Court File and Parties

COURT FILE NO.: FS-15-921 DATE: 2016-05-31 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Vaibhav Mehta, Applicant AND: Hiral Gandhi, Respondent

Counsel: Faryal Rashid, Counsel for the Applicant Iain Sneddon, Counsel for the Respondent

HEARD: April 6, 2016

Supplementary Endorsement Re: Costs

THE HONOURABLE MR. JUSTICE D.J. GORDON

[1] In my reasons for decision, released April 12, 2016, I invited written submissions on the issue of costs.

[2] In this custody case, I concluded the court in India had sole jurisdiction and, hence, the motion and application of Mr. Mehta were dismissed. Mr. Sneddon, counsel for Ms. Gandhi, now seeks a cost award of $15,000. Ms. Rashid, counsel for Mr. Mehta submits that each party should pay their own costs.

[3] A successful party is presumptively entitled to a cost award, subject to the Rule 24 factors and other relevant directions: see: Berta v. Berta, 2015 ONCA 918, at para. 94. Here, the issues were important and complex. The cost claim is a reasonable amount in that Ms. Rashid reports her client’s costs to be $12,134.23. The dispute on costs is with the submission Ms. Gandhi has acted unreasonably.

[4] Ms. Rashid relies on Guillemaud v. Geurts, 2015 ONSC 5640, where costs were denied as a result of the successful party absconding with the child from Alberta to Ontario. I agree with the principle; however, the facts in the case at bar differ.

[5] The parties and the child were in India to visit family members. Father returned to Canada in April 2015. Mother and child remained behind. I concluded Ms. Gandhi decided to separate by May 19, 2015 and that her decision was communicated to Mr. Mehta on July 15, 2015. Mr. Mehta did not challenge her decision until commencing this case on November 19, 2015. I also concluded Mr. Mehta either provided consent, implied consent or acquiescence to Ms. Gandhi and the child remaining in India. Hence, there is no basis to argue Ms. Gandhi acted unreasonably.

[6] Ms. Rashid also submits that Mr. Mehta has been frustrated by Ms. Gandhi in his attempts to arrange access by Skype and with filing a FIR in India. There was no evidence on the former and I was not persuaded any charge had been laid, only a person qualified on the law of India being able to opine on such a matter. Similarly, there is no basis to suggest Ms. Gandhi acted unreasonably on these matters.

[7] As previously stated, Mr. Sneddon seeks a cost award of $15,000. He reports the actual cost to his client being $19,949.18, additional expense resulting from the fact Ms. Gandhi resided in India.

[8] In all of the circumstances, I conclude a cost award in favour of Ms. Gandhi in the amount of $15,000 is fair and reasonable. I so order.

D.J. Gordon J. Released: May 31, 2016

Reasons for Decision (Previous)

COURT FILE NO.: FS-15-921 DATE: 2016-04-12

BETWEEN: Vaibhav Mehta, Applicant AND: Hiral Gandhi, Respondent

REASONS FOR DECISION D.J. Gordon J. Released: April 12, 2016 lr