SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: F-904/08
DATE: 2012-01-20

RE: RAJKA KARAMAN

AND

ZARKO KARAMAN

BEFORE: The Honourable Madam J. A. Justice Milanetti

COUNSEL:
Ms. Ann Bruce, for the Applicant
Mr. Peter Borkovich, for the Respondent

COSTS ENDORSEMENT

[ 1 ] Each of the parties to this action seek their costs:

(a) The respondent, based on his formal offer to settle dated May 10 th , 2010 and his substantial success;

(b) The applicant on the basis that the respondent and/or his lawyer/the system somehow acted unfairly.

[ 2 ] This almost eight day trial revolved primarily around the issue of the custody of the couple’s youngest child, Goran, who had been living with his father since January 24 th , 2009. (Goran joined his older brother who had been with his father since the parties separated in July 2007.)

[ 3 ] Mrs. Karaman was visibly heartbroken by this turn of events and sought to have her son returned to her custody.

[ 4 ] The problem with this was that Goran was 15, had voluntarily moved to his father’s home, was doing well there, and wanted to remain.

[ 5 ] The Office of the Children’s Lawyer was involved and made the parties aware of all of these factors.

[ 6 ] Despite such, the applicant maintained that Goran was “kidnapped” by his father – one of the very many criminal and quasi criminal allegations levied against the respondent over the course of this trial.

[ 7 ] None of these most serious allegations were in any way borne out by the evidence presented me. The entire trial was an exercise in malicious and unsubstantiated allegations against the respondent, his current partner, and even her daughter.

[ 8 ] The allegations tendered by the applicant ranged from the respondent being a kidnapper to a murderer to a pedophile. I cannot disagree with the submission of respondent’s counsel that the applicant was reckless, unrealistic, and derogatory throughout.

[ 9 ] Mr. Karaman was indeed forced to trial to protect Goran’s interest in the face of the applicant’s refusal to recognize Goran’s wishes.

[ 10 ] Mr. Karaman is indeed entitled to his costs of this action. Based on his May 10 th , 2010 Offer to Settle, I find he is entitled to substantial indemnity costs from that day forward up to and including the trial of the action which was heard over almost eight days from June the 28 th to July the 8 th , 2010.

[ 11 ] The respondent claims $12,600 for trial preparation – 6 hours a day x 7 days = 42 hours x $300 / hour. He additionally makes a claim for eight days attendance at trial at $3,000 per day for an additional $24,000. HST and the disbursement relating to the passing of the trial record are over and above. (I note that the respondent passed the trial record as the applicant had failed to do so.).

[ 12 ] Counsel for the applicant argues that these amounts are unsubstantiated as no dockets were provided; and that the respondent was unprepared at trial.

[ 13 ] She further argues that there only seven and a half days, not eight of trial. I recall this to be the case.

[ 14 ] The party seeking its costs has an obligation to produce dockets if requested. In the absence of these I would reduce the preparation time by 10 hours or $3,000. I would similarly reduce the trial time by $1,500 to reflect the ½ day (rather than 1 full) eighth day sitting.

[ 15 ] Aside from those reductions (amounting to $4,500) the respondent shall have his substantial indemnity costs of $9,600 for preparation time and $22,500 for trial plus HST and disbursements.

[ 16 ] The account for time prior to the offer shall be paid on a partial indemnity basis (2/3 of the $4,500 sought or $3,000). I will not exercise my discretion to award substantial indemnity for the entire litigation as I could not say that the conduct of the applicant throughout was unreasonable.

[ 17 ] As such, the respondent shall have his costs of:

$3,000.00 (partial indemnity prior to offer)

$9,600.00 (preparation time for trial)

$22,500.00 (trial time for 7 ½ days)

$290.00 (disbursements)

Total: $35,390.00

Plus HST: $4,600.70

MILANETTI J.

DATE: January 20, 2012

COURT FILE NO.: F-904/08

DATE: 2012-01-20

SUPERIOR COURT OF JUSTICE - ONTARIO RE: RAJKA KARAMAN AND ZARKO KARAMAN BEFORE: The Honourable Madam Justice J. A. Milanetti COUNSEL: Ms. Ann Bruce, for the Applicant Mr. Peter Borkovich, for the Respondent COSTS ENDORSEMENT MILANETTI J. JAM:mg

DATE: January 20, 2012