SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-12-378242
DATE: 2013/04/03

RE: Rajib Hasan v. Wahida Khalil

BEFORE: Justice Moore

COUNSEL:
Jaret Moldaver, for the Applicant

Eric Shapiro, for the Respondent

DATE HEARD: 2 April 2013

E N D O R S E M E N T

Moore J.

[1] The parties have not agreed upon costs issues following upon the motions determined by my endorsement released on 20 December 2012. I directed counsel to exchange costs positions. Mr. Moldaver complied, Mr. Shapiro did not.

[2] Oral submissions on costs were heard today, during which counsel reviewed the provisions of the applicable Family Law Rules,[^1] being rules 18 and 24. They agreed on the principles guiding the court in the exercise of its discretion under the rules and the factors that the court should consider.

[3] They agree as well that an over-arching concern must be fairness. The court must strive to award costs that are fair and reasonable for the unsuccessful party to pay.[^2] Regrettably and without explanation, Ms. Khalil did not file an updated financial statement for purposes of the motions at issue now but her earlier statement discloses the financial wherewithal to meet the demands made against her in this matter. She has filed no information or documents attesting to what her reasonable expectations would be if called upon to pay costs.

[4] On the other hand, Mr. Hasan served an offer to settle in a timely fashion before the motion. This offer afforded Ms. Khalil the opportunity to resolve the motions without having to incur the time and expense necessarily associated with contesting Mr. Hasan’s positions on the motions and without having to pay him any costs of either motion.

[5] Then, after the motions were heard and determined, Mr. Hasan, through his counsel, provided Ms. Khalil with a Bill of Costs detailing costs claims of $11,424.94 and an offer to settle costs at $7,500.00. She did not respond to either

[6] The offer to settle the motions complied in every respect with the rules. It was a reasonable offer and Ms. Khalil proceeded into the hearing of the motions at her peril. Until that point, she had not delivered an offer nor, as is apparent from my findings, comported herself reasonably in respect of the matters in issue and had shown no intention of compromising her position in order to resolve matters.

[7] It was not reasonable for Ms. Khalil to require Mr. Hasan to travel twice per week between New York and Toronto to see his daughter. While their child was less than two years of age at the time of the motions, it was important to Mr. Hasan to have an efficient and effective opportunity to develop his relationship with his daughter in the months leading up to the appointments with Dr. Butkowsky. Mr. Hasan has undertaken to fund the upfront costs of Dr. Butkowsky’s involvement. His work on behalf of the child and her parents will likely be critical to the parenting plans going forward through the foreseeable future.

[8] The motions were moderately complex in terms of the legal issues they presented but more so because they engaged areas of social science expertise and factual issues that the parties disagreed upon. The documentation made necessary for purposes of the hearing of the motions was comprehensive and complex.

[9] In assessing and awarding costs of motions such as these, it is not appropriate to undertake a line by line analysis of the Bill of Costs but, beyond that, there is no evidence filed and no submissions made to suggest that time spent was meaningfully over stated or un-necessarily undertaken. Nor has there been criticism of the claimed disbursements.

[10] Having considered the relevant factors in the rules, I conclude that an assessment of costs on a partial indemnity basis to the date of Mr. Hasan’s offer of $5,000.00 is fair and reasonable. From the date of the offer through the hearing, Mr. Hasan incurred further expenses of $2,796.75; through that interval, he shall recover full indemnity costs as is contemplated by rule 18(14) and those costs are assessed and awarded in the sum of $2,796.75.

In the result, Mr. Hasan shall recover costs from Ms. Khalil in the total sum of $7,796.75; these costs are payable within sixty days of the date of this endorsement.

Moore J.

DATE: 3 April 2013

[^1]: O. Reg. 114/99

[^2]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291.