Court File and Parties

Newmarket Court File No.: FC-19-58798-00 Date: 2024-10-29 Ontario Superior Court of Justice

Between: Randa Issa (Applicant Mother) – and – Ramzy Haidar (Respondent Father)

Counsel: Sarah M. Boulby, for the Applicant Wife Ramzy Haidar, on his own behalf

Heard: In Writing

Reasons for Judgment Regarding Costs

Justice Alex Finlayson

PART I: OVERVIEW

[1] The Court heard a trial and a summary judgment motion over the course of four days during the spring 2024 trial sittings. The Court released its Judgment on August 20, 2024: see Issa v. Haidar, 2024 ONSC 4629.

[2] At ¶ 315 (r)-(t) of that Judgment, I invited costs submissions in writing. I indicated that I was open to considering further submissions about the father paying certain lump sums ordered, over time.

[3] The mother filed her written submissions according to the timeline set out in the Judgment. The mother seeks costs, including fees, disbursements, and HST, of $331,780.36, on a "full indemnity basis". Alternatively, she seeks $221,788.37 on a "partial indemnity" basis. Her submissions deal only with costs. She is not proposing a payment schedule for the father to pay the lump sums.

[4] The father did not file any written submissions regarding costs, or the payment schedule. Consequently I do not know his position on either, nor what he himself incurred in costs, whether during past periods when he was represented, or on a self-represented basis. If the father is opposing the mother's costs claim, he did not comply with rule 24(12.2) of the Family Law Rules.

[5] Prior to preparing this supplementary Judgment regarding costs (but after the father's deadline to serve and file had come and gone), I had the judicial assistant contact both the father and the mother's counsel by email, to inquire about there whereabouts of the father's submissions. Ms. Boulby, for the mother, responded and advised the judicial assistant that she had not been served with responding submissions from the father. The father did not respond to the email.

[6] It was up to the father to seek a payment schedule if he wanted the Court to entertain this. As he did not file any submissions at all, I will address only costs in this supplementary Judgment based on the Court's August 20, 2024 Judgment, the mother's written submissions, and the applicable legal principles. No further Orders will be made about the payment schedule.

PART II: ANALYSIS

A. Offers to Settle

[7] Both parties made Offers to Settle. Neither achieved an outcome that was more favourable than the terms of his or her Offers to Settle. I find that the consequences in Rule 18(14) do not apply respecting either party's Offers to Settle.

(1) The Mother's Offers to Settle

[8] The mother filed three Offers to Settle that she made, dated August 26, 2022, November 14, 2022, and May 7, 2024. The first Offer of August 26, 2022 dealt with both the parenting and financial issues, but it was not severable. The second Offer of November 14, 2022 dealt with both the parenting and financial issues too, but this one was severable. The parenting issues settled on a no costs basis before the start of this trial, but the mother then incurred costs in connection with the summary judgment motion that she had to bring, to enforce the settlement.

[9] The mother does not argue that the consequences in rule 18(14) of the Family Law Rules apply to her first two Offers to Settle. She does submit that she exceeded her May 7, 2024 Offer.

[10] I agree that by comparing what she offered, to the combined effect of the consent Order of MacPherson J. achieved on June 3, 2024 and the result at trial, the mother did achieve an outcome that was more favourable than this Offer, respecting the equalization payment, prejudgment interest, the amount of the lump sum for retroactive support, prospective child and spousal support, prospective section 7 expenses (other than post-secondary expenses), and ancillary terms, such as disclosure and variation in the event of a material change in circumstances.

[11] However there is also a term in this May 7, 2024 Offer respecting future university expenses. The consent Order of MacPherson J. dated June 3, 2024 does not deal with this, nor did my Judgment following the trial. The sharing of post-secondary expenses will have to be dealt with in due course, when and if it arises. Whether the father will pay 75% of those expenses with a cap as offered, or some other amount, will depend on the relevant circumstances in the future, including whether the father is then still paying spousal support. If he is, that may impact any apportionment.

[12] While the Court may properly consider an Offer to Settle that is 'close' under rule 18(16), close is not good enough to engage the consequences in rule 18(14). Consequently I cannot accede to the mother's submission, that she beat her May 7, 2024 Offer, for the purposes of rule 18(14).

[13] Regardless, this Offer of May 7, 2024 only provided for full recovery costs only after May 14, 2024. Most of the work done came before that. I will nevertheless return to this Offer below, when dealing with costs under Rule 24.

(2) The Father's Offers to Settle

[14] In her written submissions, the mother says that the father made a prior Offer to Settle after he was ordered to do so by the case management judge in 2023, but that Offer did not address support or equalization. The father then made a further Offer, also on May 7, 2024.

[15] The mother supplied the Court with a copy of the May 7, 2024 Offer, with her submissions. Little needs to be said about this Offer. It is obvious that the consequences in Rule 18(14) do not apply to this Offer. I find that the father did not achieve a result more favourable than the terms of the May 7, 2024 Offer.

(3) Conclusions Respecting the Offers to Settle and Whether the Mother is Entitled to Full Recovery

[16] As set out above, the mother's principal claim is for costs on a "full indemnity" basis, and "partial indemnity" in the alternative. Although these are not terms used in the Family Law Rules, I will treat the mother's primary claim for costs as a claim for "full recovery".

[17] In view of the findings above about her Offers, she is not entitled to full recovery after the date of her May 7, 2024 Offer, under rule 18(14).

[18] There is no other rule based ground in Rule 24 the Family Law Rules, for the Court to order full recovery. For instance, a finding of bad faith under rule 24(8) has not been sought or made.

B. Success and Entitlement

[19] Rule 24(1) of the Family Law Rules nevertheless contains a presumption that a successful party is entitled to costs. There is no question that the mother was the successful party by comparing the positions taken to the result obtained. As such, the mother is presumptively entitled to costs, quite apart from the inapplicability of rule 18(14).

[20] In particular, the Court ordered the father to pay to the mother an equalization payment of $86,932.32 less two agreed upon credits, netting the amount owing down to $72,899.05. This result was consistent with the mother's position at trial. The Court ordered prejudgment interest of $9,226.73, also claimed by the mother.

[21] In calculating the equalization payment, the Court rejected the father's position (and adopted the mother's) respecting funds that the paternal grandfather had advanced to the father during the marriage, to fund his MBA degree. The Court did not allow the father to deduct as a debt on the valuation date this advance. The Court also disallowed a deduction for costs of disposition on the father's Swiss pension, as the father failed to call the necessary evidence to prove that deduction.

[22] In regard to the support issues, the mother sought a global amount as a lump sum, for retroactive child support, special or extraordinary expenses pursuant to section 7 of the Federal Child Support Guidelines, and spousal support, net of the father's prior payments. The amount she claimed was a little over $400,000.00.

[23] Although the Court did not order an amount that high, the result was close. After crediting the father for his prior payments, the Court ordered as a lump sum, retroactive section 7 expenses of $45,838.50, and retroactive spousal support of $261,590.00. The Court ordered an additional amount of spousal support of $58,400.00 for the first 8 months of 2024 (although not as a net of tax lump sum because the parties have not yet filed their 2024 taxes). The Court also ordered spousal support of $10,000.00 per month, commencing September 1, 2024. The amount ordered for the first 8 months of 2024 was equally based on the sum of $10,000.00, less credits for amounts the father paid during the first part of the year, pending the release of the Judgment.

[24] Notably, the sum of $10,000.00 per month for ongoing spousal support beginning in 2024, was less than the mother's trial position, that spousal support should be $12,007.00 per month. But once again, the amount the Court ordered was close to her trial position.

[25] The Court did not in the Judgment deal with prospective child support or section 7 expenses, not because the mother was not entitled to these amounts or because the mother was not successful, but because it did not have to. Those issues settled on the cusp of the start of the trial, in the consent Order of MacPherson J. dated June 3, 2024. But costs of those issues were not dealt with in the settlement.

[26] Finally, I granted the mother's summary judgment motion, for which the mother was entirely successful. I made a final Order based on Minutes of Settlement dated August 22, 2023 respecting parenting, that the father had signed, but from which he then tried to resile. In so doing, I rejected various arguments that the father made, about why a particular clause in those Minutes should not be enforced. I declined to sever the term, or to grant a remedy, like rectification. Although, as I have already said, the Minutes settled the parenting portion of the proceeding on a no costs basis, the mother incurred costs subsequent to the settlement, to bring the summary judgment motion to obtain the final Order, after the father tried to resile.

[27] In regard to the father, he achieved some success in persuading the Court that it should take into account his financial circumstances when determining the quantum of spousal support. The Court did not find the mother's support calculations to be entirely accurate in view of certain tax issues. However, this success has to be placed in its proper context. It is far more modest relative to the mother's numerous successes. I do not this aspect of the father's success to be of such a degree, that there should be some apportionment under rule 24(6).

[28] Moreover, some additional context relating to this issue, is that the father did not succeed respecting his pursuit of a "cost of living adjustment". The father's pursuit of that issue increased both the cost and the complexity of the trial. It created both legal and evidentiary issues that had to be dealt with.

[29] The father was otherwise unsuccessful on a wholesale basis respecting the other issues for which the mother enjoyed success. And, he did not succeed with his request of the Court that it impute an income to the mother. Nor did his position, or his alternative position about the amount of spousal support, that he should be ordered to pay, come anywhere close to the result.

C. The Mother's Behaviour

[30] The mother behaved reasonably. There would be no basis for the Court to find that the mother, as the successful party, behaved in any fashion so that she should be deprived of all or part of her costs under rules 24(4) and (5) of the Family Law Rules.

D. Quantum

[31] Having found the mother is entitled to costs, rule 24(12) of the Family Law Rules enumerates a number of factors for the Court to consider, when setting the amount of costs.

[32] The mother's counsel's Bill of Costs helpfully breaks out her costs claim into nine parts. Approximately 2/3 of the costs claim is contained in Part I of the Bill. In a brief overview statement, Part I of the Bill says it includes work in connection with the "preparation and service of pleadings, motion materials, conference briefs and trial documents." These costs span back to 2019, when this case began.

[33] However despite that overview summary or statement, there is then a further description under this particular description of Part I, that contains more detail about what the work captured by Part I includes. For example, the additional detail says there are charges for written communications, communications with experts and witnesses, the preparation of various court documents and calculations, and the preparation of trial materials, such as exhibit books.

[34] And despite these further descriptions, in the body of the written submissions themselves, the mother says she has not included costs relating to the parenting issues, other than respecting the subsequent dispute over the Minutes of Settlement that she can properly claim, in view of her success respecting the summary judgment motion; she also says that she has omitted costs already determined during the course of the proceeding, for example after interim motions. But there is still the reference in the detail/description, in Part I of the Bill of Costs, to the preparation of conference briefs and Trial Scheduling Endorsement Forms.

[35] Parts 2 through 8 of the Bill of Costs then separately itemize specific costs incurred in connection with the preparation for and attendance at various conferences, and at the appearance before MacPherson J. on May 31, 2024, that resulted in the consent Order of June 3, 2024. I would have thought that the preparation of conference briefs and Trial Scheduling Endorsement Forms would be contained in these parts, but there appears to be some inclusion for these in Part I too. I found this to be somewhat confusing.

[36] I acknowledge, and I am prepared to accept, that the mother did not claim costs in relation to past motions, given her specific statement to this effect in the written submissions. However the costs of other prior steps, like prior conferences, were not specifically carved out in the submissions, and so I am concerned that they form part of Part I, in addition to Parts 2 to 8 of the Bill. And costs of prior conferences are generally supposed to be dealt with at the time: see rule 24(10).

[37] Now on the one hand, there is no longer a prohibition against a trial court later ordering costs of such past events, even if they are not dealt with at the time: see rule 24(11). But that does not mean that the Court will automatically order such costs, even in a situation like the one now before me, where the father has not responded with written costs submissions of his own.

[38] Indeed, it is the mother who bears the onus to persuade the Court that it should order these past costs. The mother's submissions do not address why the Court should do so, with regard to the applicable legal principles: see for example Cameron v. Cameron, 2018 ONSC 6823 ¶ 83-88. In the absence of such submissions, I will not do so.

[39] Unfortunately, because of the confusion regarding what is, or is not in Part I, the adjustment to the mother's claim to account for my decision not to order costs of past conferences and events, is not as simple as just backing out the costs itemized in Parts 2 to 8 of the Bill of Costs. Again, based on the unclear descriptions about what is in Part I, it is not readily clear to me that there aren't charges for things like conference briefs buried in there too.

[40] The mother did include with her submissions and her Bill of Costs, many pages of dockets. But the Court is not required to parse through pages and pages of dockets, or to engage in a line by line analysis, to try to extract and omit the work done that I find should not be ordered. When fixing costs, courts do not engage in a mechanical exercise of calculating hours, times and rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay: see Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (Ont. C.A.) ¶ 24. Proportionality and reasonableness are the touchstone considerations: see Beaver v. Hill, 2018 ONCA 840 ¶ 12.

[41] It would have been helpful for the father to have responded, and to have addressed this. Had he filed responding material, he might have assisted the Court by engaging in that analysis. He could have brought any offending charges to the Court's attention.

[42] To achieve a just result, as the wife did separate out some charges for past conferences, and the May 31, 2024 attendance in Parts 2 through 8 of her Bill of Costs, I will back those out. And I will take a higher level approach to Part I. To the extent that there may be some charges included in Part I for which the mother had a prior opportunity to seek costs, this can be dealt with by a modest further reduction to the overall Bill.

[43] To be clear, I otherwise find the portions of Part I of the Bill that pertain to the correspondence, communications with experts and witnesses, the preparation of documentation in this lawsuit, and other work, for which the mother did not have a prior opportunity to claim costs, to be claimable by her.

[44] In regards to the other factors in rule 24(12), I find the issues were important to the parties and to the children. The issues in this case largely concerned the proper support of the mother, and the children.

[45] In regards to the hourly rates and time charged, Ms. Boulby is a senior and experienced family law lawyer. I find that the hourly rate that she charged the mother and the time she spent to be reasonable and proportionate in general, in relation to the importance and complexity of the issues.

[46] Notably, other lawyers and staff persons in Ms. Boulby's firm did work on this case where possible, charging lower hourly rates. This too was a reasonable approach. And this was not a situation, where there were multiple lawyers charging for attendance at trial; only Ms. Boulby attended and only Ms. Boulby billed for that.

[47] In regard to disbursements, the mother seeks $65,315.70. That is not an insignificant amount. But the great majority of this claim for disbursements pertained to her expert's fees, to determine the father's income. In the Judgment, I found that expert evidence was required to address the father's income and other tax issues; in fact I found that the Court could have benefitted from additional expert evidence, even though both sides had retained experts.

[48] Chartered business valuators are expensive. The hiring of experts was necessary in this case led. That even led to the narrowing of some issues, that got incorporated into the Statement of Agreed Facts, prior to trial. And that helped narrow and shorten the trial.

[49] Although in the Judgment, I did find some deficiencies respecting her presentation of the case, particularly regarding her calculations, overall the mother acted reasonably for the purposes of rule 24(12). She tried to settle her case about two years prior to the trial. She then made a fresh Offer to Settle on a no costs basis as the trial approached. While I already have found that rule 18(14) doesn't apply to the May 7, 2024 Offer in particular, I still have regard to rule 18(16). The other terms of the May 7, 2024 Offer were generous. The father should have accepted them, and if he didn't agree for example about the post-secondary clause, he could have countered and asked that it be removed, but he didn't. He instead served an Offer of May 7, 2024, that was far off the mark.

[50] Finally, there was some degree of complexity respecting the income issues in this case. And those income issues were rendered more complicated by some of the father's positions, such as his claim for a cost of living adjustment, the fact that he tendered an inaccurate cash flow chart, and the fact that his expert's cash flow calculations and attempt to 'iterate' to come up with an adjusted support calculation, included the cost of living adjustment.

[51] In summary in regard to quantum, I am mindful on the one hand, that this was a four-day trial. At first blush, the mother's cost claim may seem high. On the other hand, the mother had senior, experienced counsel, the litigation had been pending since 2019, the amounts in dispute were not insignificant, there was complexity to the income issues and the support calculations, and expert evidence was required.

[52] Therefore, I find the mother is entitled to a portion of her costs, but not full recovery as already expressed. I would reduce her claim for "partial indemnity" costs of $119,003.50 in Part I of the Bill to $100,000.00 on a global basis, to account for any duplication respecting the preparation of conference briefs and the like. I find that she is entitled to her "partial indemnity" claim for costs of $9,625.00, as explained in Part 9 of the Bill (i.e., for preparation and attendance at trial). The HST on these amounts is $14,251.25.

[53] I do not award costs claimed in Parts 2 through 8 of the Bill (i.e., for other prior conferences and attendances) for the reasons already expressed.

[54] I find the mother is entitled to her disbursements claimed of $65,315.70.

[55] I find these amounts being ordered for Parts I and Part 9 of the Bill of Costs, and for disbursements, to be fair, reasonable and proportionate.

[56] The total being ordered is $189,191.95, all in.

E. Other

[57] The mother seeks a finding that approximately 75% of her costs were incurred respecting the support issues. I agree with her approximation. While the Court dealt with equalization at the trial, the most significant issues clearly were the determination of the father's income, and the support issues.

[58] Expressed in dollars, of the total amount being ordered, 75% is $141,893.96 (i.e. $189,191.95 x 0.75).

[59] Although she has asked for this finding about the 75% apportionment, the mother has not specifically asked for an Order that 75% of any costs Order be enforced through the Family Responsibility Office as an incident of support. Perhaps the mother seeks a finding of 75% apportionment for other reasons. I will nevertheless make provision for enforcement through the Family Responsibility Office, if the mother wishes to act upon it.

PART III: ORDER

[60] I make the following final Orders pursuant to the Family Law Rules and the Family Responsibility and Support Arrears Enforcement Act, 1996:

(a) The Respondent father shall pay costs to the Applicant mother in the amount of $189,191.95, inclusive of fees, disbursements, and HST;

(b) 75% of the mother's costs were incurred respecting the support issues;

(c) If necessary for the purpose of quantifying 75% of what is being ordered, for example for enforcement purposes, that amount is $141,893.96;

(d) For clarity, the entire amount of costs ordered in paragraph (a) is due and payable. However in the mother's sole election, she may seek to enforce $141,893.96, of the total $189,191.95 in costs being ordered, through the Family Responsibility Office, as an incident of support; and

(e) If the mother chooses to do so, she may submit a draft SDO and a draft SDOIF respecting the 75% amount of the costs being ordered. A support deduction Order shall then issue respecting that 75% portion of the costs, to be enforced through the Family Responsibility Office as an incident of support.

[61] The Court thanks Ms. Boulby for providing the submissions and assisting the Court with its deliberations respecting costs.

Justice Alex Finlayson

Released: October 29, 2024

Newmarket Court File No.: FC-19-58798-00

Ontario Superior Court of Justice

Between: Randa Issa (Applicant Mother) – and – Ramzy Haidar (Respondent Father)

Reasons for Judgment Regarding Costs

Justice Alex Finlayson

Released: October 29, 2024