Court File and Parties
COURT FILE NO.: FC-21-801 DATE: 2022/06/24
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Sherzad Abdulaziz, Applicant AND Razane El Zahabi, Respondent
BEFORE: Mackinnon J.
COUNSEL: Yanik Guilbault, for the Applicant Enoch Anekwe, for the Respondent
HEARD: In Writing
COSTS ENDORSEMENT
[1] The parties have been unable to settle the issue of costs related to a motion heard on April 5, 2022. The applicant was the successful party and asks for partial recovery costs fixed in the amount of $11, 077.74 inclusive of fees and HST, plus costs thrown away on February 22, and costs incurred with his previous lawyer. All told, the total claimed is $15,552.88. The respondent’s position is that costs should be left in the cause.
[2] The applicant was not fully successful in relation to the position he took on the motion. He did not obtain shared decision making. Important conditions were imposed upon the parenting time awarded to him, including supervised exchanges, random urine screens, and completion of anger management and alcohol management programs. The sale of the Grey Seal home was ordered but one half of the net proceeds of sale were required to be held in trust pending final determination of the property issues.
[3] The applicant delivered a timely offer to settle the motion. His offer for parenting time matched the time awarded. It included some but not all of the significant conditions ordered. He proposed to defer the issue of decision making to trial which was essentially the outcome of the motion on that issue. His offer required the respondent to vacate the home, which was his primary position in relation to the home, whereas the order made was for his alternative relief, namely that the house would be sold. The applicant’s offer was reasonable and represented a legitimate effort to resolve the issues raised by the motion. Its terms confirm that he was the successful party on the motion but not fully successful in relation to the terms of his offer to settle or the relief he requested in his motion.
[4] The respondent delivered an offer to settle dated April 4. Her offer primarily proposed terms for a final settlement, and to that extent is not relevant to costs of the motion. In relation to the motion her offer required the applicant to withdraw his motion. Quite clearly, she did not accomplish that outcome, because the motion was not dismissed. She advanced the same position in court, namely that the father’s parenting time should continue to be fully supervised and that his motion with respect to the house should be dismissed.
[5] The respondent relies on the fact that in her Answer she sought an order for the sale of the home. She claims that this is an indicia of some success on the motion. I disagree. She opposed the sale of the home at the motion despite the position articulated in her pleading. She also claims success because she had offered to move out of the home by July 1, 2022. This submission ignores the fact that her offer to vacate was tied to the applicant providing his consent on a final basis to her relocation of the children to Montreal, a request that was not even an issue in the motion.
[6] I will not address the respondent’s submissions that attempt to re-argue some of the factual issues raised in the motion, other than to note the impropriety of including references to unproven events occurring after the hearing. And the applicant’s former counsel has taken full responsibility for inadvertence in not forwarding the applicant’s intake form to the OCL on time. The $5,000 reduction made to the amount billed to the applicant by former counsel satisfies me that no fees related to the inadvertence are included in the amount of costs claimed.
[7] The respondent makes two submissions in support of her position that costs should be deferred in the cause. The first is that “should the mother succeed with the pending issues at disposition she would be the more successful party.” I agree that if the mother succeeds at trial, she will probably be awarded costs against the applicant for the trial and other costs related to the case that were not occasioned by her unsuccessful opposition to this motion. That outcome would not entitle her to costs of this motion but could enable her to set off one award against the other. Having regard to the income disparity between the parties and the release of half of the proceeds of sale of the house to the applicant, with the other half to remain in trust pending conclusion of the case, it is appropriate to fix the costs now and to defer payment until final determination.
[8] This disposition also addresses her second submission based on financial hardship.
[9] The motion was initially scheduled to be heard on February 22 for two hours. It was adjourned at the request of the respondent made that morning. Four responding affidavits had been late served but not filed. The respondent also wanted the adjournment so that she could deliver her own motion and amend her pleadings. I allowed the adjournment on terms and awarded the applicant three hours of preparation time thrown away, the amount to be determined together with the costs of the motion. Those costs are now fixed on a full recovery basis at $1,350.
[10] The additional time spent in relation to the motion is 12.95 hours by present senior counsel and 22. 45 hours by his junior associate for a total of 35.4 hours. Work already done by prior counsel for preparing the original motion materials was billed at $4,497.75, amounting to about 18 hours at the rate of the main lawyer who worked on the file. The total hours claimed by the applicant are therefore 53.4, in comparison to 31.5 hours by respondent’s counsel.
[11] The expenditure of 53.4 hours on a motion of this nature and duration does exceed the time that would be reasonably within the contemplation of the unsuccessful party. A more reasonable expenditure of time for inclusion in a party and party bill would be 15 hours to the prior firm, 12.95 to senior counsel and 15 hours to his associate. Added to that are the costs thrown away fixed at $1,350. I calculate these fees plus HST at $15,118.27. Having regard to the partial success of the applicant his costs are fixed at $10,000 payable by the respondent, with payment, plus interest at the statutory rate deferred until final determination of the case.
Date: June 23, 2022
COURT FILE NO.: FC-21-801 DATE: 2022/06/24
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Sherzad Abdulaziz, Applicant AND Razane El Zahabi, Respondent
BEFORE: Mackinnon J.
COUNSEL: Yanik Guilbault, for the Applicant Enoch Anekwe, for the Respondent
COSTS ENDORSEMENT
Mackinnon J.
Released: June 24, 2022