Court File and Parties
COURT FILE NO.: FC-15-1468 DATE: 2021-09-27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rehab Alsalem, Applicant AND Khalid Fahad Aba-Alkhail, Respondent Munirah Othman Aba-Alkhail, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Altynay Teshebaeva, Counsel for the Applicant Julie Gravelle, Counsel for the Respondent Khalid Fahad Aba-Alkhail Khalid M. Elgazzar, Counsel for the Respondent Munirah Othman Aba-Alkhail
HEARD: In writing
COSTS DECISION
M. Smith J
[1] The Respondent Khalid Fahad Aba-Alkhail (the “Father”) brought a summary judgment Motion seeking a finding that the matrimonial home was held in trust by the Applicant Rehab Alsalem (the “Mother”) for the benefit of both parties and that it would be sold within 30 days. On December 21, 2020, I rendered my decision in favour of the Father (Alsalem v. Aba-Alkhail et al., 2020 ONSC 8005).
[2] The parties were unable to agree on the costs of the Motion.
[3] The Father seeks a cost award in the amount of $17,317.60, representing his actual cost, inclusive of taxes and disbursements.
[4] The Mother asks for an Order that the parties bear their own costs of the Motion.
LEGAL PRINCIPLES
[5] Costs orders are at the discretion of the Court (section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43). The framework in awarding costs is set out at r. 24 of the Family Law Rules, O.Reg. 114/99 (the “FLR”).
[6] Rule 24(1) of the FLR creates a presumption of costs in favour of the successful party. In setting the amount of costs, the Court shall consider the factors outlined in r. 24(12) of the FLR, which includes the importance and complexity of the issues, the parties’ behaviour, the time spent, written offers, legal fees, expert witness fees and any other property payable expenses.
[7] Rule 18(14) of the FLR sets out the conditions to be met to trigger the cost consequences (full recovery of costs from the date of offer) if a party fails to accept the offer to settle. An offer to settle must be as good or more favourable than the results achieved. Close is not good enough.
[8] Modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (Mattina v. Mattina, 2018 ONCA 867).
[9] Partial indemnity is commonly awarded unless there are compelling reasons to justify an award at the higher scale.
[10] A partial indemnity award ranges from 60 to 70% of the actual costs incurred by the party (Mattina v. Mattina).
[11] Proportionality and reasonableness are the touchstone considerations that need to be applied when fixing an amount of costs (Beaver v. Hill, 2018 ONCA 840).
ANALYSIS
[12] The Mother takes the position that the Father was not successful at the Motion because the Order obtained is not exactly as requested by the Father in the Amended Notice of Motion. I disagree.
[13] The Father asked and obtained a summary judgment finding that the matrimonial home was held in trust by the Mother. While the Father requested that the house be sold within 30 days, it was ordered that it be listed for sale within 45 days and that the parties cooperate within one another regarding the sale. The matter was also listed for trial. In sum, the Father was successful on most of the relief sought in the Amended Notice of Motion.
[14] The Father is therefore presumptively entitled to his costs.
[15] The Father is seeking full recovery of his costs. A cost award of this kind is warranted if the other party acted in a reprehensible manner or if the Order obtained by the successful party was substantially more favourable than a formal offer to settle.
[16] The Father does not claim that the Mother acted unreasonably. Rather, he argues that he should be fully compensated because the Mother should have accepted his offer that was more or less the same result from the Motion.
[17] The Father does not attach a copy of the offer to settle dated December 2, 2020. Excerpts of the offer (paragraphs (e) to (h)) were outlined in his cost submissions. Invariably, there were other parts to the offer to settle (paragraphs (a) to (d)) but it is unknown if the Father obtained a more favourable result on that portion of the offer to settle. On the information provided to me, I am not satisfied that the costs consequences of r. 18(14) have been triggered.
[18] A partial indemnity cost award is appropriate in this case.
[19] Although this was a summary judgment Motion, the issues in dispute were not overly complex. They were however important to the parties.
[20] The cost award should be within the reasonable expectation of the parties. Here, the materials filed on the Motion were not voluminous. Counsel for the Mother spent 32.8 hours in preparation time and 3.5 hours in Court attendance time, at a rate of $250.00 per hour (2015 call to the Bar). Counsel for the Father spent a total of 50.9 hours at a rate of $300.00 per hour (2005 call to the Bar). The hours spent by a moving party are usually higher than a responding party. For this case, I believe that 40 hours of time falls within the realm of what may have been expected for a motion of this kind. Also, the hourly rate charged to the Father is reasonable, considering the year of call to the Bar.
CONCLUSION
[21] For the reasons stated above and in applying the overriding principles of fairness, proportionality, and reasonableness, I exercise my discretion and award costs to the Father in the amount of $9,000.00, inclusive of taxes and disbursements, payable within 90 days of this decision.
M. Smith J
Released: September 27, 2021
COURT FILE NO.: FC-15-1468 DATE: 2020-09-27
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Rehab Alsalem Applicant
-and-
Khalid Fahad Aba-Alkhail Munirah Othman Aba-Alkhail Respondents
COSTS DECISION
M. Smith J
Released: September 27, 2021