COURT FILE AND PARTIES

COURT FILE NO.: FD1667/07

DATE: April 10, 2014

SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT

RE: Amneh Qaraan, applicant

AND:

Aziz Qaraan and Qaraan Investments Inc., respondents

BEFORE: MITROW J.

COUNSEL:
Monique Rae Bennett for the applicant

Norman A. Pizzale for the respondents

HEARD: January 13, 2014

reasons for decision relating to costs of the

proceeding and pre-judgment interest

INTRODUCTION

[1] Pursuant to the final order dated December 13, 2012 made at trial, counsel were required to arrange an appointment to make submissions on the remaining issues of costs and pre-judgment interest.

[2] For reasons that are not entirely clear, the hearing on the remaining issues was not scheduled until a year later in December 2013. It was then adjourned to January 13, 2014 as counsel required additional time to finalize and file written submissions, as previously ordered, prior to oral argument.

PRE-JUDGMENT INTEREST

[3] The parties’ written and oral submissions focused on pre-judgment interest in relation to the equalization payment. Pursuant to the final order (“the judgment”), the equalization payment owing by the respondent, Aziz Qaraan (“Mr. Qaraan”), to the applicant, Amneh Qaraan (“Ms. Qaraan”), was $1,475,706.70. The judgment stipulated that Mr. Qaraan had made advance payments to Ms. Qaraan in the amount of $1,168,789.29 to the date of trial, and that the balance owing was $306,917.41.

[4] Pursuant to the judgment, all money owing to Ms. Qaraan was ordered to be paid by Mr. Qaraan and his corporation, Qaraan Investments Inc. As reflectfed in the reasons for judgment, the joint responsibility of both respondents to make any payments ordered was agreed to by all parties.

[5] The relevant provisions of the Courts of Justice Act dealing with pre-judgment interest are reproduced below:

Prejudgment interest

128(1) A person who is entitled to an order for the payment of money is entitled to claim and have included in the order an award of interest thereon at the prejudgment interest rate, calculated from the date the cause of action arose to the date of the order.

Exception for non-pecuniary loss on personal injury

(2) Despite subsection (1), the rate of interest on damages for non-pecuniary loss in an action for personal injury shall be the rate determined by the rules of court made under clause 66 (2) (w).

Special damages

(3) If the order includes an amount for past pecuniary loss, the interest calculated under subsection (1) shall be calculated on the total past pecuniary loss at the end of each six-month period and at the date of the order.

Exclusion

(4) Interest shall not be awarded under subsection (1),

(a) on exemplary or punitive damages;

(b) on interest accruing under this section;

(c) on an award of costs in the proceeding;

(d) on that part of the order that represents pecuniary loss arising after the date of the order and that is identified by a finding of the court;

(e) with respect to the amount of any advance payment that has been made towards settlement of the claim, for the period after the advance payment has been made;

(f) where the order is made on consent, except by consent of the debtor; or

(g) where interest is payable by a right other than under this section.

Discretion of court

130(1) The court may, where it considers it just to do so, in respect of the whole or any part of the amount on which interest is payable under section 128 or 129,

(a) disallow interest under either section;

(b) allow interest at a rate higher or lower than that provided in either section;

(c) allow interest for a period other than that provided in either section.

Idem

(2) For the purpose of subsection (1), the court shall take into account,

(a) changes in market interest rates;

(b) the circumstances of the case;

(c) the fact that an advance payment was made;

(f) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; and

(g) any other relevant consideration.

[6] Ms. Qaraan submits that the interest rate should be 4.8%, being the rate prescribed by s. 128. After factoring in the various advance payments, Ms. Qaraan calculates pre-judgment interest at $238,813.02 (see Ex. A-2, tab 8). Ms. Qaraan did provide alternate calculations, some of which are referred to below.

[7] Mr. Qaraan submits, first, that no pre-judgment interest should be ordered on the equalization payment given the nature of his assets and support obligations as ordered by the court. I reject that submission. This is not an appropriate case for the court to exercise its discretion to deprive a successful litigant of pre-judgment interest. This is not a situation where Mr. Qaraan was faced with asset liquidity obstacles preventing him from making an equalization payment.

[8] The date of separation was February 28, 2007. During that year, Mr. Qaraan sold various apartment buildings yielding net proceeds to him of approximately $1 million. One of the sales occurred approximately two weeks prior to the date of separation, yielding net proceeds of over $400,000. Between May 2007 and July 2007, Mr. Qaraan wired at least $550,000 to an account he had at a bank in Dubai, this money to be applied towards his medical bills totalling $925,000, accumulated primarily during 2007 for various medical treatments, including hernia surgery at a private clinic in Romania. Mr. Qaraan failed to provide any credible explanation at trial why it was necessary for him to spend that excessive amount of money on medical treatment, rather than obtaining the medical treatment in Ontario.

[9] Mr. Qaraan, while in Romania in 2007, elected to donate $375,000 to an orphanage in Romania. The evidence at trial further disclosed that Mr. Qaraan travelled extensively, always first class, on at least 12 occasions, to international destinations, between May 2007 and July 2009, accompanied at times by his companion, Ms. Mioc, including the trips to Dubai and Romania in 2007. The reasons for judgment (paras. 64 – 68) refer to Mr. Qaraan’s frequent purchases of Mercedes Benz automobiles: during the period July 2005 and January 2009, Mr. Qaraan acquired 12 new Mercedes Benz automobiles. In January 2007, the month before separation, Mr. Qaraan purchased a new Mercedes Benz automobile having a value of approximately $140,000. On the day of separation, he purchased another Mercedes Benz automobile for $61,500. These amounts are exclusive of taxes.

[10] Mr. Qaraan had substantial funds within his control that could have been allocated to pre-judgment interest, and to be applied towards equalization and support obligations as set out in the judgment.

[11] The real issue in relation to pre-judgment interest centers around the interest rate and the period of time during which pre-judgment interest should be paid.

[12] Mr. Qaraan submits, in the alternative, that if pre-judgment interest is to be paid, then it should be paid at a much lower interest rate than the statutory rate of 4.8% because the high pre-judgment interest rate was in effect only during the early portion of the litigation, after which the pre-judgment interest rates changed dramatically over the remaining course of the litigation.

[13] Mr. Qaraan submits that the pre-judgment interest rate should be set at 1.3% because this was the pre-judgment interest rate prescribed for a number of the quarters starting with the second quarter in 2009 until trial. Mr. Qaraan further argues that pre-judgment interest should run from April 2008 and that the advance payments represented by the transfer to Ms. Qaraan of the matrimonial home ($593,000) and the Mercedes Benz vehicle ($51,265) should not be subject to pre-judgment interest at all because Ms. Qaraan had possession of the matrimonial home starting in the fall of 2007 shortly after her return from Jordan to Canada, and further because Ms. Qaraan had possession of the Mercedes Benz vehicle in December 2007 pursuant to an interim order. Ms. Qaraan’s interest calculations had accrued pre-judgment interest on those amounts until the assets were ordered transferred to Ms. Qaraan in 2010.

[14] If pre-judgment interest is to be paid, Mr. Qaraan calculates the amount to be approximately $23,635 using an interest rate of 1.3% and based on the net amount owing after crediting all the advance payments, but with an adjustment in relation to one of the advance payments being an RRSP transfer of close to $154,000 made in October 2010.

[15] The court has discretion pursuant to s. 130 to allow a different interest rate and to order that interest be paid for a period other than as prescribed by the legislation.

[16] A court may exercise its discretion, in appropriate circumstances, to average the pre-judgment interest rates where the rates have fluctuated since the litigation commenced: see the discussion on this issue by Blishen J. in Vanasse v. Seguin, 2009 4237 (Ont. S.C.J.) at paras. 35 – 37, and the authorities cited therein approving this practice, including Debora v. Debora, 2006 40663 (ON CA), [2006] O.J. 4826 (C.A.).

[17] The application in this proceeding was issued in October 2007. The annual average pre-judgment interest rates for each year for the years 2007 to 2012, being the years during which this litigation was ongoing, are as follows (see Ex. A-2, tab 2):

2007
2008
2009
2010
2011
2012

4.58%
3.93%
1.20%
0.70%
1.30%
1.30%

[18] I find that it is appropriate to consider some averaging given the steady decline of interest rates while this litigation was ongoing. However, s. 130(2)(f) of the Courts of Justice Act requires the court to take into account conduct that tended to shorten or lengthen the proceeding.

[19] As discussed in more detail below, when dealing with costs, Mr. Qaraan’s conduct in failing to provide timely and accurate financial disclosure lengthened the time it took to deal with this matter. This case should have, and could have, been concluded no later than the end of 2010, but for Mr. Qaraan’s conduct. Accordingly, the averaging of interest rates should only be for the period 2007 to 2010 inclusive. This avoids including the low interest rates for 2011 and 2012 which would lower the average even further, and thus reward Mr. Qaraan for his conduct.

[20] I find that the appropriate pre-judgment interest rate is 2.6%, being the average of the annual average pre-judgment interest rates for 2007 to 2010 inclusive. I find that pre-judgment interest should be payable from February 28, 2007, being the date of separation. There is no basis on the facts of this case to order that pre-judgment interest should commence at a different time.

[21] I do agree, however, with Mr. Qaraan’s submission that no pre-judgment interest should accrue on the value of the matrimonial home. Ms. Qaraan had possession of the matrimonial home soon after her return from Jordan with the children in 2007. I also accept Mr. Qaraan’s submissions to some extent regarding the Mercedes Benz vehicle. Ms. Qaraan received possession of the Mercedes Benz vehicle pursuant to an order dated December 19, 2007. No interest on the value of the vehicle should accrue thereafter.

[22] Ms. Qaraan’s reply submissions on pre-judgment interest contain an alternate calculation for pre-judgment interest where the matrimonial home has been excluded entirely (see Ex. A-7, tab 5). The interest rate used in this calculation is 2.17% (being a six year average for the years 2007 – 2012). This calculation shows the value of the Mercedes Benz vehicle being credited as an advance equalization payment effective February 2, 2010. The total pre-judgment interest as calculated is $61,567.73. I am satisfied that this calculation is correct and properly the credits all advance payments (see para. 182 of reasons for judgment for details of the advance payments) on the day the advance payments were made, but subject to the following:

a) the pre-judgment interest rate needs to be adjusted to 2.6% from 2.17%; and

b) the credit for the Mercedes Benz vehicle ($51,265) should be effective December 19, 2007 rather than February 2, 2010.

[23] Applying the interest rate adjustment results in the following: $61,567.73 x (.026 / .0217) = $73,767.78 (adjusted pre-judgment interest).

[24] For the second adjustment, the pre-judgment interest must be reduced by crediting the advance payment represented by the transfer of the Mercedes Benz motor vehicle effective December 19, 2007 (rather than February 2, 2010) as follows: $51,265 x (786 days / 365 days) x .026 = $2,870.28.

[25] The resulting pre-judgment interest is the difference between the above two amounts, namely $70,897.50, and this is the amount that Mr. Qaraan shall pay.

COSTS

[26] Ms. Qaraan seeks costs of $230,200.77 on a full indemnity basis. Ms. Qaraan submits that Mr. Qaraan has acted in bad faith. Ms. Qaraan has provided a detailed bill of costs included in Ex. A-1.

[27] Mr. Qaraan disputes the quantum of costs claimed. He further argues that Ms. Qaraan has acted in bad faith. Mr. Qaraan denies he has acted in bad faith. Mr. Qaraan has not filed a bill of costs.

[28] This was a long trial held over a period of 18 days starting in February 2012 and ending in May 2012, with additional written submissions filed in June 2012.

[29] Custody and access issues were resolved; the issues for trial were equalization payment, child support and spousal support.

[30] Ms. Qaraan did achieve success. She was awarded a significant equalization payment, although a number of advance payments were made. Spousal support and child support were ordered to be paid both on a retroactive and prospective basis, giving credit for various payments already made by Mr. Qaraan pursuant to an interim support order and other amounts paid prior to trial (and summarized at para. 379 of the reasons for judgment).

[31] Mr. Qaraan’s position at trial, that he had not earned any income since 2010, was rejected and instead income was imputed to Mr. Qaraan: $75,000 for 2010; $100,000 for 2011 and 2012, and child support and spousal support were based on those incomes.

[32] The reasons for judgment, in relation to the equalization payment, dealt with the valuation of various assets and liabilities that remained in dispute at the time of trial. As noted in more detail below, Mr. Qaraan achieved some success on those issues. In relation to child support, Mr. Qaraan was successful in having the child support for the eldest child dismissed effective March 1, 2012, but this order was on a without prejudice basis to Ms. Qaraan’s right to bring a claim for child support for the eldest child if that child is a “child of the marriage” within the meaning of the Divorce Act.

[33] I find that Ms. Qaraan is presumptively entitled to costs pursuant to r. 24(1) of the Family Law Rules, as Ms. Qaraan achieved success on the claims that she made or, at the very least, Ms. Qaraan was more successful than Mr. Qaraan.

[34] The substantive issue in relation to costs is quantum, and this includes the applicability of r. 24(8):

If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

[35] Mr. Qaraan’s failure to provide accurate and timely disclosure was a significant factor contributing to the unnecessary length of this case that started in 2007 and ended in 2012. The time dockets filed on behalf of Ms. Qaraan, and the orders exhibit brief filed at trial, demonstrate that Ms. Bennett, who was Ms. Qaraan’s counsel throughout this lengthy case, faced continuous, ongoing struggles to get meaningful, complete and timely disclosure from Mr. Qaraan. Paragraphs 189 to 195 of the reasons for judgment describe this conduct and include the following:

• financial statements filed by Mr. Qaraan throughout the case were replete with inaccuracies and non-disclosure;

• failure by Mr. Qaraan to disclose assets;

• breach of court orders by Mr. Qaraan that imposed timelines for financial disclosure, including an order dated December 6, 2007 that required Mr. Qaraan to provide an updated financial statement within 60 days, but which was not delivered until February 2009;

• in November 2008, Mr. Qaraan was found in contempt of two orders (one of them a consent order) relating to production of financial disclosure.

[36] In 2010, Mr. Qaraan sold property that he owned in Jordan, in contravention of an interim order restraining depletion of assets (see para. 25 of the reasons for judgment). Mr. Qaraan placed an additional mortgage on his residence in contravention of a “freezing” order against that property and other assets owned by Mr. Qaraan. I reject entirely Mr. Qaraan’s submission that the contempt finding was not a “significant contempt” because the amount of costs ordered was only $1,000. The contempt finding was serious. Mr. Qaraan was found in contempt of two orders, with one of the orders being a consent order.

[37] It is abundantly clear that Ms. Bennett was distracted from focussing her efforts on resolution and settlement-based strategies by being regularly side-tracked with disclosure issues. Mr. Qaraan’s conduct included the following negative effects:

• it increased legal costs unnecessarily;

• it delayed significantly the just resolution of this case;

• it compromised the effectiveness of any conferences and it robbed Ms. Qaraan of any early ability to engage in a meaningful assessment of the case for the purpose of submitting a constructive and informed offer to settle.

[38] I adopt the discussion by C. Perkins J. as to the meaning of “bad faith” in S.(C.) v. S.(M.), 2007 20279 (ON SC), 2007 CarswellOnt 3485 (S.C.J.) at paras. 16 – 17, affirmed 2010 ONCA 196, 2010 CarswellOnt 1493 (C.A.) at paras. 10 – 12.

[39] I find that Mr. Qaraan has engaged in bad faith conduct. Mr. Qaraan’s conduct was wilful and deliberate; it fell far outside the range of mere negligence or bad judgment, as illustrated, in part, by Mr. Qaraan’s defiance of court orders and the finding of contempt made against him.

[40] Turning next to Ms. Qaraan, a finding was made at trial (para. 340 in the reasons for judgment) that Ms. Qaraan’s non-disclosure of certain facts during her testimony amounted to an intention to mislead the court.

[41] This finding related to Ms. Qaraan’s testimony in support of her claim for ongoing spousal support. Ms. Qaraan failed to tell the court that she had remarried, that she was expecting a child and that her husband was living with her. Ms. Qaraan filed two financial statements prepared shortly before her trial testimony that listed people living in her household, and that failed to include her husband (see paras. 326 – 340 of the reasons for judgment). I find that Ms. Qaraan has engaged in bad faith conduct given her intention to mislead the court.

[42] The question now becomes: what should be the impact of the findings of bad faith? C. Perkins J. examined this very question in S.(C.), supra, and posited the following at para. 24:

24 The wording of the rule (for which I must take some responsibility, I acknowledge) is brief and leaves some unanswered questions. If a party has acted in bad faith on one occasion, are the costs of the whole case to be awarded against the party on a full recovery basis? What if it was a small act of bad faith? What if it was only in relation to one issue, and on the other issues the party behaved properly? Are the costs to be a full recovery only in respect of the consequences of the bad faith? What impact do the factors and the discretion in subrule 24(11) have on the full recovery mandated by subrule 24(8)? My tentative conclusion is that full recovery costs should be awarded in relation to the issues affected by the bad faith and then the whole picture should be looked at again in light of the considerations in subrule 24(11) and the discretion in that provision should be used as necessary to produce the correct overall result.

[43] Ms. Qaraan’s act of bad faith was in relation to the issue of spousal support for the period 2011 onwards. It was isolated, more akin to what C. Perkins J. described as a “small act of bad faith.” The reasons for judgment noted (at para. 340) that there were portions of Ms. Qaraan’s testimony where Ms. Qaraan was a credible witness. Ms. Qaraan’s act of bad faith did not lead to any negative consequences for Mr. Qaraan given that the truth unfolded during cross-examination of Ms. Qaraan, including her cross-examination when she was testifying in reply.

[44] In contrast, Mr. Qaraan’s bad faith infected a substantial part of the proceeding, was not isolated and included failure to comply with court orders. Mr. Qaraan’s actions impacted negatively on Ms. Qaraan.

[45] In relation to Ms. Qaraan, a proper approach in applying r. 24(8) is to disentitle Ms. Qaraan from recovering any costs in relation to the issue of spousal support for the period 2011 onwards (2011 being the year that Ms. Qaraan remarried) and, further, awarding full recovery costs on that issue to Mr. Qaraan.

[46] Mr. Qaraan’s bad faith conduct covered a period of time starting in 2007, with the commencement of the application, until the end of 2010. In or about April 2011, Mr. Pizzale (who became Mr. Qaraan’s third lawyer) stepped in. This became the “trial leg” of this case, with Mr. Pizzale at the helm representing Mr. Qaraan. With Mr. Pizzale’s involvement, the case proceeded with reasonable dispatch to trial. While Mr. Qaraan’s ongoing disclosure merited some criticism as discussed in the reasons for judgment, Mr. Qaraan’s conduct during the “trial leg” of this case did not rise to the level of bad faith. I find that Mr. Qaraan, as a result of his bad faith conduct, should pay full recovery costs to Ms. Qaraan from the start of this case in 2007 to the end of 2010.

[47] If I am wrong in my findings that bad faith conduct occurred then, in my view, a similar result would be justified by characterizing the behaviour of both parties as unreasonable.

[48] Regarding the factors in r. 24(11), several of the factors can be dealt with briefly. This case was of high importance to both parties, with a mid to high level of complexity. This case produced a long trial with substantial documentary evidence. The issue of reasonableness has been addressed above when dealing with bad faith. Ms. Bennett’s hourly rates, that started at $250 and progressively increased to $350, are reasonable for a lawyer of 20 years’ experience. The disbursements claimed are reasonable, as is the $75 hourly rate for Ms. Bennett’s clerk (although I note that the total time docketed by the clerk was very minimal).

[49] Ms. Qaraan submitted one comprehensive formal offer to settle dated July 2, 2009. The trial judgment was clearly not as favourable or more favourable to Ms. Qaraan in many respects. However, I do not intend this to be a criticism of Ms. Qaraan. She was labouring under the almost impossible task of trying to submit a meaningful offer to settle while being faced with incomplete financial disclosure.

[50] Mr. Qaraan did not submit a formal offer to settle but he did sign proposed final minutes of settlement on November 4, 2011 which were forwarded to Ms. Qaraan but which she did not sign. Even if these minutes of settlement constituted a formal offer to settle for the purpose of r. 18, it is clear that the trial judgment is not as favourable, or more favourable than the minutes of settlement.

[51] There are no offers that engaged the automatic costs consequences set out in r. 18(14).

[52] This brings me to r. 24(11)(d) – the time properly spent.

[53] Costs pursuant to the Family Law Rules are to be quantified according to r. 24(11). The two traditional scales of costs are no longer appropriate. The Family Law Rules, in relation to costs, differ significantly from the Rules of Civil Procedure. If a party is liable to pay costs, the court must fix the amount “at some figure between a nominal sum and full recovery”: Sims-Howarth v. Bilcliffe, 2000 CarswellOnt 299 (S.C.J.), per Aston J., at para. 4. This discussion by Aston J. was approved by the Court of Appeal for Ontario, stating that the Family Law Rules demand flexibility in examining the factors in r. 24(11) without any assumptions about categories of costs: C.A.M. v. D.M., 2003 18880 (ON CA), 176 O.A.C. 201 (Ont. C.A.) at para. 42.

[54] In fixing costs, the overriding principle is reasonableness. The judge should not engage in a purely mathematical exercise. A judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party, rather than any exact measure of the successful litigant’s actual costs: Davies v. Clarington (Municipality), 2009 ONCA 722, 2009 CarswellOnt 6185 (C.A.) at para. 52.

[55] The total costs sought by Ms. Qaraan included legal fees of just over $198,000. The total legal costs, including disbursements and taxes, incurred to the end of 2010 are approximately $108,000.

[56] In fixing costs, amounts claimed for steps such as motions and conferences should be excluded where no order was made as to costs of those steps or where the order was silent on the issue of costs: Islam v. Rahman, 2007 ONCA 622, 2007 CarswellOnt 5718 (C.A.).

[57] Ms. Bennett submitted that costs relating to motions were excluded from the bill of costs, although it was agreed that some costs regarding the “freeze” motion in February 2009 were included. The numerous orders relating to motions contained in the orders brief either made an award of costs or were silent as to costs. In one instance, costs were fixed in the amount of $1,000 payable in the cause. Despite various references in Ms. Qaraan’s bill of costs to attendances at conferences, there were no orders dealing with costs of those steps.

[58] Accordingly, in fixing costs, it is necessary to exclude any time spent on conferences and any time docketed in relation to motions (regarding the latter, there were some sporadic time docket entries that did relate to motions, in addition to the motion for the “freezing” order).

[59] My review of the bill of costs suggests that the following amounts should be excluded: the sum of $13,800 (inclusive of a 5% GST estimate) for the period up to the end of 2010; and $5,500 (inclusive of 13% HST) for the period after 2010.

[60] With one exception, I do not agree with Mr. Qaraan’s submission that the trial was prolonged because Ms. Qaraan called unnecessary witnesses. Ms. Qaraan was forced in having to call various witnesses because of Mr. Qaraan’s past record of non-disclosure and in order to elicit from those witnesses relevant testimony necessary to get an accurate picture of Mr. Qaraan’s true financial situation. The exception, as noted also in the reasons for judgment, is that much of the evidence of Ms. Mioc regarding her relationship with Mr. Qaraan was unnecessary.

[61] During the course of the trial, the evidence in relation to an equalization payment focussed on a number of discrete issues as to the valuation of specific assets or liabilities. I take into account that the parties achieved divided success in this area. For example, Mr. Qaraan was successful on the issue of the “phantom” Mercedes and he succeeded in having the value of one of his apartments at date of separation reduced by $50,000 (over the objection of Ms. Qaraan). Mr. Qaraan was also successful in having Ms. Qaraan’s claim dismissed for the value of the partly completed residence built by Ms. Qaraan, on Mr. Qaraan’s land in Jordan, after the date of separation. As set out in the reasons for judgment, Ms. Qaraan’s claim in relation to the residence in Jordan was not properly pleaded and, secondly, was without merit. Mr. Qaraan was also successful in defending Ms. Qaraan’s request that $600,000 should be “imputed” to Mr. Qaraan’s net family property on the basis that Mr. Qaraan had undisclosed cash or other assets in Dubai (or perhaps elsewhere).

[62] Ms. Qaraan was successful in having Mr. Qaraan’s deduction denied for the land he owned in Jordan at date of marriage. Ms. Qaraan was also successful in having Mr. Qaraan’s deduction for date of marriage financial assets (traceable to money Mr. Qaraan received as a result of his first wife’s death) reduced from approximately $195,000 to $75,000. This is not an exhaustive list, but it does deal with the larger amounts that were in dispute.

[63] I have reviewed Ms. Qaraan’s bill of costs in detail. In order to properly apply r. 24(8), it is necessary to determine “full recovery costs” for the period of time from the commencement of the application to the end of 2010, and it is necessary to fix costs on a full recovery basis attributable to Ms. Qaraan’s claim for spousal support for the period commencing 2011 onwards. I heed the direction of the Court of Appeal for Ontario that this is not a purely mathematical exercise and that the overriding principle is reasonableness.

[64] I fix full recovery costs as follows:

a) For the period from the commencement of the application up to the end of 2010, I fix full recovery costs at $85,000 all inclusive, and this takes into account the reduction for excluded motions and conference costs, and it also includes the $1,000 “costs in the cause order” dated January 30, 2008;

b) I fix full recovery costs in relation to Ms. Qaraan’s claim for spousal support for the period 2011 onwards at $10,000 on an all inclusive basis.

[65] The costs claimed by Ms. Qaraan for the period subsequent to the end of 2010 total $121,849.27 inclusive of disbursements and taxes.

[66] For the purpose of fixing costs, I find it reasonable to treat the costs in relation to Ms. Qaraan’s claim for spousal support for the period commencing 2011 onwards, and the costs in relation to the various property issues in respect of which there was divided success, as being incurred during the timeframe commencing after 2010.

[67] I fix the costs payable to Ms. Qaraan for the period after 2010 at $60,000 on an all inclusive basis. This amount does not include any costs in relation to Ms. Qaraan’s claim for spousal support for the period commencing 2011 onwards. This amount does take into account that Ms. Qaraan was already awarded $5,000 costs thrown away pursuant to the order of Henderson J. dated March 27, 2011. These costs were awarded because Mr. Qaraan sought, and was granted, an adjournment of the trial on the eve of trial. The bill of costs includes substantial trial preparation costs for March 20, 21 and 22, 2011 that would have been included in the “costs thrown away” order. Further, the amount of $60,000 excludes costs for motions and conferences as discussed earlier.

[68] Mr. Qaraan shall pay costs to Ms. Qaraan in the amount of $135,000 ($85,000 + $60,000 minus $10,000 owing by Ms. Qaraan to Mr. Qaraan pursuant to r. 24(8)). This amount is all inclusive. Given the facts of this case, and the spending pattern of Mr. Qaraan during this court case, I decline to defer the payment of costs. The costs are payable forthwith.

[69] I find the child support and spousal support issues accounted for 50% of the time spent in this case. Accordingly, I find that the sum of $67,500 constitutes a “support order” within the meaning of the Family Responsibility and Support Arrears Enforcement Act, 1996, and that this amount is enforceable by the Director.

ORDER

[70] For reasons set out above, an order shall issue in relation to costs and pre-judgment interest incorporating the following:

1. Mr. Qaraan and Qaraan Investments Inc. shall pay to Ms. Qaraan pre-judgment interest in the amount of $70,897.50.

2. Mr. Qaraan and Qaraan Investments Inc. shall pay to Ms. Qaraan forthwith her costs of this proceeding fixed in the amount of $135,000 inclusive of fees, assessable disbursements and taxes.

3. In relation to the costs order made in paragraph 2, the sum of $67,500 constitutes a “support order” within the meaning of the Family Responsibility and Support Arrears Enforcement Act, 1996, and is enforceable by the Director.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: April 10, 2014