CITATION: Chaudhry v. Chaudhry, 2017 ONSC 6147
COURT FILE NO.: FS-16-87274-00
DATE: 20171013
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: NADIM ASGHAR CHAUDHRY – and – SAMREEN CHAUDHRY
BEFORE: Emery J.
COUNSEL: A. Strader, for the Applicant
S. Mehta, for the Respondent
HEARD: in writing
ENDORSEMENT ON COSTS
[1] The Applicant father, Nadim Chaudhry, seeks costs in the amount of $27,420.18 as he was successful in opposing the motion of the Respondent mother, Samreen Chaudhry, to move the two children to Kitchener. He obtained an order on his own motion that the children would remain in Mississauga and reside primarily with him to attend the school they have always attended for this year. Ms. Chaudhry was granted access on a week about basis, provided that she exercises that access in Mississauga.
[2] Ms. Chaudhry opposes the father’s claim for costs, arguing that the parties should bear their own costs, or alternatively, that any costs she is ordered to pay not exceed $5,000, payable in installments of $100 a month. She makes this submission on the basis of her economic circumstances, and for the reason that she brought her motion believing the order she was seeking would be in the best interests of the children.
[3] There is no dispute that Mr. Chaudhry was the successful party on the mobility issue common to both motions. The presumption that he is entitled to costs as the successful party operates in his favour as Ms. Chaudhry has not rebutted that presumption. However, the motions before the court that day requested other relief that was not argued. Mr. Chaudhry’s corresponding offer to settle encompassed those other issues in addition to the issue of where the children would start school in September.
[4] It is my view that Mr. Chaudhry is entitled to costs, but on a partial indemnity scale despite that part of the offer to settle that matches the result achieved. However, the offer to settle was not made severable and anticipates the outcome of other issues not adjudicated on that part of the motions heard by the court on August 31, 2017.
[5] I have the discretion to award costs in a proceeding or in a step in a proceeding under section 131(1) of the Courts of Justice Act. Although that discretion is exercised to determine entitlement, on what basis and for what amount, that discretion is subject to the provisions of any act or rules of court, including the Family Law Rules.
[6] The Court of Appeal has also set out general principles that the court is guided by when exercising this discretion.
[7] First and foremost among those general principles is the requirement a costs award should reflect what the court views as a fair and reasonable amount to the party paying those costs: Boucher v. Public Accountants Council of Ontario, 2004 14579 (Ont. C.A.).
[8] When deciding what is a fair and reasonable amount to award, I am guided by applicable factors in Family Law rule 24(11). I have considered those factors set out under subrules (a) (b) (c) and (d), as well as the authorities that urge the courts to exercise moderation when awarding costs in mobility cases to avoid the “winner/loser” dichotomy: see Van Rassel v. Van Rassel, 2008 CarswellOnt 6600 (SCJ), and Bridgeman v Balfour, 2009 CarswellOnt 7214 (SCJ).
[9] Although the costs decisions in the mobility context suggests that a court tread lightly, awarding no costs would not be fair to Mr. Chaudhry, and would not be reasonable under the circumstances as they apply under the Family Law Rule 24(11). Ms. Chaudhry had to know she was taking a risk by bringing her motion in the face of previous court orders. If she had the best interests of the children in mind, she did not put the necessary evidence into her materials to advance her views of how those interests would be served by moving the boys to Kitchener. In a word, she took a chance. There must be a cost when she takes a chance and it puts the children’s father to significant expense to respond.
[10] I am awarding costs to Mr. Chaudhry on the motion heard with respect to moving the boys and where they were to attend school in September 2017, fixed in the amount of $10,000, all inclusive. The Respondent Samreen Chaudhry is ordered to pay $2,500 of these costs by December 31, 2017, with the balance paid by installments of $2,500 on February 28, 2018, April 30, 2018 and June 30, 2018, respectively.
Emery J.
DATE: October 13, 2017
CITATION: Chaudhry v. Chaudhry, 2017 ONSC 6147
COURT FILE NO.: FS-16-87274-00
DATE: 20171013
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: NADIM ASGHAR CHAUDHRY – and – SAMREEN CHAUDHRY
BEFORE: Emery J.
COUNSEL: A. Strader, for the Applicant
S. Mehta, for the Respondent
ENDORSEMENT ON COSTS
Emery J.
DATE: October 13, 2017