CITATION: Yar v. Yar, 2015 ONSC 588

HAMILTON COURT FILE NO.: D705/08

DATE: 2015/04/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

QASIM ABRAHAM YAR

Jerry J. Chaimovitz, for the Applicant

Applicant

• and -

ROYA FATEMEH YAR

Thomas G. Bastedo and Jennifer Swan, for the Respondent

Respondent

The Honourable Madam Justice L.M. Walters

COSTS ENDORSEMENT

1The judgment of the court was released on January 19, 2015. I invited counsel to agree on costs and, if that proved impossible, I ordered written submissions to be filed. I have now had the opportunity to review those submissions.

2In ordering a new trial, the Ontario Court of Appeal decided that costs of the first trial were also to be determined by the Justice hearing the second trial.

3The applicant seeks his costs of this trial and the first trial on a full indemnity basis in the amount of $525,978.88.

4The respondent asks for costs of the first trial or, alternatively, that each party be responsible to pay their own costs. With respect to the second trial, the respondent asks that no costs be paid by either party, or, in the alternative, the respondent pay partial indemnity costs of $80,000.00 inclusive of HST.

5The first trial before Festeryga J. lasted 21 days. It is my understanding that the same issues raised in the first trial were still outstanding by the time of the second trial, except for the issues of custody and access. On appeal, the court found that the trial judge’s failure to provide adequate reasons for his decision necessitated a new trial. The Court of Appeal ordered no costs on the appeal.

6It is clear that the failure of this first trial was not occasioned by the fault of either party or their counsel. For this reason alone, I decline to order any costs of the first trial.

7Moreover, there was some divided success before Festeryga J. Portions of the judgment were not appealed. I am satisfied that each party shall be responsible for their costs of the first trial.

8I now turn to the trial before me.

9As set out in my judgment, there were four issues to be determined by the court, the validity of the Mahr, child support, equalization and spousal support. The applicant was successful in having the respondent’s claim for enforcement of the Mahr and spousal support dismissed. With respect to child support, the court attributed more income to the applicant for the purposes of determining child support. Support was ordered on the full Guideline amount, but s. 7 expenses were shared equally despite the applicant’s higher income.

10Qasim’s attempt to establish that Roya had money in Iran was not accepted. Although he was awarded an equalization payment, it was less than the amount claimed. Still, the applicant was substantially more successful than the respondent.

11The applicant’s offer to settle was more than reasonable in all of the circumstances and, at the end of the day, the net result is very similar to what the court ultimately ordered. Roya’s offer to settle was significantly higher than the award of the court.

12In my view, both parties unnecessarily lengthened the trial. For example, Qasim spent an inordinate amount of time attempting to establish the existence of an Iranian bank account.

13Roya wasted valuable time attempting to establish the applicant’s purposeful under-employment. As well, the respondent’s failure to provide full and frank financial disclosure unduly complicated matters and prolonged the proceedings.

14This was a re-trial. Much of the same evidence was called and it is reasonable to assume that the time and preparation spent in that first trial was not completely wasted and should have reduced the preparation time necessary for the second trial.

15Rule 24 of the Family Law Rules creates a presumption that a successful party is entitled to his or her costs, except in certain specific cases. Rule 24(11) sets out the factors the court is to consider in determining an appropriate cost award.

16It is important to remember that when the court is fixing costs, it is not undertaking a simple mechanical exercise. Such an exercise would be inappropriate and, in fact, undesirable. Always when fixing costs, the objective is to fix an amount that is fair and reasonable in all the circumstances for the unsuccessful party to pay.

17After considering those factors set out in Rule 24, along with the provisions of s. 131(1) of the Courts of Justice Act, I am satisfied that the applicant is entitled to some costs of the trial.

18On a partial indemnity basis, the applicant’s costs shall be fixed in the amount of $150,000.00 inclusive of HST and disbursements.

Walters J.