Court File and Parties
COURT FILE NO.: F1068/08 DATE: 2016-09-01 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ALIYA FARRUKH Applicant – and – CHAUDHRY FARRUKH AMIN Respondent
Counsel: Elizabeth Porter, Counsel for the Applicant Michael Mahon, Counsel for the Respondent
Costs Judgment
WHITTEN J.
[1]
Background
On the 12th of July, 2016 this court found that this Ontario Court had jurisdiction over the collateral relief matters sought by the applicant; mainly, child support, spousal support and equalization.
2The court found as facts; that given the time spent by this immigrant couple, that Ontario was their “habitual residence”, the former matrimonial home located in Ontario was sold during the time that the couple lived for simply two years in Saskatchewan, the proceeds of that matrimonial home were dissipated by the respondent in Saskatchewan without any regard to the equalization rights of the applicant who had returned to Ontario with the youngest child and was domiciled in this province as of July 2013, and the proceedings of the parties were commenced within days of each other, the application of the applicant was more fulsome in that it dealt with collateral relief, the respondent in contrast simply dealt with divorce. He never directed or addressed any of the collateral relief issues in his Saskatchewan pleadings.
3The court commented at the time of the judgment that to find that Saskatchewan was the jurisdiction to try these matters would be to grant a “license for mischief” on the part of a party who seeks to make it difficult for his impoverished publicly aided spouse to litigate the collateral issues.
4Obviously a determination of jurisdiction is not a pro forma exercise; it can have significant economic repercussions for a party. Here a mother and child in Ontario, the mother not receiving one cent from the sale of the matrimonial home, would have been significantly disadvantaged by having to litigate this matter in Saskatchewan.
[5]
Costs
On the questions of costs, one recognizes that it is within the discretion of the presiding jurist. As with all discretions, it is to be exercised with fairness and with an eye to the behaviour of the parties. The latter being pertinent to the duration and necessity for proceedings. A party who thwarts or hinders the other party’s “access to justice” should pay for the inconvenience and the resources consumed in that pursuit. To claim as the respondent does that he will be economically disadvantaged by trying this matter in Ontario, after he has dissipated what was a family asset in Ontario is hypocritical to say the least. The total lack of any response by the respondent to the request for collateral relief reinforces that sense of hypocrisy. The respondent played “hardball” with the jurisdiction issue, probably hoping that he would win by attrition.
6The applicant shall have her costs. The costs presented appear to be reasonable in terms of; the hourly rate, the time dissipated, and the disbursements incurred.
[7]
Disposition
For all of the above reasons, the respondent shall pay $2,643.33 inclusive of disbursements, forthwith to the applicant.
WHITTEN, J. Released: September 1, 2016