COURT FILE NO.: FS-16-181-00
DATE: 20210625
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BABIKER MOHAMED ALI HAMOUR
Applicant
– and –
ENTISAR ABDALLA AWOUDA HAMOUR
Respondent
J. Etienne, K. Smirnova and R. An, for the Applicant
J. Wilson and J. Waxman, for the Respondent
Cost submissions in writing
ENDORSEMENT ON COSTS
Justice Van Melle
[1] After a five day trial involving claims for equalization, unequal division, occupation rent, post-separation expenses, resulting trust and support, judgment was rendered in favour of the respondent.
[2] Given the respondent’s success at trial she is entitled to an award of costs.
[3] The respondent claims costs of $139,675.71 inclusive of H.S.T. and disbursements, on a full recovery basis.
[4] The applicant acknowledges that the respondent is entitled to her costs. He says that partial indemnity costs of $53,368.72 should be awarded in favour of the respondent.
[5] Rule 24(12) of the Family Law Rules provides that in setting the amount of costs, the court shall consider:
The reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
a) Each party’s behaviour;
b) The time spent by each party;
c) Any written offers to settle, including offers that do not meet the requirement of Rule 18;
d) Any legal fees, including the number of lawyers and their rates;
e) Any expert witness fees, including the number of experts and their rates;
f) Any other expenses properly paid or payable; and
g) Any other relevant matter.
[6] Prior to the parties’ Settlement Conference in September 2020 the respondent served an Offer on September 15, 2020, in which she offered to accept 90% of the proceeds of sale from the matrimonial home in full and final satisfaction of all outstanding claims including prospective child support and costs.
[7] On March 12, 2021 the respondent served a further Offer to Settle in which she requested 95% of the proceeds of sale in full and final satisfaction of all outstanding claims except for prospective child support in the amount of $1,300 per month for Dana. This offer remained open until trial.
[8] Rule 18(14) of the Family Rules provides:
A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
[9] Both Offers met the requirements of Rule 18. There is no question that the results achieved at trial were more favourable to the respondent than her Offers to Settle. With the exception of $3,500 paid to her former counsel, the balance of the claim for costs relates to work incurred after the date of the first offer. The $3,500 represents costs incurred for the period 2015-2019 related to preparation of answer and financial statement, attendance at the Case Conference and Settlement Conference.
[10] The applicant takes issue with the amount of costs claimed. He says that the respondent’s Bill of Costs is disproportionately high. He also cites some duplication of effort by counsel. He uses his counsel’s Bill of Costs in the amount of $113,344.65 to support this contention. The fact that his Counsels’ Bill of Costs is lower than the respondent’s is not surprising. As I said in my Reasons for Judgment, reams of documents were produced by the applicant. These documents had to be reviewed and analyzed by respondent’s counsel. It stands to reason that the respondent’s bill of costs is higher than the applicant’s.
[11] I have reviewed the respondent’s Bill of Costs and find it to be reasonable when bearing in mind the work that was done and the results obtained.
[12] Although I am satisfied that full recovery costs are warranted by the offers to settle that were not accepted, I find that full recovery costs are also warranted by the applicant’s behaviour. Rule 24(8) provides:
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
[13] In my judgement, I found that the applicant was not truthful in his testimony and was not forthcoming with the necessary disclosure. He embarked upon a course of conduct designed to leave the respondent without the children and without financial resources. He convinced the three older children to live with him and he left the respondent with no financial resources from the separation in 2015 until the trial in 2021.
[14] The applicant says that his conduct was reasonable, yet he claimed spousal support and child support from the respondent (and asked for income to be imputed to her) despite the fact that throughout the marriage she was financially dependant upon him. He sought to have the respondent share a post-separation debt despite the fact that she had no knowledge of the debt and had not agreed to it.
[15] The applicant asked for reimbursement of post-separation payments that he had made on behalf of the respondent without providing particulars of such payments. The applicant sought occupation rent without providing any evidence as to what amount the occupation rent should be. The applicant sought a contribution to section 7 expenses, again without particularizing that demand. The applicant sought to include only the separation date value of the matrimonial home on his net family property statement without providing a certified appraisal. This litigation behaviour must be strongly discouraged.
[16] These claims were advanced in bad faith to discourage the respondent from pursuing her claims and to cause her to incur legal fees to deal with these spurious claims. The cumulative effect of his claims rise to the level contemplated by the Family Law Rules.
[17] The applicant asks that the amount of costs be considered in light of the fact that he supports the three oldest children. This completely ignores my finding after trial that the applicant’s income is much greater than he said it was. He lied about his income and assets throughout. He pays for the children’s post secondary expenses without any contribution from the children. He has the ability to pay costs.
[18] In determining the amount of costs, the applicant suggests that the hourly rates of counsel should be determined by reference to the Law Society of Ontario Fee Schedule. He appends to his submission a copy of the fee schedule without explaining what the schedule is to be used for. It appears from the Law Society of Ontario’s website that the schedule applies to lawyers who do work for the Law Society of Ontario. I am not bound by a fee schedule in assessing the respondent’s costs.
[19] The applicant relies upon Bloor Parliament (Block A) Investments Limited v. Sherbourne Residential (Concert) LP, 2021 ONSC 929, for the proposition that normally costs associated with the determination of costs, including the preparation of costs submissions, are not included in costs awards. That case was decided under the Rules of Civil Procedure and dealt with an award of partial indemnity costs. Here, there is no reason to exclude preparation of costs submissions.
[20] The respondent seeks to have the costs award enforced as a child and/or spousal support. Child support and spousal support were central issues at trial. As the respondent limited her claim to the funds held in trust from the matrimonial home, her total recovery was much less than it could have been had she not done so. In examining the claim for retroactive child and spousal support and a lump sum payment for prospective spousal support, I agree with the respondent, that the amount makes up a significant portion of the monetary relief granted to the respondent at trial.
[21] An order will issue that the applicant pay to the respondent her costs on a full recovery basis in the amount of $139,675.71 inclusive of H.S.T. and disbursements. The costs are payable immediately. The award of costs is to be enforceable through the Family Responsibility Office as child and spousal support.
Van Melle J.
Released: June 25, 2021
COURT FILE NO.: FS-16-181-00
DATE: 20210625
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BABIKER MOHAMED ALI HAMOUR
Applicant
– and –
ENTISAR ABDALLA AWOUDA HAMOUR
Respondent
ENDORSEMENT ON COSTS
Van Melle J.
Released: June 25, 2021