ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-08-339507
DATE: 20120815

B E T W E E N:

HUSSEIN NOORMOHAMED DADA

Benjamin Salsberg, for the Applicant and the added parties

Applicant

• and -

KHATOON SHERALI KASSAM JIVRAJ also known as KHATOON DADA

Ainaz Jiwa, for the Respondent

Respondent

MOHAMMED HUSSEIN DADA AND NAUSHAD HUSSEIN DADA, added parties

HEARD: in writing

MESBUR J.

REASONS FOR DECISION ON COSTS

Introduction:

[ 1 ] After a four-day trial in late May and early June, I made a final order in this action on the following terms:

a) Granting a divorce to the parties, effective on the 31 st day following the date of these reasons;

b) Setting aside the marriage contract between the parties;

c) Requiring the applicant to pay the respondent an equalization payment of $20,373.67, together with prejudgment interest on that sum;

d) Requiring the applicant to pay the respondent arrears of spousal support to June 30, 2012 in the amount of $13,600. Interest will accrue on this sum only from July 1, 2012;

e) Requiring the applicant to pay the respondent spousal support of $200 per month commencing July 1, 2012. These payments bind the applicant’s estate.

f) Dismissing the claims against the added parties;

g) Dismissing the respondent’s claim for damages;

h) Issuing a Support Deduction Order.

[ 2 ] Although counsel were confident they could agree on the issue of costs, sadly they were unable to do so. I have now received costs submissions from both parties.

The parties’ positions on costs

[ 3 ] The applicant suggests that either he should be entitled to costs, or alternatively there should be no costs. He bases his first submission on what he characterizes as the respondent’s unfounded claims of fraud against him. This, he says, should result in an award of substantial indemnity costs in his favour. Alternatively, he says success in the action was divided, and there should be no order as to costs.

[ 4 ] The respondent takes the position that it is she who is entitled to costs. She suggests I should award her substantial indemnity costs of the action. Although there were no offers that would result in substantial indemnity costs, she says that the difficulties she experienced in obtaining proper financial disclosure from the applicant should result in an award of substantial indemnity costs in her favour. She characterizes herself as the “most successful” in the action, and says she should therefore be entitled to costs.

Time spent by each lawyer

[ 5 ] While only the respondent’s counsel submitted a detailed bill of costs, applicant’s counsel set in narrative form the hours spent. Applicant’s counsel expended more than 140 hours of time, while respondent’s docketed 159.6 hours of lawyer time, plus an additional 30.4 hours of law clerk time. Given these figures, I conclude the time spent by each lawyer was reasonable in the circumstances.

Partial or substantial indemnity

[ 6 ] Both parties set out some reasons why they should be entitled to substantial indemnity costs. I accept neither position. While it is true I did not set aside the conveyance of the applicant’s home from him to his sons prior to the marriage, the respondent did not allege fraud or fraudulent conveyance in relation to this transaction. She did not plead fraud. I therefore do not see this as a case where an unfounded allegation of fraud should result in substantial indemnity costs.

[ 7 ] Similarly, I do not see the disclosure issues as leading to an award of substantial indemnity costs. While the disclosure may not have been as timely as respondent wished, at the end of the day the parties agreed on all the values for all the assets of both parties both at the date of marriage and valuation day. That level of cooperation should not result in substantial indemnity costs.

[ 8 ] I therefore conclude that if either party is entitled to costs, those costs will be on a partial indemnity basis.

Appropriate hourly rates

[ 9 ] The “Information for the Profession” of the Costs Subcommittee of the Civil Rules Committee sets out maximum partial indemnity rates for costs. The maximum rates apply only to more complicated matters and to the more experienced counsel within each category.

[ 10 ] Using this as a guide, applicant’s counsel (a 1983 call) would be entitled to partial indemnity costs at a rate of no more than $350 per hour. Respondent’s counsel, a 1997 call, would be entitled to partial indemnity costs at a rate of no more than $300 per hour. He, however, charges his client at the rate of $275 per hour. A rate of $300 per hour would give him more than full recovery, and a rate of $275 per hour would give him full recovery. Since I have decided that any entitlement to costs is on a partial indemnity basis only, it seems to me a rate of $200 per hour would be more appropriate for him. Also, his law clerk is entitled to a maximum of $80 per hour.

Who is entitled to costs

[ 11 ] The most significant issue in the action was the validity of the marriage contract. Dependent on that issue were the respondent’s claims for spousal support and equalization. The respondent succeeded in setting aside the marriage contract, and also succeeded in obtaining an equalization payment and spousal support.

[ 12 ] The respondent did not succeed in her claims for damages or to set aside the conveyance of the home from the applicant to his sons prior to the marriage. Neither of these claims was particularly well articulated. Neither took an inordinate amount of court time, or time within the action. The damages claim was relatively modest. Setting aside the conveyance would have resulted in a higher equalization payment to the respondent, but there was no court time spent on calculating the different equalization scenarios, since the parties had agreed on the figures for both scenarios. In sum, these two issues on which the respondent was not successful did not take up much court time.

[ 13 ] On the whole, I find the respondent enjoyed more success than the applicant, and is therefore entitled to a portion of her costs. Using the hourly rates I have set out above, partial indemnity costs for the respondent would come to a total of about $35,000. The respondent would only be entitled to costs at that level had she enjoyed complete success on all the issues in the litigation.

Result

[ 14 ] Since the respondent did not enjoy complete success, her costs entitlement must be reduced to reflect this. The respondent will therefore have her costs of the action, fixed at $25,000 plus applicable taxes.

MESBUR J.

Released: 20120815