Court File and Parties
Court File No.: FS-11-374690
Date: 20121003
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ahmed M. Nadar, Applicant
AND:
Aida Gamal Nadar, Respondent
AND:
Lina Nadar and Danya Nadar, Daughters
BEFORE: Czutrin J.
COUNSEL:
Dani Z. Frodis , for the Applicant
Sarah Boulby , for the Respondent
Daniel S. Melamed , for the Daughters (did not appear)
HEARD: August 21, 2012
ENDORSEMENT
[ 1 ] This endorsement deals with costs arising from my disposition of the motion brought by the Applicant to compel the Respondent to produce documents ordered on consent on April 18, 2012, and additional documents the Applicant’s counsel requested by correspondence to the Respondent’s counsel. The Applicant also sought disclosure from a non-party who was purportedly a business associate of the Respondent. Although the non-party was served she did not attend or respond. The motion concerning this non-party was adjourned, without a return date, on seven days notice. The Applicant also sought orders compelling the Respondent to complete a financial statement as of his position on date of separation and to deliver a spare key to her car.
[ 2 ] The Respondent, in answering the Applicant’s claims, added the parties’ daughters Danya and Lina Nadar as the property issues may involve properties in their names. The daughters had yet to file an Answer to the claims made by the Respondent against them when I considered the Applicant’s motion. The daughters have retained counsel, Daniel Melamed, but he did not attend on the motion but at my direction counsel contacted Mr. Melamed’s office to advise him of my intended endorsement requiring the daughters to either deliver their Answer or bring a motion to strike the Respondent’s claims against them within 30 days.
[ 3 ] The Applicant claims success on his motion and asks that I order partial indemnity fixed at $5,000 on a Bill of Costs of $8,529.36. His claim of success is based on my fixing dates for compliance by the Respondent of the disclosure previously ordered,
[ 4 ] The Respondent claims success on the motion and claims costs on a partial indemnity basis of $5,308.78 on a Bill of Costs of $9,155.26.
[ 5 ] The Respondent claims success on the motion as I adjourned the non-party disclosure motion; the Applicant abandoned his proposed date of separation and accepted the Respondent’s date; that I accepted her position on compelling the completion of all pleadings (including the daughters) before any further disclosure is made; and I dismissed the request to deliver the car keys.
[ 6 ] The Applicant served and filed a Reply to the Respondent’s Costs Submissions asserting that the Respondent’s Costs Submissions contained errors:
The request for a fresh financial statement from the Respondent related the Respondent’s financial statement not being complete and not the valuation date issue.
And the allegation that the Applicant failed to follow a Reply as required by my endorsement.
[ 7 ] I found that the Applicant’s motion was “largely premature”:
The consent order of April 18, 2012 did not have a date for compliance.
Some of the requested disclosure required cooperation of non parties (including foreign banks).
The Applicant’s acceptance of the Respondent’s valuation date (“only today”).
The issues related to the parties’ daughters impact on the equalization issues and credibility.
Pleadings are not complete.
The Respondent conceded that she had yet to complete disclosure but claimed best efforts.
[ 8 ] I also directed that the parties are not to be in the same room at questioning.
[ 9 ] While I found the Applicant’s motion premature, pursuant to Rule 2, I felt compelled to make orders to manage the file.
[ 10 ] I find that the motion was unnecessary, unreasonable and overreaching and should have been resolved by counsel and the parties as they have an obligation to promote the objectives as provided for by the Rules.
[ 11 ] On the material filed and outcome of the motion, I find that the Respondent was the successful party and attempted to avoid the motion. The time spent on preparing and attending on this unnecessary motion and now the Costs Submissions would have been better spent on an agreement between the parties to do exactly what I ordered.
[ 12 ] I am confident that with the three experienced and senior family counsel on this case they could have agreed on a reasonable time table to complete the pleadings, disclosure and questioning and then proceed to either a settlement conference or a meeting to narrow issues. Only after such efforts failed would a motion then be necessary to resolve any issues that remain arising from the disclosure or the questioning that would prevent readiness for a meaningful settlement conference before a judge.
[ 13 ] In the circumstances, pursuant to Rule 24, I find that the Respondent is entitled to costs fixed at $5,308.78.
Czutrin J.
Released: October 3, 2012