Court File and Parties

Court File No.: FS-21-24032
Date: 2025-04-25
Ontario Superior Court of Justice

Between:
Raha Mehralian, Applicant
– and –
Michael Paul Dunmore, Respondent

Appearances:

• Anthony Macri, for the Applicant
• Michael Stangarone and Meghann Melito, for the Respondent
• Josh Hunter and Elizabeth Guilbault, for the Intervenor Attorney General of Ontario
• Fareen Jamal and Fadwa Yehia, for the Intervenor Canadian Council of Muslim Women
• Archana Medhekar, for the Intervenor Barbra Schlifer Commemorative Clinic

Heard: September 10-11, 2024
Mathen, J.

Costs Award

[1] On February 3, 2025, I dismissed a motion brought by the Applicant, Raha Mehralian (“Applicant”, “Ms. Mehralian”), in which she challenged s. 29 of the Ontario Family Law Act, R.S.O. 1990, c. F.3 (“Family Law Act”), and the judicial interpretation of s. 4 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) (“Divorce Act”) as violating s. 15 of the Canadian Charter of Rights and Freedoms (“Charter”). In that decision, I held that none of the interveners would be subject to costs. I advised the parties that, should they be unable to agree on costs, they could make submissions.

[2] I have now received their submissions.

[3] The Respondent, Michael Dunmore (“Respondent”, “Mr. Dunmore”), seeks $54,791.11 representing costs in full. The rough breakdown of those costs is approximately $34,000 in costs by Mr. Dunmore’s counsel MPLLP, and another $20,000 incurred by Juristes Power Law, a firm specializing in constitutional issues.

[4] Mr. Dunmore makes the following arguments in favour of full indemnity:

a. The decision on the merits found that the motion was, in part, a collateral attack on lower court decisions that were not appealed;
b. The decision on the merits found that the motion arguments went beyond Ms. Mehralian’s Notice of Constitutional Question;
c. The decision on the merits dismissed Ms. Mehralian’s section 15 arguments as not sufficiently grounded in the evidence; and
d. Ms. Mehralian’s counsel did not respond to an inquiry from MPLLP to discuss costs prior to making submissions.

[5] Ms. Mehralian says that the court should impose costs of no more than $10,000, because:

a. She has no ability to pay higher costs without it affecting her economic well being;
b. Any costs order would have a devastating impact on Ms. Mehralian and the parties’ child;
c. The issue before the court was novel; and
d. The Respondent’s costs are excessive.

[6] Ms. Mehralian submits, further, that there is an outstanding costs award in her favour of $50,000.

The Law

[7] Under Rule 24(3) of the Family Law Rules, O Reg 114/99, a successful party is presumptively entitled to costs.

[8] Rule 24(14) requires the court to consider: the reasonableness and proportionality of: each party’s behaviour; time spent by each party; any written offers to settle; legal fees including numbers and individual rates of lawyers; expert witness fees; other expenses or other relevant matters.

[9] The purpose of costs is to discipline parties’ choices and constrain unreasonable or wasteful behaviour.

[10] Where a plaintiff raises a novel question, that can affect the quantum of costs against them even if they are unsuccessful: Przyk v. Hamilton Retirement Group Ltd. (The Court at Rushdale), 2021 ONCA 267.

[11] Costs may not be appropriate where a case is a true “test case”: Hague v. Liberty Mutual Insurance Co., para. 4.

Analysis

[12] I find that Mr. Dunmore is entitled to a costs award. For the following reasons, however, I decline to order the amount requested:

a. While it is true that the motion decision dismissed Ms. Mehralian’s claim on several grounds, the court did not find that the motion was brought in bad faith. To the extent that Ms. Mehralian’s claim was legally unsupported, that is reflected in the outcome on the merits and in the fact that Mr. Dunmore is presumptively owed costs.

b. The issue is novel. It appears to be the first constitutional challenge, in Ontario, of the relevant provisions and jurisprudence. There is relatively little caselaw on some of the points on which Ms. Mehralian failed, such as whether, in an equality rights claim, a claimant is bound to the precise grounds of discrimination articulated in the Notice of Constitutional Question.

c. The issue is important. Courts in Ontario have noted the potential unfairness in the fact that Ontario law appears to disentitle former spouses to certain kinds of support if they are subject to a foreign divorce.

d. Consequently, the issues being advanced were significant, and not frivolous or vexatious. For clarity, I decline to treat this motion as warranting an analysis of costs thrown away.

e. A large proportion of Mr. Dunmore’s costs are owing to retaining additional constitutional counsel. I find that Ms. Mehralian makes a reasonable point that the intervention of the Attorney General of Ontario significantly alleviated the pressure that Mr. Dunmore otherwise would have faced in defending a Charter challenge.

[13] In the circumstances, I find that a costs award of $25,000 is reasonable and proportionate. This amount may cause Ms. Mehralian some hardship, but there appear to be other costs awards in her favour that are outstanding, which may help to alleviate the amount.

Order

[14] Ms. Mehralian shall pay to Mr. Dunmore costs of $25,000 inclusive of HST and disbursements.

Cheryl Mathen

Released: April 25, 2025