SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-12-74943-00
DATE: 20151216
RE: ANJUM NAVEED – and – ZAHIDA NAVEED
BEFORE: André J.
COUNSEL:
Abba Katz, for the Applicant
Karen Dosanjh, for the Respondent
COSTS ENDORSEMENT
[1] This endorsement follows a trial in which the main issues were spousal and child support, arrears in spousal and child support and equalization of net family property Mr. Anjum Naveed (“Mr. Naveed”) and Mrs. Zahida Naveed (“Ms. Naveed”) seek costs for the time spent preparing for the trial and the trial which took place from June 2, 2015 to June 5, 2015. Mr. Naveed seeks costs in the amount of $24,797.50 on a full recovery basis while Ms. Naveed seeks costs in the amount of $22,679.10.
FACTUAL FINDINGS
[2] The following positions of the parties and the factual findings at trial are relevant to the issue of costs.
[3] Ms. Naveed sought the following at trial:
(1) orders for spousal support and retroactive spousal support;
(2) the imputation of Mr. Naveed’s income at $87,000 and an order for spousal and child support based on that income;
(3) a finding that the value of renovations to the matrimonial home amounted to $19,000;
(4) a valuation of the matrimonial home in the amount of $690,000; and
(5) an order that Mr. Naveed make an equalization payment of approximately $25,000 to Ms. Naveed, primarily because of unexplained “cash advances” he had taken during the marriage for his personal use or as gifts for his girlfriend.
COURT FINDINGS
[4] I made the following findings that are relevant to the issue of costs:
(1) Mr. Naveed was not obligated to pay spousal support to Ms. Naveed given his payments of all the expenses of the marriage for a period of approximately 18 months following separation;
(2) Mr. Naveed’s income for support purposes was fixed at $57,000 annually;
(3) the value of renovations to the matrimonial home amounted to $52,000, rather than $19,000;
(4) the matrimonial home was valued at $770,000; and
(5) Ms. Naveed was ordered to make an equalization payment of $131,538.51 to Mr. Naveed.
[5] Ms. Naveed’s counsel submits that I ruled in her client’s favour when I concluded that, based on an annual income of $57,000, Mr. Naveed must pay child support of $1,147 per month, commencing September 1, 2015.
[6] Upon further review, I have determined that the table amount of child support, based on Mr. Naveed’s annual income, is $847.00 rather than $1,147.00. This error has created an overpayment of child support in the amount of $13,200. This amount will be added to the sum Ms. Naveed is obliged to pay Mr. Naveed to buy out his interest in the matrimonial home. Accordingly, Ms. Naveed must pay Mr. Naveed the sum of $144,738.51 to purchase his interest in the matrimonial home.
LEGAL PRINCIPLES
[7] In determining which party is entitled to costs and what quantum of costs can be considered fair and reasonable in this case, I am guided by the following provisions and cases:
(1) Rule 24(1) of the Family Law Rules, O.Reg. 114/99 (“FLR”), which provides that there is a presumption that a successful party is entitled to his or her costs.
(2) In determining costs, the court may take into account any written offer to settle, the date it was made and its terms: see FLR, Rule 18(14).
(3) Rule 24(11) of the FLR provides that in determining costs, the court should consider the following factors:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature or the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter. O. Reg. 114/99, Rule 24(11).
(4) According to Blanchard v. Walker, 2012 ONCJ 799, [2012] O.J. No. 6269, at paras. 18-21, an award of costs serves a number of functions including:
(a) indemnifying a successful party;
(b) encouraging settlement;
(c) discouraging frivolous or vexatious litigation;
(d) penalizing a party who has refused a reasonable settlement offer, or
(e) sanction behaviour that increases the duration and expense of litigation.
(5) In Fong v. Chan, 1999 2052 (ON CA), [1999] O.J. No. 4600 (Ont. C.A.), at para. 22, the appellate court determined that an award of costs basically serves three purposes, namely:
(a) to indemnify successful litigants,
(b) to encourage settlement, and
(c) to discourage and sanction inappropriate behaviour by litigants.
ANALYSIS
[8] In my view, Mr. Naveed has been substantially successful in this litigation. In determining the quantum of costs that are fair and reasonable, I take the following into consideration:
Mr. Naveed’s counsel has practiced family law for 23 years. His hourly rate of $300 is reasonable as is the amount of preparation time for the trial.
Mr. Naveed made an offer to settle on May 19, 2015, requiring Ms. Naveed to pay him $147,000 in full and final settlement of the litigation. Conversely, Ms. Naveed made an offer to settle on May 22, 2015 in which she offered to pay Mr. Naveed the sum of $114,343.39 as a full and final equalization payment. Suffice it to say that Mr. Naveed did better than this offer at trial.
The matter, while contentious, was not necessarily complex and could have been resolved short of a trial.
Neither party unnecessarily prolonged the litigation or acted in a frivolous or vexatious fashion. The calling of the evidence only required two days and an additional day for submissions.
[9] For the above reasons, I order that Ms. Naveed shall pay Mr. Naveed costs in the amount of $18,000 inclusive of disbursements, within ninety (90) days of today’s date.
André J.
DATE: December 16, 2015
COURT FILE NO.: FS-12-74943-00
DATE: 20151216
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANJUM NAVEED – and – ZAHIDA NAVEED
BEFORE: André J.
COUNSEL: Abba Katz, for the Applicant
Karen Dosanjh, for the Respondent
COSTS ENDORSEMENT
André J.
DATE: December 16, 2015