Court File and Parties

COURT FILE NO.: FC-20-1952 DATE: 2024/04/29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Samar Rastkar, Applicant AND: Nadia Soltani, Respondent

BEFORE: Somji J.

COUNSEL: Jonathan Solomon, for the Applicant Ronan Blake, for the Respondent

HEARD: In Writing

Costs Endorsement

1The Respondent Ms. Soltani seeks full-recovery costs of $7,653.49 payable forthwith following her success on a motion related to the sale of the parties’ matrimonial home. The Applicant Mr. Rastkar opposes the request arguing that there was divided success, Ms. Soltani’s conduct disentitles her to costs, and alternatively, if costs are to be awarded, they should be reduced because her billings are excessive.

2The issues to be decided are is Ms. Soltani entitled to costs, and if so, what is a fair and reasonable costs award in this case?

Issue 1: Is the mother entitled to costs?

3The court has the discretion to determine to whom costs should be awarded and in what amount: Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

4Rule 24 sets out the legal framework for cost orders in family cases: Family Law Rules, O. Reg. 114/99 as am (“FLR”); Mattina v Mattina, 2018 ONCA 867 at para 9.

5The rules are designed to foster four fundamental purposes: 1) partially indemnify successful litigants; 2) encourage settlement; 3) discourage and sanction inappropriate litigant behaviour; and 4), as per r. 2(2) ensure cases are dealt with justly: Mattina at para. 10.

6The starting point is that the successful party is presumptively entitled to costs: r. 24(1). However, in assessing entitlement, judges must consider one, written offers to settle: rr. 18(14) and 24(12)(a)(iii); two, any unreasonable conduct of the successful party: r. 24(4); and three, if a party has acted in bad faith: r. 24(8).

Success

7Courts have granted costs to a party that was substantially successful, and this does not necessarily require success on all issues: Zhang v Guao, 2019 ONSC 5767; Blackwood v Nichols, 2022 ONCJ 357 at para 9. Boland v Boland 2012 ONCJ 239; Baryla v Baryla, 2019 BCCA 192.

8I disagree with Mr. Rastkar’s suggestion that there was divided success. Ms. Soltani was successful on the primary issues of the motion, namely: i) that the sale of the matrimonial home continue as per the terms agreed upon and the trial judge’s order; ii) that Ms. Soltani was not obliged as a joint tenant to accept Mr. Rastkar’s purchase offer which was well below the fair market value identified at the time; and iii) Ms. Soltani did not breach the terms of a court order or Schedule A of the parties’ listing agreement. That the court did not accede to the Ms. Soltani’s request to proceed with the sale of the matrimonial home without Mr. Rastkar’s further involvement does not undermine her substantial success on the motion.

9I find Ms. Soltani is presumptively entitled to costs, and as noted in my decision, there is nothing in her conduct that would disentitle her to a costs award.

Issue 2: What is the appropriate amount of costs that should be paid?

10Rule 24(12) requires a judge to consider the following in determining quantum:

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

i. each party’s behaviour, ii. the time spent by each party, iii. any written offers to settle, including offers that do not meet the requirements of r. 18, iv. any legal fees, including the number of lawyers and their rates, v. any expert witness fees, including the number of experts and their rates, vi. any other expenses properly paid or payable; and

(b) any other relevant matter.

11Proportionality and reasonableness are the “touchstone considerations” in fixing the amount of costs: Beaver v Hill, 2018 ONCA 840.

Offers to settle

12If a party makes an offer and obtains a court order that is “as favourable as” the offer, that party is entitled to full recovery of costs from that date: r.18(14)

13Keeping in mind that modern costs rules are designed to encourage settlement, I do not find that either party’s offer warrants favourable cost consequences. Mr. Rastkar’s offer to settle the motion was essentially a request thar Ms. Soltani accept his offer to purchase the home at $650,000 which was $150,000 below the listing price which the parties agreed to. This was not a meaningful offer to settle and fell far short of what was decided on the motion.

14Similarly, I do not find Ms. Soltani’s offer was sufficient to trigger the application of r. 18(14). Ms. Soltani offered that Mr. Rastkar withdraw his motion in exchange for no costs being paid. Her offer did not include any terms that would either encourage settlement or allow the court to measure whether the final order was more favourable. While Ms. Soltani was ultimately successful on the motion, I do not find the Applicant made a meaningful offer to warrant full recovery costs.

Conduct of the parties

15The court may issue an elevated costs award over and above partial indemnity where one party’s conduct has been unreasonable. Unreasonable conduct includes conduct that is: 1) disrespectful of other participants or the court; 2) unduly complicates the litigation; or 3) increases the costs of litigation: Harper v Smith, 2021 ONSC 3420, at para 3, citing Beaver v Hill, 2018 ONSC 3352 (“Beaver v Hill (ONSC)”), at para 51, rev’d on other grounds, 2018 ONCA 840.

16Where a party’s conduct amounts to bad faith, the court may order costs on a full recovery basis: r. 24(8) There is a difference between bad faith and unreasonable behaviour. Bad faith is a high threshold. It is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation: see: Scipione v Scipione, 2015 ONSC 5982, at para 96.

17I find that Mr. Rastkar’s conduct does not meet the high threshold of bad faith but was unreasonable conduct warranting an elevated costs award. Schedule A of the listing agreement had a clause indicating that issues arising with an owner’s purchase offer would be remitted to counsel. However, Mr. Rastkar did not try to resolve his purchase offer issues through negotiations with opposing counsel nor did his counsel seek directions from the court through a potential judicial case conference. Consideration could have been given to developing a fair process do deal with purchase offers made by either of the parties keeping in mind that joint tenants are entitled to seek the best price available on the open market.

18Instead, Mr. Rastkar filed a motion almost immediately after Ms. Soltani rejected his purchase offer and furthermore, directed the listing agent to suspend the listing pending the motion. I find Mr. Rastkar’s conduct delayed the sale of the home, unduly complicated matters, and unnecessarily increased litigations costs for both parties. Any change in the fair market value of the home resulting from the delay since last fall is a product of Mr. Rastkar’s own conduct.

Work performed and rates

19I find that while the case was important to the parties, the matter was not complex.

20Mr. Rastkar argues that Ms. Soltani’s bill of costs is excessive. Mr. Rastkar’s own counsel spent 17.1 hours resulting in total costs of $5,372. In contrast, Ms. Soltani’s legal team spent 35.6 hours, almost double, resulting in total costs of $7,653. I find that counsel for Ms. Soltani’s rate of $205/hr is reasonable for a five-year call.

21The Bill of Costs for Ms. Soltani delineates the nature of the work done on the motion such as interviewing the client, preparing affidavits, and attending for the hearing. However, in the work description, lead counsel suggests that time is spent “reviewing and revising” junior counsel’s work. It is unclear what portion of lead counsel’s work is revision and furthermore if the original work of junior counsel is already accounted for in the billings. While this may simply be an ambiguity in the Bill of Costs, Mr. Rastkar should not have to pay for potential duplication of work resulting from the mentoring of junior counsel. Consequently, I have accounted for this discrepancy by reducing Ms. Soltani’s billings by $1000 which is approximately 5 hours of work. I find the expenses claimed are otherwise reasonable and proportionate having regard for the time needed to schedule, prepare for, and attend the motion.

Conclusion

22The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para 26.

23Having considered that the mother was the successful party, the father’s unreasonable conduct, the lack of any meaningful offers to settle, complexity of the motion, the bill of costs filed, and the rates charged, I find that a costs award in the fixed amount of $5000 is fair and reasonable in this case.

Order

24Mr. Rastkar will pay Ms. Soltani costs in the fixed amount of $5000 within thirty days.

Somji J.