Endorsement

DATE: 20120620
DOCKET : FS-08-344363

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Amir Ali Baradaran Aghaei, Applicant

AND:

Zore Ghods, Respondent

BEFORE: Czutrin J.

COUNSEL: Stephen J. Codas , for the Applicant

Harold Niman , for the Respondent

HEARD: January 17, 2012 and March 29, 2012

ENDORSEMENT

[ 1 ] This endorsement disposes of costs arising from the motions heard by me January 17, 2012 and March 29, 2012.

[ 2 ] The motions dealt with the Respondent, mother’s request to strike, the father’s application for non-payment of court ordered payments previously made by me and the Applicant, father cross-motioned to have payments paid out of trust funds held in-trust by his lawyer. Ultimately I ordered the payments from the trust funds. The Applicant seeks full recovery of costs of $47,630.

[ 3 ] The father claims success and as a result takes the position that presumptively he is entitled to costs.

[ 4 ] A letter sent by Applicant’s counsel purports to be an offer, and while not technically an offer under Rule 18, is appropriately considered under Rule 24 when considering both entitlement and quantum of costs.

[ 5 ] Applicant refers to the often cited case of Serra and the purposes of the modern costs rule. He also refers to the factors under rule 24(11).

[ 6 ] The Respondents seeks costs of $27,798.80 (full indemnity) or $16,679.28 (partial indemnity) or in the alternative, asks that the issue of costs be reserved to the trial judge.

[ 7 ] The trial is now scheduled to begin November 13, 2012.

[ 8 ] I am unable, on the facts of this case, to determine credibility issues between the mother and father and the added party, being Applicant’s father. A trial judge will be in a much better position to do so,

[ 9 ] When I made my endorsement of November 7, 2011 adjourning the trial at the request of the Applicant and his father, it was on terms and I did not expect on the evidence then available that would not be able to pay the payments I ordered. I concluded that because he would ultimately be credited, depending on findings of fact and credibility he would continue to live the lifestyle he appeared to manage. I specifically considered releasing funds from trust at that time but declined to do so.

[ 10 ] When I reluctantly, and with reservation, acceded to Applicant’s position to release the funds from his counsel’s trust account funds to satisfy I did so in order that the case would proceed to trial. I did not do so because I was in any better position to determine the merits of the parties’ competing positions. It was not about managing the case and having it proceed to trial or serious settlement discussions than success of the Applicant in the motion,

[ 11 ] I am, as indicated, in no better position to determine success.

[ 12 ] While the Family Law Rules speak to deciding costs at each step, the Costs Submissions and Bill of Costs will be available to the trial judge and I am exercising my discretion that I retain under the Courts of Justice Act to reserve these costs to the trial judge.

Czutrin J.

Released : June 20, 2012