ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-22-00029138

DATE: 20231227

RE: Golnaz Amirmoezi, Applicant

AND:

Saman Motieenia, Respondent

Elaheh Amirmoezi, Respondent

Mohsen Morshedi, Moving Non-Party

BEFORE: Justice M. Sharma

HEARD: December 27, 2023 (In writing)

COUNSEL: Adam Jaffer for Applicant, G. Amirmoezi

Eiman Sharifpour for Respondent, S. Motieenia

Eric D. Freedman for Respondent, E. Amirmoezi

Justin W. Anisman for Moving Non-Party, M. Morshedi

Costs ENDORSEMENT

[1] On November 6, 2023, I granted a motion for the release of $144,185.13, to Mr. Mohsen Morshedi, a non-party to this family proceeding, from funds held in trust in relation to proceeds of sale of a home he jointly owned with the Respondent Husband, Mr. Saman Motieenia. The Applicant Wife, Ms. Golnaz Amirmoezi and her mother, Ms. Elaheh Amirmoezi (a further Respondent) opposed this relief.

[2] As I did with my prior decision, and with no disrespect to any of the parties, I refer to them by their first names.

[3] Mohsen seeks substantial indemnity costs from a prior motion heard before Steele J. on August 11, 2022 as well as the motion before me, heard on October 19, 2023, in the total amount of $25,000. Parties agreed that the costs of the motion before Steele J. would be reserved to the motion heard by me. Mohsen identifies full indemnity costs for the motion before Steele J. at $14,650.45, and the motion before me at $13,797.20.

[4] Mohsen states he served an Offer to Settle on August 1, 2022, prior to the motion before Steele J., seeking payment of $303,787.98. He did not fair as well as his Offer to Settle, but he came close. In addition to the $144,185.13 that I ordered to be released, Steele J. ordered the release of $153,787.98 to Mohsen, totalling $297,973.11.

[5] Mohsen states he made other efforts to settle, although at no point did Saman, Golnaz or Elaheh make any settlement offers. He states that the respondents to the motion engaged in other conduct that increased his costs (e.g., demanding to inspect original documents, delays in scheduling questioning). This Court found that the arguments raised by the respondents was res judicata. He relies on authority for the proposition that substantial indemnity costs are warranted when there is a finding of res judicata: see Sabrina Homes v. 2786966 Ontario Inc., 2023 ONSC 558 at para. 57; Rosseau v. Scotia Mortgage Corporation et. al., 2013 ONSC 677 at para. 36; Hawley v. Pennington, 2012 ONSC 3671 at para 13.

[6] Saman seeks costs to be fixed against him in the amount of $2,759.44 on a partial indemnity basis in relation to the motion before me, and that no costs be ordered in relation to the motion before Steele J. This is because Saman did not make oral or written submissions at that motion. He states that he consented to the release of the requested funds to Mohsen just prior to the motion before Steele J.

[7] With respect to the motion before me, Saman states it was Golnaz and Elaheh who took unreasonable positions. He is prepared to pay one-third of Mohsen’s partial indemnity costs for this attendance ($8,278.32/3) which he states is a fair and reasonable cost order. He asks that these funds be paid out of the funds frozen and held in trust by lawyer Philip Ulrich from the proceeds of sale of 43 Viewmount Avenue, as these funds belong to Saman.

[8] Golnaz argues that if cots are ordered, the total amount for which she should pay for both motions be fixed at $5,000, payable at a rate of $100 per month. She argues that the motion before me was complex, primarily because Saman took a different position at the motion before me than he did with Steele J. She argues that this is not a case where there was bad faith – her position was consistent at the motion before Steele J. and before me. She also argues that the hourly rate of Mohsen’s counsel of $400/hour for a lawyer with 9 years experience, and that of junior counsel of $300/hour with 2 years experience, is excessive. She argues that the affidavit and factum from both motions were similar or the same. She argues that she has very limited resources, is supporting the parties’ children, and that the court should consider her financial situation when making a cost order: C.A.M. v. D.M., 2003 18880 (ON CA) at para 42.

[9] Elaheh largely agrees with the submissions of Golnaz. She says her material for the motion before me was brief. Her position at both motions was simply to recover a portion of her life savings that she had stolen from her by Saman.

Analysis

[10] The modern rules respecting costs aim to foster the following four fundamental purposes: (a) to partially indemnify successful litigants for the cost of litigation; (b) to encourage settlement; (c) to discourage and sanction inappropriate behaviour by litigants; and (d) to ensure that cases are dealt with justly in accordance with the primary objective of the Family Law Rules set out in Rule 2(2). See: Ryan v. McGregor (1926), 1925 460 (ON CA), 58 O.L.R. 213 (Ont. C.A.), at p. 216; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (S.C.C.); Fong v. Chan, 1999 2052 (ON CA), 1999 CarswellOnt 3955, 181 D.L.R. (4th) 614, 46 O.R. (3d) 330 (C.A.); Serra v. Serra, 2009 ONCA 395 (C.A.) and Mattina v. Mattina, 2018 ONCA 867 (C.A.)).

[11] When fixing costs, “the costs award should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful party.” See Zesta Engineering Ltd. v. Cloutier, 2022 25577 (ON CA) at para 4, cited with approval in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA) at para 24.

[12] This is not a case where full or substantial indemnity costs should be awarded against Golnaz and Elaheh. While the positions they took at the motions were unreasonable since they had no legal entitlement to Mohsen’s share of the net proceeds of sale, I cannot conclude that it amounted to bad faith.

[13] In contrast, the position taken by Saman does support a cost award approaching substantial indemnity. He conceded to Mohsen’s position at the motion before Steele J., but then took an entirely different position at the motion before me. The bulk of the issues at the motion before me was due to the unreasonable and changed position of Saman. This dispute was largely as between Mohsen and Saman, and Saman should bear proportionate cost liability.

[14] I also agree that the quantum of costs sought by Mohsen is on the high end for motions of this nature, although I commend his counsel for the quality of the material filed. In my view, costs that an unsuccessful litigant should reasonably be expected to pay for two motions of this nature, even on a substantial indemnity basis, are closer in the range of $15,000 to $20,000, rather than the $25,000 in substantial indemnity costs that Mohsen seeks.

[15] Golnaz should be entitled to financial relief due to her limited resources and childcare responsibilities. Elaheh should be responsible for costs proportionate to her role in both motions, which was minor.

[16] Having considered the above and the factors under rule 24 of the Family Law Rules, I make the following cost order from the motion before Steele J. and the motion before me:

a. Saman shall pay costs to Mohsen fixed in the amount of $10,000, which shall be paid forthwith by Saman or, if not paid within 14 days from the release of this Costs endorsement, shall be paid from Saman’s funds held frozen by lawyer Philip Ulrich.

b. Golnaz and Elaheh shall have joint and several liability to pay costs to Mohsen, fixed in the amount of $7,000, which funds shall be paid forthwith from Saman’s funds held frozen by lawyer Philip Ulrich. As a result, Golnaz and Elaheh shall owe a debt to Saman, fixed in the amount of $7,000, which shall be calculated and distributed within the calculation of equalization payment owing as between Saman and Golnaz within this family litigation.

Justice M. Sharma

Date: December 27, 2023