Court File and Parties

Newmarket Court File No.: FC-22-1347-00 Date: 2023-11-16 Superior Court of Justice – Ontario – Family Court

Re: Jamila Vadsaria, Applicant -and- Jamil Kassam, Respondent

Before: The Honourable Madam Justice S.E. Healey

Counsel: Jeff Rechtshaffen, for the Applicant David Nuri, for the Respondent

Heard: In Writing

Costs Endorsement

[1] The applicant brought a motion for temporary child and spousal support that was heard by this court on August 30, 2023. She asked the court to impute income to the respondent in the amount of $537,628 (USD) converted to Canadian funds and grossed up. She sought a child support payment in the amount of $17,533 per month, and a spousal support payment in the amount of $14,250 per month. She also sought a retroactive award for the period January 1, 2022 to August 31, 2023 under both categories of support.

[2] The outcome of the motion was: income imputed at $440,862 CAD; commencing October 1, 2023, child support to be paid in the amount of $5,567 monthly and spousal support in the amount of $6,425 monthly; and retroactive support to be paid from the beginning of 2023 in those same amounts less credit for payments made during that period.

[3] As the successful party, the applicant now seeks costs in the amount of $27,400 inclusive of HST.

[4] In setting the costs of this motion, the court must consider the factors outlined in r. 24(12) of the Family Law Rules, O. Reg. 114/99.

[5] The first is the reasonableness and proportionality of each of the parties’ behaviour as it relates to the importance and complexity of the issues in the motion. Ensuring financial security for a family following marital breakdown is an extremely important issue. There is no debate in my mind that the applicant needed to bring this motion, as the respondent has consistently underpaid support while inconsistently paying that inadequate amount of either $2,000 or $3,000. The applicant was at the mercy of the respondent’s unpredictability in terms of what was paid, and when. There was also little hope that the respondent would reveal the truth about his income. As stated at para. 39 of the endorsement, “[t]he evidence does not permit an understanding of the respondent’s true income, because he has failed to reveal it.”

[6] The applicant and her lawyer were required to go to added expense and trouble to find documentary support to assist in showing the respondent’s income and to dispute his claims about his ownership of various businesses. A judicial determination was necessary. This is the most significant factor weighing in favour of the amount of costs to require the respondent to pay on this motion.

[7] The next is the time spent by each party addressing those issues. Mr. Rechtshaffen spent 31.4 hours on the motion. He has 30 years of experience. His associate, who was called to the bar in June 2023, spent an additional 16 hours. Mr. Rechtshaffen’s hourly rate is $595, and Mr. Davis, the associate, is billed at $350 per hour.

[8] The respondent’s counsel Mr. Nuri points out several problems with the evidence filed by the applicant to support costs. First, he submits that the individual dockets in the applicant’s Bill of Costs add up to $24,247.50 – not $27,400.25. He does not say whether he has taken HST into account; by my calculation, that accounts for the difference.

[9] He also objects to the rate charged by Mr. Davis, given that he is a very new call. I agree and will apply a more modest hourly rate of $225.

[10] Mr. Nuri also objects to the amount of evidence filed in the primary affidavit, as it was not double spaced. He did not raise any objection at the time of the argument and so it is not germane at this point. He also argues that it was a waste of court resources to go beyond the one-hour limit for this motion. It was the court’s decision to do so, only made possible because of the briefness of the other matters on the motion list. As I indicated to counsel from the start, it appeared to be a long motion, both counsel had filed a factum or statement of law – at that point Mr. Nuri could have made a request to have it adjourned to a long motion date and at that time I would have entertained the points that he is now making. It was necessary to look beyond the affidavits because the respondent’s unreasonable position with respect to his income necessitated more in-depth analysis of earlier financial statements. I would have preferred not to have done so on a motion for temporary support, but the respondent’s evidence of his income was simply unreliable.

[11] Finally, Mr. Nuri disputes that any additional time or effort was undertaken by Mr. Rechtshaffen to research the respondent’s US assets. He argues that only one docket reflects such work, and so could not have pushed the fees up to $27,400.25.

[12] I do not agree with this argument. Most of the dockets do not contain a detailed description of the work done. The evidence filed on the motion is the only proof needed of the extra efforts that were made by the applicant and her counsel to disprove the respondent’s assertions about his US assets and income. It is obvious to me that considerable effort was made. This evidence was not superfluous or unnecessary; it demonstrated that the respondent’s evidence was not credible.

[13] There were written offers to settle from both. I agree with Mr. Nuri that the applicant did not do as well as or better than her settlement offer, either on the retroactive issue or the quantum of ongoing support. But she came very close, much closer than the respondent. The respondent was ultimately ordered to pay combined child and spousal support in the sum of $11,992 - just $508 less than the total combined support that was proposed by the applicant in her offer dated August 2, 2023. The respondent’s offer was delivered in June 2023, and offered no retroactive support, ongoing child support of $2,437 per month, and spousal support of $502 per month.

[14] The respondent submits that his reasonable expectation of what to pay as the unsuccessful party is $12,509.10 on a partial indemnity basis, as reflected in his Bill of Costs. The respondent’s actual costs for the motion, at Mr. Nuri’s hourly rate of $500, was $20,848.50.

[15] The applicant’s actual costs were $27,400. On the partial rate of 60% used by Mr. Nuri, this comes to $16,440. Adjusting Mr. Davis’ rate down to $225 results in a further reduction of $1,192.50, or $15,247.50. In other words, the parties are less than $3,000 apart on a partial rate.

[16] The overall objective is to fix an amount of costs that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances of the case, rather than to fix an amount based on the actual costs incurred by the successful litigant: see: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), at para. 26; and, Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.), at para. 4.

[17] Taking into account the respondent’s unreasonable conduct in not providing the income disclosure necessary to support his new, post-separation assertions about his role in the hotel companies, the additional steps taken by the applicant and her counsel to find evidence that shed much doubt on the respondent’s financial assertions, the significant underpayment of child and spousal support at least since January 2023, and the offers made compared to the result, this is not a motion for which an award on a partial rate is appropriate. The applicant should be compensated for more of her legal fees in all of the circumstances.

[18] Stepping back and considering what is fair, proportionate, and reasonable for the responding party to pay, I set costs of this motion at $20,000.

[19] This court orders that the respondent shall pay costs of the motion to the applicant in the amount of $20,000 inclusive of HST and payable in 30 days.

Healey J. Released: November 16, 2023