Court File and Parties

Court File No.: FS-21-24032 Date: 2023-02-28 Superior Court of Justice – Ontario

Between:

Raha Mehralian Applicant – and – Michael Dunmore Respondent

Counsel: Anthony Macri, for the applicant Meghan Melito, for the respondent

Heard: February 28, 2023

Before: FL Myers J.

Endorsement

[1] By decision dated February 13, 2023, reported at Mehralian v. Dunmore, 2023 ONSC 1044, the respondent succeeded in having the court recognize the validity and enforceability of the parties’ Omani divorce. The decision turned principally on the undisputed fact that the applicant chose to participate in the foreign proceeding by asserting her own basis for divorce and custody under domestic law of Oman. The applicant did not just contest the internal validity of the husband’s divorce under Omani law. She invoked and relied upon Omani law and the Omani court’s jurisdiction to try to obtain a divorce on her own grounds and custody. In the circumstances, the applicant could no longer complain about the parties’ connection to Oman or natural justice. I found that the court granted a divorce as discussed in Abraham v. Gallo, 2022 ONCA 874.

[2] The respondent seeks costs of more than $36,000 including expert disbursements of more than $12,000.

[3] I do not accept the respondent’s submission that he met or beat his offer to settle. The offer contains numerous other terms related to the upcoming trial. It is not severable. The applicant had no way to accept the offer just on the question of the validity of the divorce. Neither does it contain any offer of compromise for doing so.

[4] The question for me is what level of costs is fair and reasonable, proportional to the importance and scope of the issues between the parties, and sufficiently within the range of what the applicant ought reasonably have expected (so as not to be a surprise and an impediment to access to justice).

[5] Each side tried to use the foreign proceedings to their own advantage. The applicant was unsuccessful and presumptively ought to bear a portion of the respondent’s costs.

[6] The applicant asks me to fix the costs at $3,000 based on her assessment that costs validly charged by the respondent’s counsel to him were $16,089 all-inclusive on a full indemnity basis. She then reduces that amount by 50% to account for “partial indemnity” and then further cuts that amount by more than another 50% because of her lack of ability to pay.

[7] In this exercise, I am not assessing the appropriate fees as between the respondent and his counsel. I am looking for a fair and reasonable quantum for an unsuccessful party to pay to partially indemnify the successful party for costs in the circumstances.

[8] I do have significant concerns about the utility and reasonableness of the experts and the relevancy (or, actually, irrelevancy of the questions put to them for opinion evidence for the purposes of the motion before me).

[9] The motion was hived off from the trial because it had discrete elements and resolving it could (and did) resolve issues for the proposed trial. The materials were not very long and the legal issues were not novel or difficult. The hearing did not take very long.

[10] In light of the fact that there are substantial financial questions yet to be decided among the parties, I do not think it would be fair or apt to require the applicant to pay the costs before the outcome of the trial is known.

[11] Accordingly, I fix the costs of the motion at $10,000 all-inclusive. The applicant will not be required to pay the costs ordered until the outcome of the costs of the upcoming trial are determined. The $10,000 ordered herein may be set off against costs or any amount ordered payable by the respondent to the applicant after the trial, if any.

FL Myers J Released: February 28, 2023