Court File and Parties
COURT FILE NO.: FS-13-78575-00 DATE: 20170407
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ADEETA MARIE KHAN – and – ASHMEED CAMILLE KHAN
BEFORE: André J.
COUNSEL: M. Rose, for the Applicant J. Connon, for the Respondent
HEARD: in chambers
COSTS ENDORSEMENT
[1] Following my decision on Mr. Ashmeed Khan’s motion for increased access to the children of the marriage, both parties have provided written submissions on the issue of costs. Counsel for Ms. Adeeta Khan seeks costs of $16,941.36 on a partial indemnity basis while Mr. Khan’s counsel seeks costs in the amount of $22,363.63 on a similar basis.
BACKGROUND FACTS
[2] Mr. and Mrs. Khan were married on August 14, 2009.
[3] The parties have two children, Razia Khan, born on December 19, 2009 and Avid Khan, who was born on March 25, 2011.
[4] Mr. and Mrs. Khan separated on June 10, 2013.
[5] Ms. Khan had custody of the children, although there was no formal court order granting her custody. On July 19, 2014, Ms. Khan reported to the police that Mr. Khan had assaulted her. He was subsequently charged with assault but was acquitted on August 8, 2016.
[6] Mr. Khan brought a motion in July 2016 for temporary parenting orders after Ms. Khan reneged on an agreement and refused him access to the children for a two-week period during that month. Mr. Khan sought the following orders relating to the children:
- the right of first refusal;
- the equal sharing of school holidays;
- the parties’ residences to remain in Brampton pending an adjudication of the issues at trial; and
- additional overnight access to the children.
[7] Ms. Khan opposed the application. Her position was that the status quo should be maintained until the trial, for which no date had been set.
[8] In my decision, I ruled in favour of Mr. Khan on the first three issues and against him on the fourth. I also ruled that in the circumstances of the case, Mr. Khan should be added as a primary emergency contact at his son’s school, that he be permitted to attend at the children’s school and daycare and that he be permitted to have telephone and Skype access to the children.
GOVERNING PRINCIPLES
[9] Rule 24 of the Family Law Rules (the “Rules”) sets out a number of factors that a court should consider in determining what quantum of costs is fair and reasonable.
[10] Rule 24(1) provides that a successful party is presumptively entitled to costs.
[11] Rule 24(11) states that in determining costs, the court should consider a number of enumerated factors including the importance, complexity or difficulty of the issues; the reasonableness or unreasonableness of each party’s behaviour; the lawyer’s rates and the time properly spent on the matter; expenses and any other relevant matter.
[12] Rule 131(1) of the Courts of Justice Act, R.S.O. 1990, c. 43, as amended, also gives a court a broad discretion to award costs in any proceeding.
ANALYSIS
[13] Mr. Khan was substantially successful on the motion. Counsel for Ms. Khan submitted that the motion was unnecessary in that her client had offered to settle some of the very issues Mr. Khan raised in his motion.
[14] Both parties exchanged offers to settle, particularly in the summer of 2016. In June 2016, Mr. Khan agreed to Ms. Khan taking the children to England to attend a wedding, whereas, Ms. Khan did not consent to Mr. Khan having the children for two weeks in the summer. Indeed, Ms. Khan only agreed to Mr. Khan having two weeks access in August 2016 after Mr. Khan filed his motion for enhanced access. I essentially concluded in my endorsement that in terms of Mr. Khan’s access to the children, Ms. Khan had been somewhat inflexible.
[15] The issues in this motion were neither complex nor difficult. They could have easily been resolved if Mr. and Mrs. Khan agreed to set aside their differences and act in their children’s best interests. Mr. Khan’s counsel was called to the bar in 1982 and her $500 hourly rate, given her expertise in family law, cannot be considered unreasonable. However, I question, given this experience and the relatively uncomplicated issues involved in this matter, the amount of time spent on preparation and litigating this matter. I also take into consideration that Mr. Khan was not successful on all the issues raised in this motion.
CONCLUSION
[16] Ms. Khan will pay costs fixed in the amount of $15,000 inclusive, to Mr. Khan within ninety (90) days of today’s date.
André J. DATE: April 7, 2017