Zarepou r v. Jamshidi, 2013 ONSC 5126

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-09-2134

DATE: 2013/08/07

RE: MAHMOUD ZAREPOUR - Applicant v. MARYAM JAMSHIDI - Respondent

BEFORE: RATUSHNY, J.

COUNSEL: Susan E. Galarneau, counsel for the Applicant

Beverley Johnston, counsel for the Respondent

ENDORSEMENT AS TO COSTS

1By my Decision released May 21, 2013, costs were awarded to the applicant-husband in respect of the motion argued before me on April 23, 2013.

2Each party has now forwarded submissions on the quantum of costs to be paid by the respondent-wife.

3I accept the respondent’s submission that costs are to be decided at each step of a proceeding: Family Law Rules, O. REG. 114/99, Rule 24(10). I also agree it would usually be inappropriate for me to consider the applicant’s costs of his summary judgment motion before McMunagle J., a step in these proceedings that preceded the motion before me, without evidence before me as to the argument of the motion before McMunagle J. The only evidence before me with respect to the hearing of the summary judgment motion is that the applicant abandoned his motion after partial argument of it before McMunagle J. and those costs have yet to be determined. Given this paucity of evidence, I have not considered the applicant’s submissions on costs as submitted to McMunagle J. which were included in the applicant’s costs submissions to me for the April 23, 2013 motion.

4For the motion of April 23, 2013 before me, I consider the following as primary factors influencing the quantum of costs to be awarded:

1. The applicant was completely successful on the motion;

2. The financial issues in this case are of great importance;

3. As stated in my Decision and summarized at para. 36, the respondent has engaged in a pattern of conduct in contravention of this Court’s disclosure orders; she has delayed these proceedings; she has made erroneous and misleading allegations. In terms of assessing costs, it is in this context that I find the respondent has behaved unreasonably, she has acted in bad faith in connection with important financial issues and she has significantly increased the costs of these proceedings;

4. I do not accord any weight to the respondent’s submission that she is financially impoverished, given the findings in my Decision, and neither does her Offer to Settle dated November 8, 2012 have any credence in the context of her failure to provide financial disclosure.

5Costs are, therefore, appropriate on a full recovery basis in accordance with Rule 24(8).

6The applicant counsel’s hourly rate of $325.00 is not inappropriate given her level of experience and expertise. Her Bill of Costs indicates 8 hours of time spent immediately prior to and at the motion before me between April 18, 2013 to and including April 23, 2013, as well as a later 2.5 hours to prepare costs submissions, for a full recovery amount in respect of fees of $3412.50. The remainder of her time listed in her Bill of Costs is for between September 14, 2011 and the November 20, 2012 motion before McMunagle J., totalling almost 33 hours.

7The applicant asks that the fees and disbursements associated with the summary judgment motion before McMunagle J. on November 20, 2012 be included in my costs award.

8While I decline, as stated above, to simply sweep in all of the applicant’s costs from that prior motion to form part of his success on the later motion before me, I do recognize that the 8 hours spent by the applicant’s counsel for the motion before me would have been substantially shortened because of her preparation for that prior summary judgment motion brought by the applicant and subsequently abandoned. Her Bill of Costs refers to the preparation of an “additional affidavit” on April 18, 2013. All issues were argued before me. The entire Continuing Record was relevant.

9It is in this context and including, importantly, the respondent’s conduct as referred to above, that I regard some of the time spent prior to the motion before me as recoverable in respect of the applicant’s success before me.

10I add, therefore, an additional time amount of 10 hours to the 10.5 hours directly attributable to the motion before me in respect of counsel’s fees. This is a somewhat arbitrary allocation amounting to less than one-third of the total time of 33 hours claimed by the applicant in respect of the summary judgment motion before McMunagle J. This appears to me to be a reasonable allocation in all of the circumstances.

11The total costs award payable by the respondent to the applicant on a full recovery basis for legal fees is, therefore, the sum of $3412.50 plus $3250.00, namely $6662.50.

12I fix an amount for disbursements at $500 in respect of the total claimed disbursements spanning both motions of $1528.01.

13This brings the total costs amount to $8093.63 inclusive of fees, disbursements and HST, to be paid immediately by the respondent to the applicant.