ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-18-0263
DATE: 20211015
BETWEEN:
Doaa Aly
Adeleke O. Oyegunle, for the Applicant
Applicant
- and -
Hesham S.A. Khalil
Harpreet K. Sidhu, for the Respondent
Respondent
HEARD: September 15, 2021
REASONS FOR DECISION
LEMAY J
[1] The parties settled their divorce action in 2019 by way of minutes of settlement. These minutes of settlement were incorporated into an order of Ricchetti J. (as he then was) dated October 24th, 2019. Pursuant to that Order, the Applicant had the responsibility for taking out the divorce order and was also responsible for the associated costs.
[2] The divorce order was not taken out until after an in-person appearance before me on July 30th, 2021. For reasons that I will come to, the Applicant and her counsel did not appear on that date through no fault of their own. After the appearance on July 30th, 2021, I provided directions to ensure that the divorce was issued and entered.
[3] At the appearance on July 30th, 2021, counsel for the Respondent asked that I order costs against the Applicant’s counsel personally. As a result of this request, I determined that it was necessary to provide the parties with an opportunity to provide both written submissions and oral argument on these issues. The oral argument was scheduled for September 8th, 2021, after the written submissions had been provided.
[4] At the oral hearing, counsel for the Respondent indicated that the key argument was that there had been disorganization on the part of the Applicant and/or counsel and that someone should pay the Respondent’s costs. As a result, the Respondent sought costs in the total sum of $3,579.25 inclusive of HST and disbursements. The Applicant argued that costs should be limited to $565.00 in total.
[5] For the reasons that follow, I have fixed costs in this matter in the total sum of $2,750.00 inclusive of HST and disbursements. Those costs are to be paid by the Applicant to the Respondent within thirty (30) days of today’s date and the Applicant’s approval as to form and content of the Order flowing from these reasons is dispensed with.
Background Facts
a) The Parties and the Settlement
[6] The parties were married in 1995. There were two children of the marriage, twins born in 2005. The parties subsequently separated, and an action addressing all of the family law issues was commenced in 2018.
[7] The parties entered into minutes of settlement on October 1st, 2019. That settlement addressed all of the outstanding issues between the parties including child support, custody and access (as the concepts of decision making responsibility and parenting time were then known as), the division of property and the other ancillary issues including the divorce.
[8] The minutes of settlement were converted to an Order of Ricchetti J. That order required the parties to cooperate in obtaining a divorce. It also required the Respondent to serve and file a Notice of Withdrawal for all of his claims and that the cost of the divorce would be borne by the Applicant.
b) The Events Since the Settlement
[9] The Respondent served and filed a notice of withdrawal. However, instead of moving for a divorce in the original file, the Applicant commenced a new application seeking a divorce only. The Respondent did not respond to this application so that the Applicant could obtain the divorce. This new application was commenced in late 2019.
[10] The Applicant did not move this divorce forward for some time. Eventually, the Applicant secured an order for a divorce dated October 8th, 2020 from Andre J. That order was prepared by the Applicant’s counsel, and was deficient in the following ways:
a) The divorce Order did not include the Respondent’s proper name, and did not include the Respondent as one of the parties who was being divorced.
b) The divorce Order did not properly list the location where the Applicant and the Respondent were married.
[11] On receipt of this divorce Order, the Respondent attempted to obtain a Certificate of Divorce. However, his request was rejected because of the deficiencies spelled out in the previous paragraph.
[12] The Respondent advised the Applicant of the deficiencies in the Order of Andre J. on a number of occasions. After some prodding, on November 18th, 2020, the Applicant filed a 14B motion to correct the deficiencies in the divorce order. Respondent’s counsel advised Applicant’s counsel that the new materials being filed were deficient, and encouraged Applicant’s counsel to correct the deficiencies. The Applicant did not correct any of the deficiencies before the motion was heard in writing.
[13] Fowler Byrne J. dismissed the Applicant’s motion on February 10th, 2021, noting that “the affidavit material filed in support of this motion is severely deficient.” The deficiencies noted by Fowler Byrne J. were as follows:
a) There was no evidence of the full names of the parties as set out in the Application.
b) There was no copy of the marriage certificate included with the motion.
c) There was no copy of the Order of Andre J.
d) The exhibits were either not included or the exhibit named in the Affidavit was not reflective of a document attached.
[14] In his submissions to me, counsel for the Applicant noted that “[t]he endorsement was contradictory as it claims there were not enough documentation, but also indicated that there were no Exhibits Attached to the Motion. There is evidence that all documents and exhibits were filed…” I do not view the endorsement of Fowler Byrne J. as being contradictory. Further, given Fowler Byrne J.’s listing of the deficiencies, I am not prepared to accept counsel’s submission that all of the materials were filed and that his filing was not deficient.
[15] Counsel for the Respondent wrote to counsel for the Applicant in March of 2021, advising that the materials needed to be reviewed before they were submitted and advising that, if the Respondent had to obtain the divorce, the Respondent would be seeking his costs. Applicant’s counsel responded to this letter and, on March 18th, 2021, Applicant’s counsel attempted to file a second 14B motion.
[16] The Applicant’s counsel did not successfully file this second 14B motion. Instead, the Applicant’s counsel advised that his material was rejected for a number of reasons. The last rejection was at the end of April, 2020 and the Court Office noted that 14B motions were to be brought either without notice or on consent.
[17] Counsel for the Applicant advised the Applicant of this fact and asked for consent from the Respondent. Given that the Respondent had not responded to the new divorce application, it is not clear why the Respondent’s consent was required. It seems to me that the better approach would have been to proceed on an ex parte basis, especially since the parties had settled the issue and that Fowler Byrne J. had given leave for the ex parte motion to be re-filed with proper and complete materials.
[18] In any event, the Respondent became frustrated with the Applicant’s approach to this matter and brought a contempt motion. The Respondent had secured a date of July 30th, 2021 for the hearing of the contempt motion. The Applicant then chose to attempt to bring a cross-motion asking for the contempt motion to be dismissed. In the alternative, the Applicant’s cross-motion asked for relief to address the deficiencies in the divorce order.
[19] A hearing was scheduled for July 30th, 2020. Respondent’s counsel took all proper steps to list the matter for hearing. However, the hearing was struck off the list. I was asked by the Trial Office to hear the matter even though it was not technically on the list.
[20] I duly heard the matter. Although counsel for the Applicant did not attend the hearing, I determined that this matter needed to be resolved. As a result, I issued a series of Orders that resulted in:
a) The setting aside of the October 8th, 2020 divorce Order and the dismissing of the new divorce application.
b) The granting of a divorce Order in the original court file, effective on August 29th, 2021.
c) The expediting of the issuing of a Certificate of Divorce by the Court staff.
d) Setting up the arrangements for this hearing.
[21] I received written submissions for this hearing in accordance with my directions. I also heard brief oral submissions from counsel, although both counsel chose to rely primarily on their written arguments.
Issues
[22] From the facts and positions of the parties, two issues arise:
a) What quantum of costs should be paid by the Applicant to the Respondent?
b) Who should pay those costs?
[23] I will deal with each issue in turn.
Issue #1 – The Quantum of Costs
[24] There is no dispute between the parties that the Applicant should pay at least some of the Respondent’s costs. The question is how much of those costs should be paid. This question engages the principles under Rule 24 of the Family Law Rules.
[25] The Court is obliged to consider the factors listed in Rule 24. The most relevant of those factors in this case are:
a) The importance, complexity or difficulty of the issues;
b) The reasonableness or unreasonableness of each party’s behavior in the case; and
c) The lawyer’s rates and the time spent on the matter.
[26] I start with the complexity and importance of the issues. The divorce was clearly important to both sides. As counsel for the Respondent notes, obtaining the divorce order will allow the parties to get on with their lives.
[27] This brings me to the complexity of the issues. Obtaining an uncontested divorce in this case should have been a simple and straightforward matter. All that was required was the marriage certificate, the clearance certificate (obtained by the Court office) and an Affidavit for Divorce from the Applicant. All the Affidavit for Divorce would have required was the information set out in the standard form along with a copy of the minutes of settlement. On that basis, a divorce would have been granted.
[28] Instead, counsel for the Applicant commenced a new application and filed paperwork that was woefully deficient. I have no good explanation from the Applicant for either of these decisions.
[29] The new application complicated matters in two respects. First, it made it more difficult to obtain a divorce as there were two applications outstanding. Second, it made it more difficult for the Respondent to obtain a divorce Order because the new application was outstanding, had been commenced by the Applicant and had not been responded to by the Respondent.
[30] These issues were compounded by the errors that were made in the original Order that was submitted to the Court Office. Although the Court always attempts to check the Orders against the materials that are filed, those errors are the responsibility of the counsel or party who submitted the order. In this case, those errors are the responsibility of the Applicant’s counsel.
[31] This brings me to the reasonableness or unreasonableness of each party’s behavior. The Applicant’s behavior in this case resulted in additional costs being expended and a delay in obtaining the divorce. Even after the endorsement of Fowler Byrne J. was received in February of 2021, the Applicant was moving in a dilatory way in resolving this matter.
[32] The Applicant argues that a contempt motion was not necessary in this case. While there is some merit to this observation, the Respondent’s motion was necessary in at least some form. I agree that contempt would not be found on the facts of this case, and counsel for the Respondent did not seriously argue otherwise. However, the matter needed to be placed before a judge and, given the dilatory and careless way that the Applicant had been approaching the materials for the divorce, a contested motion at an in-person hearing was a reasonably necessary step.
[33] This brings me to the result of the motion. Counsel for the Applicant argues that success was divided because the Respondent did not obtain a contempt order. I disagree. The Respondent had two goals in bringing his motion. First, to have the divorce granted. Second, to have the Applicant carry out her obligations to obtain the divorce under the minutes of settlement.
[34] The Respondent was successful in obtaining the divorce. This is a significant success on this motion. The Respondent was not successful in having the Applicant carry out her obligations under the minutes of settlement. However, that was not because the Applicant had done what she was supposed to do. Instead, I reviewed the file and made a decision that a series of orders needed to be made in order to bring this matter to an end.
[35] In my view, the Applicant is entitled to a modest discount in the amount of costs claimed by the Respondent. However, it is a very modest discount, as the motion was necessary and I am not at all persuaded that this matter would have been resolved without the Respondent’s proactive decision to bring a motion and schedule an in-person hearing. Since the Applicant was responsible for most of the problems, she should pay most of the costs.
[36] The fact that the Applicant brought a cross-motion seeking some of the same relief that was ultimately granted by the Court is also of no assistance to her. This belated attempt to bring a cross-motion to rectify the previous errors did not significantly reduce the Respondent’s costs, as he had already had his motion materials prepared and had been put to the trouble of preparing for Court.
[37] This brings me to the actual quantum of costs. Counsel for the Respondent has submitted a bill of costs that does not contain much in the way of detail. It simply sets out enough information for me to deduce that the Respondent’s counsel has spent 11 hours on this matter. It does not tell me how this time is broken down.
[38] However, the amount of time that has been spent by the Respondent’s counsel on this matter appears to be entirely reasonable. In this regard, I note the Applicant’s assertion that he spent twenty-five hours of unbilled time on this matter supports the view that the time spent by the Respondent’s counsel is reasonable. In addition, her rate of $250.00 per hour for a lawyer that was called to the bar in 2013 also appears to be entirely reasonable.
[39] This brings me to the Applicant’s position that the costs should be limited to $565.00, which is half of the costs that the Applicant’s counsel has received from his client. There are two problems with this submission. First, the fact that the Applicant may have been on a legal aid rate or may have done work on a pro bono basis does not disentitle the Respondent from being awarded costs. Second, the fact that the Applicant did not charge for any of the work that was done after the agreement was reached does not mean that the Respondent has not been put to the expense of retaining counsel and having work performed.
[40] In counsel for the Applicant’s argument, there is also the suggestion that the Applicant is impecunious. However, it is only a suggestion and insufficient evidence has been provided for me to make a finding of impecuniosity. In any event, even if impecuniosity was established, it would not necessarily be grounds for reducing or eliminating a costs award. See, for example, Balasundaram v. Alex Irvine Motors Ltd. 2012 ONSC 5840 and Agius v. Home Depot Holdings Inc. 2011 ONSC 5272.
[41] In this case, the Applicant filed deficient materials, made the matter more complicated to resolve by commencing a second proceeding, and was dilatory in bringing the issue of a divorce to a resolution. It would be reasonable to expect that the Respondent would have incurred costs as a result of all of these factors, and the amount that the Respondent has claimed is not unreasonable.
[42] As I said, however, there should be a modest deduction for the fact that the Respondent sought contempt-related relief that was not seriously pursued. In the circumstances, therefore, I find that costs in the sum of $2,750.00 all-inclusive should be paid to the Respondent.
Issue #2 – Who Should Pay the Costs?
[43] Counsel for the Respondent has set out a series of cases outlining the principles to be followed in determining whether costs should be payable by a solicitor personally.
[44] In Young v. Young [1993] 4 S.C.R. 3 1993 34, the Supreme Court stated:
The basic principle on which costs are awarded is as compensation for the successful party, not in order to punish a barrister. Any member of the legal profession might be subject to a compensatory order for costs if it is shown that repetitive and irrelevant material, and excessive motions and applications, characterized the proceedings in which they were involved, and that the lawyer acted in bad faith in encouraging this abuse and delay. It is clear that the courts possess jurisdiction to make such an award, often under statute and, in any event, as part of their inherent jurisdiction to control abuse of process and contempt of court.... [C]ourts must be extremely cautious in awarding costs personally against a lawyer, given the duties upon a lawyer to guard confidentiality of instructions and to bring forward with courage even unpopular causes. A lawyer should not be placed in a situation where his or her fear of an adverse order of costs may conflict with these fundamental duties of his or her calling. [Emphasis in original.]
[45] In Galganov v. Russell (Township) 2012 ONCA 410, the Court of Appeal adopted this two-part test. The first step is to determine whether the conduct of the lawyer falls within the type of conduct that would attract an award of costs personally against the lawyer. The second step is to consider whether the Court’s discretion to order costs against the lawyer personally should be exercised. This discretion must be considered in light of the “extreme caution” principle articulated in Young.
[46] Galganov was a decision under Rule 57.07(1) of the Rules of Civil Procedure. However, Rule 24(9) of the Family Law Rules is sufficiently similar to Rule 57.07 that the principles are adopted by necessary implication. On this point, see F.(V.) v. F.(J.) 2016 ONCJ 759 (2016) 86 R.F.L. (7th) 452.
[47] Galganov also notes that the costs rule is only to be applied when a lawyer is clearly derelict in his duties as an officer of the Court or is pursuing an unattainable goal. Further in determining whether the Rule applies, the Court must take a holistic and contextual approach to the entirety of the solicitor’s behaviour. See also Rand Estate v. Lenton 2009 ONCA 251 at para. 5.
[48] This case is a close call. However, I am not persuaded that costs should be awarded against the Applicant’s solicitor personally, for two reasons. First, the Applicant was not engaged in attempting to achieve an unattainable goal. Instead, he was attempting to obtain a goal that should have been easily attainable. Second, as noted in Young, awards of costs against solicitors personally are to be granted only in rare circumstances. This is not one of those rare circumstances.
[49] I appreciate that the Respondent incurred unnecessary costs in this case as a result of the Applicant’s counsel’s conduct. However, that only assists the Respondent in meeting the first branch of the test. When I step back and conduct the holistic view of the case that is necessary, I conclude that I should not exercise my discretion for the reasons given in the previous paragraph.
[50] It is also worth remembering the facts of Galganov. In that case, the solicitor had clearly engaged in conduct that resulted in unnecessary costs being incurred. It was more significant conduct than in this case, and included things such as needlessly insisting on the attendance of a witness at a proceeding. Even on those facts, the Court of Appeal did not find that an award against counsel personally was justified. This case is not so far along the spectrum of conduct as Galganov.
[51] As a result, I conclude that the Applicant is responsible for paying the costs that I have ordered to the Respondent.
[52] As a final matter on this issue, I would note that nothing in these reasons prevents the Applicant from attempting to recover the costs that I am requiring her to pay from her counsel. Further, nothing in my finding that Applicant’s counsel should not be required to pay the costs personally to the Respondent should be taken as an endorsement of anything the Applicant’s counsel has done in this case since the settlement was entered into.
Conclusion
[53] For the reasons I have set out above, I have concluded that the Applicant should pay the Respondent costs in the sum of $2,750.00 inclusive of HST and disbursements.
[54] The Applicant and her counsel have made what should have been a simple divorce into a complicated matter. As a result, I am concerned that permitting the Applicant and her counsel to have a say over the form and content of the Order flowing from my reasons would result in additional delay and the expenditure of additional time by both the Court and by Respondent’s counsel. As a result, the Applicant’s approval as to form and content of the Order is dispensed with.
[55] The order that is to be issued is as follows:
a) The Applicant shall pay costs to the Respondent in the sum of $2,750.00 inclusive of HST and disbursements.
b) The costs described in paragraph (a) shall be paid within thirty (30) days of today’s date.
c) The Applicant’s approval as to form and content of this Order is dispensed with.
LEMAY J
Released: October 15, 2021
COURT FILE NO.: FS-18-0263
DATE: 20211015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Doaa Aly
Applicant
- and -
Hesham S.A. Khalil
Respondent
REASONS FOR DECISION
LEMAY J
Released: October 15, 2021