Court File and Parties
COURT FILE NO.: FC-21-658 DATE: 2021/12/14
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Saddo Souleiman, Applicant AND Cabdillahi Yuusuf, Respondent
BEFORE: Mackinnon J. COUNSEL: Michele Blais, for the Applicant Michael Rappaport, for the Respondent HEARD: In Writing
COSTS ENDORSEMENT
[1] There were three key issues in the motion and cross-motion giving rise to this cost determination. The applicant sought exclusive possession of the family residence, parenting time, and if successful on the first point, an order for child support commencing when the respondent vacated their home. The respondent also sought an order addressing parenting time and added the request for an order that the home be listed for sale.
[2] In the result both the claim for exclusive possession and for the sale of the home were dismissed. The applicant was the more successful party on the parenting issues. She asks for costs fixed in the amount of $7,500.
[3] The respondent submits that the applicant should be deprived of costs, alleging that she acted in bad faith in relation to the motion. He relies on FLRs r24 (4) to claim $7,203.75 costs for himself. That subrule provides that a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. He also asks the court to impose a $1,000 fine on the applicant for breaching FLRs r 18 (8) by attaching an offer to settle as an exhibit to her affidavit. This was ordered removed at the outset of the hearing.
[4] In support of his position the respondent accuses the applicant of falsely portraying herself as a victim of partner abuse to the case conference judge to secure an urgent motion date. He submits that the claim for exclusive possession was untenable at law and should not have been brought. He says that the applicant lied in her affidavit when she said that, unlike the respondent who could move in with a relative, she did not have alternate accommodation available to her. He claims that while he did not win the motion for sale of the house, he was successful on it shortly afterwards because in December the parties agreed to list the house. Whereas the respondent did not make an offer to settle either motion, he criticizes the offers the applicant did make on the proposed distribution of the equity in their house as being untenable at law.
[5] I begin by explaining my reasons for dismissing the respondent’s claim for costs.
[6] The costs of the case conference and the urgency determination are not before me.
[7] The claim for exclusive possession of the family home was dismissed. In short form the relief was not available to the applicant because the parties were not legally married and were joint owners of the home. Had the respondent not opposed that motion by his own unsuccessful motion for sale, he would have been in a position to seek costs on the dismissal of her motion. As it is the two dismissed motions offset each other on the issue of costs.
[8] Being wrong at law is not a stand alone basis for an award of costs to the opposing party. I note that the respondent did not make submissions or provide case law against the legal merits of the motion for exclusive possession, rather focused his opposition entirely on the merits of his own motion for sale.
[9] I do not agree that the applicant lied in her affidavit to the court on the availability of alternate accommodation. Read in context she was not claiming that there was no rental accommodation available if she had to move out of the family home, rather that unlike the respondent who was planning on moving in with his sister in her large family home, the applicant had no family she could impose on. Affordability of alternate accommodation was dependent on access to the sale proceeds of the house if it came to that.
[10] The respondent relies heavily on events that took place after the motions were determined. I cannot rely on subsequent events in my assessment of costs of the motions I heard. The facts in relation to subsequent events are not proven. They may be determined at trial and may be relevant to the final determination of the substantive issues and costs of the case, but they are not relevant to the determination of the costs of motions already heard and decided.
[11] The fact is that the respondent lost his motion for an order for the sale of the family home prior to trial. That the parties subsequently agreed to sell the home does not change that fact.
[12] Nor can I consider in relation to the costs of the motions the respondent’s claim that the applicant’s offer on the proposed distribution of the sale proceeds is untenable at law. The merits of that issue were not before the court for determination on either motion. What is significant is that the respondent did not make any offer to settle either motion.
[13] I found no facts in my determination of the motions that would support a claim that the applicant acted unreasonably or in bad faith so as to deprive her of costs or entitle the respondent to costs despite his lack of success.
[14] I agree that it was an error to attach an offer to settle to the applicant’s affidavit. I did not read the offer and ordered it to be removed from the record before the oral argument commenced. I do not agree that a financial consequence is required in these circumstances and decline to impose a fine upon the applicant for what was likely a misstep by counsel.
[15] I turn now to the applicant’s claim for some costs as the more successful party on the parenting issues. I agree that she is entitled to some costs, but not in the amount asked for.
[16] The applicant’s Bill of Costs sets out her substantial indemnity fees as 90 % of her solicitor client fees, and her partial indemnity fees at 60 %. Respectively, these amounts are, in rounded numbers, $14,500 and $ 9,665. It therefore appears that she is seeking an award of about 77.5% of her partial indemnity fees. In my view that proportion does not reflect the fact that while she successfully opposed the motion for sale, the respondent successfully opposed her motion for exclusive possession. Those were related claims, both unsuccessfully brought and both occupying reasonably comparable expenditures of time in preparation and in oral argument.
[17] Where the applicant had more success was on the parenting issues alone. Neither party attempted a detailed breakdown of time spent in relation to individual issues. It seems fair to equally allocate the fees amongst the three issues. On that basis the applicant’s partial indemnity fees on the parenting issues would be set at $3,221.66.
[18] That amount is somewhat high when one considers the 14 hours of time charged by the applicant’s counsel for preparation and attendance at the oral hearing. Factoring in a reduction in this regard, I award the applicant costs of $3,050 which includes fees, disbursements and HST.
Date: December 14, 2021
COURT FILE NO.: FC-21-658 DATE: 2021/12/14
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Saddo Souleiman, Applicant AND Cabdillahi Yuusuf, Respondent
BEFORE: Mackinnon J. COUNSEL: Michele Blais, for the Applicant Michael Rappaport, for the Respondent
costs ENDORSEMENT
Mackinnon J.
Released: December 14, 2021