: Justice Sylvia Corthorn
COUNSEL: Emily Comor, for the Applicant
Jean Hajj, Self-represented Respondent
HEARD: In Writing
costs ENDORSEMENT
Introduction
[1] In January 2021, I released my ruling on the applicant mother’s motion for disclosure: Dagher v. Hajj, 2021 ONSC 93 (“the Ruling”). The Ruling addresses 22 disclosure items. In summary,
• the respondent father produced three of the items requested after being served with the motion record and prior to the return of the motion;
• the respondent father was ordered to produce 16 of the remaining 19 items that were addressed on the motion; and
• the motion with respect to the final three items was dismissed – because of lack of supporting evidence – without prejudice to the applicant renewing her request for production of those items at a later date.
[2] The Ruling identified a period during which the parties had an opportunity to resolve the issue of costs. They were unable to resolve the costs of the motion. They each delivered written submissions.
[3] The applicant’s written submissions comply with the order made with respect to the maximum length permitted: the Ruling, at para. 29(a). The respondent’s written submissions exceed the limit set for the number of pages. Regardless, I have considered the entirety of the respondent’s submissions.
[4] The respondent included with his submissions a zip file containing copies of tens of documents. The inclusion of a zip file of that kind is not in keeping with the order made with respect to costs submissions. I, therefore, have not reviewed the multitude of documents included in the zip file.
Positions of the Parties
[5] The applicant submits that, as the successful party she is presumptively entitled to her costs of the motion. She submits that the respondent’s repeated failure to comply with disclosure orders – made in June 2018 (Justice Roger) and March 2019 (Justice Shelston) – is unreasonable. She asks the court to find that the respondent acted in bad faith. The applicant seeks costs, on a full indemnity basis, in the amount of $6,342.15.
[6] The respondent submits that the applicant has been unrelenting in her pursuit of disclosure. He portrays the applicant as impossible to satisfy in terms of the disclosure requested. He requests that there be no order as to costs on the motion. In the alternative, he asks the court to consider his limited financial means and award a modest amount for costs.
Disposition
[7] For the reasons set out in the Analysis section, below, I order that the respondent pay to the applicant the sum of $5,000.00 for her costs of the motion. In addition, the respondent shall pay to the applicant the sum of $650.00 inclusive of both fees and HST for the costs submissions portion of this matter. In total, the respondent shall pay to the applicant costs in the amount of $5,650.00.
Analysis
[8] The issues to be determined at trial include (a) whether income is to be imputed to the respondent, and (b) the respondent’s income for the purpose of child support and Section 7 expenses. As a result, the respondent’s financial circumstances over time are relevant. The respondent’s financial circumstances are somewhat complicated by reason of the various bank accounts he has held, the multiple credit cards he has held, his reliance on service providers such as Airbnb and Paypal with respect to property rental, and changes in his employment status over time.
[9] I find that the applicant took a reasonable approach to the deficiencies in the respondent’s disclosure. Attempts were made to resolve the deficiencies without resorting to a motion. It was not until the trial date loomed – some three months away – that the applicant chose to pursue a motion. I draw an inference and find that the applicant (a) did so appreciating that bringing the motion might result in an adjournment of the trial, and (b) chose to risk delaying the trial in an effort to ensure that she is as fully prepared for trial (and any settlement discussions that may occur) as is practicably possible.
[10] The materials delivered by the applicant were detailed. The materials included a thorough review of the disclosure to date and the alleged deficiencies in that disclosure. That level of detail contributed to an efficient hearing of the motion.
[11] The applicant’s counsel has been in practice for 17 years. Her full indemnity hourly rate is $350. I find that rate to be reasonable.
[12] The applicant’s bill of costs identifies that counsel’s time related to the motion is 15.4 hours. An additional 1.9 hours was spent preparing the costs submissions. A breakdown is provided for the time on the motion. I find that the time spent both on the motion and on the costs submissions is reasonable and proportionate to the importance of the issues on the motion.
[13] I agree with the applicant that the respondent’s protracted approach to fulfilling his disclosure obligations has resulted in delay of the trial. I am not prepared to find that the respondent acted in bad faith in that regard. As a result, I award costs to the applicant in an amount slightly less than full indemnity.
[14] The respondent shall pay to the applicant her costs of the motion in the amount of $5,000.00 inclusive of both fees and HST. The respondent shall also pay to the applicant her costs of $650.00 inclusive of both fees and HST for the costs submissions portion of this matter. I note that no amount is claimed for disbursements.
Madam Justice Sylvia Corthorn
Date: April 1, 2021
COURT FILE NO.: FC-17-985
DATE: 2021/04/01
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: RUBY DAGHER, Applicant
AND
JEAN HAJJ, Respondent
BEFORE: Justice Sylvia Corthorn
COUNSEL: Emily Comor, for the Applicant
Jean Hajj, Self-represented Respondent
costs ENDORSEMENT
Corthorn J.
Released: April 1, 2021