SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC -13-2532

DATE: 2014/01/22

RE: Mazin Sheikh, Applicant

AND

Kiran Babar, Respondent

BEFORE: Mr. Justice Robert N. Beaudoin

COUNSEL:
Raja Irfan Aziz, Counsel for Applicant
Kevin Doyle, Counsel for the Respondent

HEARD: By Written Submissions

ENDORSEMENT On costs

[1] I heard this motion on December 20, 2013. The only issue was whether the child was habitually resident in the Province of Ontario at the commencement of the application and whether Ontario courts have jurisdiction. I accepted the Mother’s position that the child was habitually resident in the Province of Quebec at the time of the application and that the Quebec courts had jurisdiction over the issues of custody and access to the child. In short, the Mother was completely successful.

[2] In accordance with Rule 24(1) of the Family Law Rules, O. Reg. 114/99 (“Rules”), there is a presumption that the successful party is entitled to costs. Pursuant to Rule 24(11) of the Rules, the Court must consider the following factors:

a) the importance and complexity of the issues;

b) the reasonableness or unreasonableness of each parties’ behaviour;

c) lawyers’ rates;

d) the time properly spent on the case, including conversations between the lawyer and the party or witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument and preparation signature of the order;

e) expenses properly paid; and

f) any other relevant matter.

[3] The Mother’s counsel points out that this was a single issue motion that did not raise overly complex issues. The main facts relating to the Mother and child’s departure from Montreal were not seriously contested. The Mother’s counsel admits that neither party acted unreasonably. The questions of jurisdiction, habitual residence and of acquiescence due to delay are not always obvious and often require court intervention because of the nature of the issue involved. This was not a case that was conducive to the making of offers and none were made. The Respondent Mother’s counsel seeks costs on a partial indemnity rate at $4,130.00 and on a substantial indemnity rate in the amount of $5,910.00.

[4] The Applicant maintains that the matter was resolved at an early stage and the successful party did not file an Answer and needed only to file one affidavit. He characterizes the issue as complex, difficult and important. He submits that the financial condition of the Applicant Father is very weak as he is also is the custodial parent of an older daughter and is supporting her. The Applicant Father is in receipt of Employment Insurance benefits which will terminate in January 2014 and he has no other income.

[5] On the other hand, he accuses the Respondent Mother of unreasonable behaviour. He notes that she did not file an Answer after she had been served with the application on October 26, 2013. He claims that the Applicant Father acted in good faith and could not decide on his own the question of jurisdiction especially since no other application was pending at the time of the commencement of his application. He adds that the Respondent Mother had not requested costs in her affidavit nor was there any mention of costs in her counsel’s written Factum. He concludes that the costs sought by the Respondent Mother are not reasonable.

Conclusion

[6] The Respondent Mother was the successful party and there is nothing to displace the presumption set out in Rule 24(1) of the Rules. Having said that, the matter was argued in one hour and this was an issue that required court intervention. This is not a case where either party acted in bad faith. The Applicant father’s allegations of bad faith are without merit. I am not satisfied that the Applicant Father is unable to work nor that he does not have the means to satisfy a modest costs award. For these reasons, I order him to pay the Respondent Mother’s costs which I fix in the amount of $1,500.00 which sum is payable forthwith.

Mr. Justice Robert N. Beaudoin

Date: January 22, 2014

COURT FILE NO.: FC -13-2532

DATE: 2013/01/22

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Mazin Sheikh, Applicant

AND

Kiran Babar, Respondent

BEFORE: Mr. Justice Robert N. Beaudoin

COUNSEL:
Raja Irfan Aziz, Counsel for the Applicant
Kevin Doyle, Counsel for the Respondent

ENDORSEMENT on costs

Beaudoin J.

Released: January 22, 2014