Superior Court of Justice - Ontario

Citation: Golchoobian v. Vaghei, 2015 ONSC 3838 Court File No.: FS-14-00395074 Date: 2015-06-15

Re: Hanieh Golchoobian, Applicant And: Alireza Vaghei, Respondent

Before: Kiteley J.

Counsel: Golnaz Sara Simaei, for the Applicant Poroshad Mahdi, for the Respondent

Heard: June 15, 2015

ENDORSEMENT AS TO COSTS

[1] This is a ruling as to costs relating to a motion returnable September 25, 2014, an urgent motion returnable on September 30, 2014, motions returnable October 23, 2014, January 5, 2015, questioning of the Respondent on January 16, 2015 and a motion returnable January 29, 2015. In addition to several handwritten endorsements, in a decision released December 19, 2014[^1] I reserved costs and in the decision released March 20, 2015[^2] I awarded costs to the Applicant on a full indemnity basis.

[2] In her written submissions, counsel for the Applicant asks for fees in the amount of $45,930 plus HST in the amount of $5,970.90 and disbursements in the amount of $3,213.13 for a total of $55,114.03.

[3] Counsel for the Respondent takes the position that the offers to settle by the Applicant did not deal with the issue of breach of solicitor-client privilege; that the bill of costs includes services rendered in respect of the part of the motions dealing with the Ergonomics Clinic and for other unrelated services including attending at 393 Mediate; that the charges for services rendered in connection with preparation for and attendance at the motions are excessive; and that the Respondent does not have the ability to pay. She proposed that the costs be set at $20,000 and that they be paid out of the proceeds of sale of the matrimonial home in which the Applicant resides.

[4] I turn to the factors relevant to setting the amount of costs as listed in rule 24(11) of the Family Law Rules. The motions dealing with solicitor client privilege were very important and, given that one aspect of the motion addressed the role the Respondent's former solicitor played, and the other aspect addressed the role of the Respondent, the motions were complex. The issues were difficult in that there was a considerable volume of evidence and no prior jurisprudence on the circumstances which arose in this case.

[5] The findings I made which were summarized in paragraph 12 of the later endorsement make it apparent that the behaviour of the Respondent was unreasonable. The position that was persistently pursued by the Applicant was vindicated.

[6] Ms. Simaei was called to the Ontario Bar in 2008 and her hourly rate is $300.00 which is reasonable in these circumstances.

[7] The multiple attendances necessitated more preparation for which the Applicant should be reimbursed. I do agree with Ms. Mahdi that some of the services rendered were not related to the motions with respect to solicitor client privilege, such as the mediation. But the discount for those unrelated services will be a modest 15%.

[8] All of the disbursements were properly incurred and paid and arose largely out of translating audio tapes into English and providing interpretation for the Respondent's questioning. Counsel for the Respondent does not challenge the disbursements.

[9] I agree with Ms. Mahdi that the Applicant's offers to settle do not have an impact because they were focused on matters other than the key issue of breach of solicitor client privilege which was, understandably an all or nothing proposition and not one amenable to resolution.

[10] "Any other relevant matter" in rule 24(11) includes the proposition that the successful party should be indemnified in cases where the court wishes to express disapproval of the conduct of the unsuccessful party.[^3] I have expressed such disapproval by awarding full indemnity costs. The amount must nonetheless be reasonable given the importance, complexity and difficulty of the issues.

[11] On the basis of the foregoing, I reduce the fees by 15% or by $6,889.50 and reduce the HST by 15% or $895.63 leaving a total of fees in the amount of $39,040.50 and of HST of $5,075.27 along with disbursements of $3,213.13 for a grand total of $47,328.90.

[12] As for the terms of payment, Ms. Mahdi noted in her submissions that the Respondent emigrated to Canada in July 2008 and is 57 years old and he lives with his son, daughter and granddaughter in a small apartment. The family lives off his daughter's savings. He does not work. He formerly participated in the business known as the Ergonomics Clinics which the Applicant has wound down. He has limited means with his main asset in Canada being the matrimonial home, currently occupied by the Applicant. The submissions indicate that he owns 50% of a small condominium with his sister in Iran and agricultural land in Iran, which is not very expensive. The submissions indicate that two of his properties in Iran have already been seized to satisfy or secure the Applicant's Mehrieh claim. As indicated above, Ms. Mahdi proposed that the costs be paid from the final property settlement or from his share of the proceeds of sale of the matrimonial home.

[13] There is no evidence before me as to those submissions relating to the Respondent's financial circumstances. I am aware from my review of the evidence filed on the motions that there is considerable conflict between the Applicant and the Respondent as to the ownership and value of property both in Canada and in Iran. In the absence of evidence as to his impecuniosity that would impact the amount of costs or the payment date, given the circumstances that gave rise to this series of attendances and the importance of communicating disapproval of the conduct of the Respondent, there must be an immediate cost consequence. These motions were originally returnable on September 25, 2014, more than 8 months ago. The Respondent managed to retain counsel throughout most of the attendances. It is only reasonable that he be required to make a payment soon and that the Applicant not be put in the position of having to sell the matrimonial home to recover the substantial costs to which she has been found entitled.

ORDER TO GO AS FOLLOWS:

[14] The Respondent shall pay to the Applicant costs of the motions listed in paragraph 1 above in the amount of $47,328.90 (including fees, disbursements and HST) no later than July 17, 2015.

Kiteley J.

Date: June 15, 2015

[^1]: 2014 ONSC 7370 [^2]: 2015 ONSC 1840 [^3]: Jahn-Cartwright v. Cartwright 2010 ONSC 2263 at para. 54 quoting from Perri v. Thind (2009) 2009 CanLII 34977 (ON SC), 98 O.R. (3d) 74 (Ont. S.C.J.)