Farooq v. Majeed, 2011 ONCJ 827
Opinion
Milton Registry No. 81/11 DATE: 2011·XII·20 CITATION: Farooq v. Majeed , 2011 ONCJ 827 ONTARIO COURT OF JUSTICE RE: AMBREEN FAROOQ — Applicant TARIQ MAJEED — Respondent BEFORE: Justice Roselyn Zisman COUNSEL: Jeffrey S. Hart, for the applicant Respondent self represented For previous proceedings, see: Farooq v. Majeed , 2011 ONCJ 719 , [2011] O.J. No. 5676, 2011 CarswellOnt 14144 (Ont. C.J.), per Justice Roselyn Zisman. [ 1 ] JUSTICE R. ZISMAN ( endorsement ):— On November 2, 2011, I released my judgment respecting this motion. I granted the applicant’s
summary judgment motion for sole custody of the children of the marriage, permitted her to travel abroad with the children without the respondent’s consent and ordered that the respondent’s access to the children occur only in Ontario and that his access be supervised. [ 2 ] The applicant’s counsel was to submit brief written submissions for costs, if he was seeking costs on behalf of his client. [ 3 ] The applicant’s counsel served the respondent with his submissions for costs, a bill of costs and a portion of his settlement conference brief that contained his client’s offer to settle. [ 4 ] The respondent has forwarded to the court an e-mail that is unresponsive to the issue of costs.
It is not clear whether or not this e-mail was served on the applicant’s counsel. As the respondent does not address the issue of costs, I intend to proceed to render my decision on the issue of costs. [ 5 ] The applicant was completely successful on this motion; she was granted the relief she sought. [ 6 ] The respondent had requested an order of joint custody, unsupervised access in British Columbia, and an order that the applicant not be permitted to travel with the children to Pakistan without his consent. His position was totally unrealistic and unreasonable.
The parties have no ability to communicate and in fact, have not had any significant communication for almost four years. The respondent resides in Surrey, British Columbia and the distance alone and the time difference creates practical problems with communication. The respondent has only seen the children two times in the last four years and those visits were supervised. The respondent also acknowledged that the applicant was a good parent.
Other than disagreeing with her desire to travel with the children to Pakistan in the future, he raised no other concerns regarding any decisions she has made about the children.
[7] Pursuant to subrule 24(1) of the Family Law Rules, O. Reg. 114/99, as amended, there is a presumption that thesuccessful party is entitled to costs of a motion. [8] Subrule 24(11) provides a further list of factors a court should consider in dealing with costs:
(11) Factors in costs.— A person setting the amount of costs shall consider, (
a) the importance, complexity or difficulty of the issues; (
b) the reasonableness or unreasonableness of each party’s behaviour in the case; (
c) the lawyer’s rates; (
d) the time properly spent on the case, including conversations between the lawyer and the party orwitnesses, drafting documents and correspondence, attempts to settle, preparation, hearing,argument, and preparation and signature of the order; (
e) expenses properly paid or payable; and (
f) any other relevant matter. [9] In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 CarswellOnt 2475 at paragraph [8],the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles: 1. to partially indemnify successful litigants for the cost of litigation; 2. to encourage settlement; and 3. to discourage and sanction inappropriate behaviour by litigant [10] As was pointed out in Boucher et al. v. Public Accountants Council for the Province of Ontario, , 71O.R. (3d) 291, 188 O.A.C. 201, 48 C.P.C. (5th) 56, [2004] O.J.
No. 2634, 2004 CarswellOnt 2521 (Ont. C.A.), the award of costs mustbe fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings. [11] The applicant’s counsel is only seeking $1,392.16 inclusive of H.S.T. and he is not seeking any payment fordisbursements.
He is also seeking that the costs be made payable to Legal Aid Ontario. [12] This is certainly a modest fee and recognizes that the respondent is of limited means. [13] However, there are various issues and concerns that the submissions for costs and the bill of costs raise. [14] They can be summarized as follows: (
a) An offer to settle in a settlement conference brief is not an offer in accordance with rule 18 of the Family LawRules. As is clear from subrule 17(23) of the Family Law Rules, settlement conferences, settlement conferencebriefs and any statement in such a brief are confidential and are not to be disclosed. This includes any offers tosettle in that brief. If counsel wish to rely on an offer to settle in support of any claim for costs, a separate offer tosettle should be served; See Entwistle v. MacArthur, , 157 A.C.W.S. (3d) 773, [2007] W.D.F.L.4904, [2007] O.J. No. 1958, 2007 CarswellOnt 3149 (Ont. Fam. Ct.); (
b) Counsel who are retained pursuant to a legal aid certificate are not required to only request a counsel fee based onthe legal aid tariff. Counsel are entitled to base their bill of costs on an hourly rate to which they would be entitledon a private retainer. See Ramcharitar v. Ramcharitar, Jagam and Legal Aid Ontario, , 62O.R. (3d) 107, 32 R.F.L. (5th) 435, 27 C.P.C. (5th) 331, [2002] O.J. No. 4238, 2002 CarswellOnt 3666 (Ont.S.C.). In this case, counsel only requested an hourly rate of $88.00 per hour.
In this case, counsel who has 6 yearsof experience would have been entitled to a much higher hourly rate than was requested. However, I do not findthat it would be appropriate for the court to arbitrarily increase the hourly rate charged; (
c) The bill of costs includes fees for prior attendances at a cases conference. These costs cannot be claimed as inaccordance with subrule 24(10) of the Family Law Rules, costs must be determined at each step of the proceeding. As costs for the various attendances at the case conference were not requested, they cannot now be claimed andmust be deducted from the bill of costs. See Islam v. Rahman, 2007 ONCA 622, 228 O.A.C. 371, 41 R.F.L. (6th)10, [2007] O.J. No. 3416, 2007 CarswellOnt 5718 (Ont. C.A.); (
d) Costs were not claimed for initial interviews and preparation of the originating application. These costs could havebeen claimed as they would not be attributable to any specific step in the proceeding. Again, it is not appropriatefor a court in reviewing a bill of costs to include costs that must have been incurred and that could have beenproperly claimed if counsel has chosen not to include those costs in the bill of costs submitted to the court; and (
e) There is no jurisdiction for the court to order costs be paid to a third party such as Legal Aid Ontario. [15] I make the following findings based on the factors set out in subrule 24(11): (
a) Although this was not a complex motion, it was very important to the applicant to have the issue of custodydetermined and to have the flexibility to make decisions about the children without the ongoing difficulty ofhaving to deal with the respondent; (
b) Although the respondent’s position may have been unreasonable, his behaviour was not unreasonable. Heattempted to the best of his ability to file materials and participate in the proceedings; (
c) As previously indicated, the fees charges are reasonable, in that they are much lower than could have beenclaimed. The time spent, except for the time for conferences that cannot now be claimed, was reasonable. Therewas no claim for any disbursements; (
d) The respondent’s limited means have also been considered. [16] Based on the foregoing, I find that a fair and reasonable amount of costs in this matter is $1,000.00. [17] Order as follows:
1. The respondent, Tariq Majeed shall pay to the applicant, Ambreen Farooq, costs fixed at $1,000.00 within 90 days. 2. Mr. Hart will prepare this order and the approval as to form and content by the respondent is hereby dispensed with. ___________________________ Justice Roselyn Zisman DATE: 20 December 2011
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