Court File and Parties
Court File No.: FS-15-83320-0000 Date: 2023 03 07 Ontario Superior Court of Justice
BETWEEN:
Sara Fatahi-Ghandehari Applicant
Self-Represented, Assisted by: R. Scocco
- and -
Stewart Wilson Respondent
Self-Represented, Assisted by: S. Chhina
Elizabeth Wilson Counsel: K. Lewis, for Elizabeth Wilson
R. Watson, for the Braidmore parties (not appearing)
HEARD: In Writing
Costs Endorsement
Lemay J
[1] I am continuing to case-manage this matter towards a resolution. One of the issues that remains to be resolved is the failure of the Respondent, Mr. Stewart Wilson, to pay costs awards owing by him.
[2] In my endorsement of February 13th, 2023, I invited Ms. Fatahi-Ghandehari to submit a one page letter “outlining what costs orders have not been paid” by February 17th, 2023. The letter was to outline the date of the Order and the amount of the costs that had not been paid. I invited Mr. Wilson to provide his response to this letter by February 24th, 2023. Neither party complied with my directions.
[3] I start with the letter provided by Ms. Fatahi-Ghandehari. The table that Ms. Fatahi-Ghandehari provides includes the equalization payment and calculates post-judgment interest. My directions were to deal with the costs only. This addition makes the consideration of these issues more difficult for the Court. I also note that Ms. Fatahi-Ghandehari’s letter provides submissions on a number of issues including on the merits of the claims. These submissions were not requested.
[4] This brings me to Mr. Wilson’s letter. It was to be served and filed on February 24th, 2023. It was not provided until March 1st, 2023 and was only provided after I released an endorsement observing that I had not received the submissions and that I would be moving to make a decision without the submissions.
The Actual Costs Orders Outstanding
[5] Ms. Fatahi-Ghandehari provides a list of outstanding costs awards. Other than the Court of Appeal costs, there was no dispute by Mr. Wilson that these Orders were owing and unpaid. To summarize, those orders (inclusive of HST and disbursements) are as follows:
a) Costs of the undefended trial dated May 19th, 2021 in the sum of $25,151.31. This amount is incorrectly recorded on Ms. Fatahi-Ghandehari’s chart as $25,191.31.
b) Costs of the motion on the matrimonial contract issue dated July 7th, 2021 in the sum of $2,316.50. This amount is incorrectly recorded on Ms. Fatahi-Ghandehari’s chart as $2,361.50.
c) Costs of the proceeding involving the Law Society in the sum of $12,500.00. this award is dated October 7th, 2022. This amount is incorrectly recorded on Ms. Fatahi-Ghandehari’s chart as $12,580.60.
d) Costs on account of the Rule 60 motion in the sum of $14,175.85. This award is dated December 1st, 2022
e) Costs on account of the interest owing on previous costs awards in the sum of $11,468.14. This award is dated December 1st, 2022.
[6] Counsel for Ms. Fatahi-Ghandehari has also claimed for costs relating to a December 7th, 2022 endorsement. I am not clear as to what those costs would be for, so I am declining to require Mr. Wilson to pay those costs. That issue can be raised at the case conference on March 28th, 2023.
[7] In terms of the interest on costs, I dealt with that issue in my December 1st, 2022 decision. Interest is payable on the costs amounts. Indeed, the amount owing from December 1st, 2022 decision was an interest payment on previous costs awards. As a result, the interest calculated by Ms. Fatahi-Ghandehari of $1,205.42 (excluding the interest on the Court of Appeal’s costs awards and the one award I am not dealing with at this point) is also payable by Mr. Wilson.
[8] In terms of the equalization payment, I would note that there are proceeds from the sale of a car that have been paid into Court. Those amounts, when paid out of Court, would be a deduction to the equalization payment owing. In any event, I had not asked the parties to address unpaid amounts on the merits of the case.
Merits of the Submissions
[9] The parties’ submissions raise two issues for me to consider:
a) The costs of Court of Appeal hearings.
b) Where should the costs be paid to.
[10] I will deal with each issue in turn.
Costs of Court of Appeal Appearances
[11] Ms. Fatahi-Ghandehari seeks to collect costs from her appearance before the Court of Appeal on May 27th, 2022. Similarly, Mr. Wilson seeks to set-off the costs owing from a costs award that he received in the Court of Appeal on April 5th, 2016. Ms. Fatahi-Ghandehari opposes the payment of any costs to Mr. Wilson on account of the Court of Appeal decision as he has allegedly sold his rights in that action to his mother, Elizabeth Wilson.
[12] Neither party provided me with any case-law to suggest that I can enforce a decision on costs of the Court of Appeal. As a result, I decline to do so and am making no orders in respect of either party on this point. This is an issue that can be revisited at the case conference on March 28th, 2023. I would observe to the parties that the amounts of the two costs awards appear to be approximately the same.
Payment of Costs
[13] Ms. Fatahi-Ghandehari seeks to have the costs made payable directly to her by way of a bank draft or certified cheque. Mr. Wilson asks that the costs be payable to Ms. Fatahi-Ghandehari’s lawyers in trust.
[14] This has been a very contentious case. I am of the view that the payment of funds between the parties should be managed through third parties, with a payment trail that is traceable. As a result, I am of the view that the payment is to be made to Ms. Fatahi-Ghandehari’s lawyers in trust rather than to her directly.
[15] Ms. Fatahi-Ghandehari is to designate a lawyer to receive the funds in their trust account and advise Mr. Wilson and Mr. Chhina of the identity of that person by 4:30 p.m. on Wednesday, March 8th, 2023. This designation is to be made in writing and I am to be copied on it. The costs are to be paid by electronic transfer or certified cheque to the identified counsel by 4:30 p.m. on March 10th, 2023.
Conclusion and Orders
[16] For the foregoing reasons, I order as follows:
a) Mr. Wilson is to pay Ms. Fatahi-Ghandehari the sum of $79,171.80
b) Mr. Wilson is to pay Ms. Fatahi-Ghandehari the sum of $1,205.42 on account of the interest on costs.
c) Ms. Fatahi-Ghandehari is to identify a counsel to receive the monies in trust for her by 4:30 p.m. on Wednesday March 8th, 2023.
d) Mr. Wilson is to pay the amounts set out in paragraphs a and b to the identified counsel by no later than 4:30 p.m. on Friday, March 10th, 2023.
e) Given that both parties have failed to properly follow my instructions, there will be no costs for these submissions.
f) Any other outstanding issues relating to costs may be discussed at the case conference on March 28th, 2023.
Lemay J