Court File and Parties

Court File No.: FC-10-36497
Date: 20130905
Superior Court of Justice - Ontario

Re: Mike Talisman formerly known as Mohammad Talebshariati, Applicant

And: Diana Stryjak also known as Diana Szczepanska, Respondent

Before: The Hon. Madam Justice S.E. Healey

Counsel:
H. Feldman, Counsel, for the Applicant
D. Stryjak on her own behalf

Heard: by written submissions

Endorsement on Costs

[1] This ruling on costs follows from the motion and cross-motion for disclosure brought by each of the parties, resulting in an order made on July 24, 2013 for extensive disclosure to be made by the respondent, and significantly less disclosure to be made by the applicant (Talisman v. Stryjak, 2013 ONSC 4954).

[2] The parties attended court on these motions for a full day on March 13, 2013 before McDermot J.. The applicant also brought a motion to compel the respondent to attend for further questioning before the applicant was questioned; when the respondent agreed to do so on the date of the motion, that aspect of his motion was resolved with costs payable to him in the amount of $750. However the balance of the disclosure motions was not reached and the parties were required to attend assignment court to obtain a long motion date, which was July 24, 2013.

[3] The respondent’s motion initially requested 145 items in a 32 page list, plus additional items set out in an affidavit, for a total of 181 requests. At the suggestion of McDermot J. the parties attempted during the day to refine that list, but were unable to agree on a pared-down list. On July 17, seven days before the motions were argued, the respondent served a new notice of motion and affidavit, in which she withdrew all of her disclosure requests except for 14 items.

[4] The applicant was largely successful in obtaining the orders that he sought. The disclosure that was ordered was extensive because of the plethora of claims made in this proceeding by the respondent, which have not yet been fully supported, if at all, by the disclosure that she has made to date. Her pleading, and her initial disclosure request, have both greatly increased the costs associated with the applicant’s motion. Having withdrawn such a significant portion of her initial motion, I agree that pursuant to Rule 12(3) of the Family Law Rules costs should be awarded on the higher scale. Further, it was part of the relief being sought by the respondent that the applicant should be found in contempt of court for failing to produce Mr. Rosen’s file, which involves allegations of bad faith and deliberate defiance of a court order, impugning the character of the person against whom such allegations are made. She pleads that Mr. Rosen, together with the applicant, “tricked, deceived, unduly influenced and coerced” her into signing documents that are at the heart of this proceeding. Yet the respondent has not obtained Mr. Rosen’s file herself, even though she initially acknowledged that he acted for her, nor has she sought to question Mr. Rosen or requested his file directly. Her motion for contempt was unsuccessful, as the applicant has never been ordered to produce Mr. Rosen’s file.

[5] These motions, in summary, involved questioning, a full day’s attendance, a further attendance at assignment court, and an attendance on July 24, together with preparation of affidavits and argument. The respondent achieved minimal success on her motion, whereas the applicant obtained an order for extensive disclosure. I cannot agree that sufficient facts have been proven to support a finding of bad faith, but do agree that the position taken by the respondent on these motions has wasted costs. Having reviewed the evidence, it does not support her argument that the applicant only began to provide disclosure after having been served with her motion.

[6] In reaching my decision regarding the costs of these motions I have disregarded the Offer to Settle included by the respondent in her costs submissions, as this offer was not made specifically to settle the two motions before me. Such offer to settle the proceeding in its entirety should not be disclosed to the court until the conclusion of a trial or when a final settlement is reached between the parties.

[7] Wide discretion in fixing costs remains with the court, bearing in mind the factors set out in Rule 24 of the Family Law Rules and the principles enunciated in the leading Ontario cases such as Anderson v. St. Jude Medical Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4th) 557 (Ont. Div. Ct.), Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), and Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722, 100 O.R. (3d) 66.

[8] The respondent pleads that she is unable to pay costs, and that she has had to discharge her former lawyer as she could no longer afford him. She will be familiar with the costs associated with the steps taken to bring and defend these motions, and her expectations of the costs that she would have to pay as a losing party would be informed by her own experience of legal fees. She is not entitled to reduced costs just because of her own self-representation, and did not put sufficient current financial information before the court to support her allegation of impecuniosity.

[9] Having considered all of the above, these circumstances and factors support an order for substantial indemnity costs. A review of the applicant’s cost outline shows nothing excessive about the time expended on these motions. Some discount is to be given to the respondent for the partial success by virtue of the order obtained by her. Accordingly, this court orders that the respondent shall pay to the applicant the costs of these motions fixed in the amount of $21,000 inclusive of HST and payable within 30 days.

HEALEY J.

Date: September 5, 2013