2013 ONSC 765, 2013 ONSC 765

CITATION: Farhan v. Farhan, 2013 ONSC 765 COURT FILE NO.: FC-11-585 DATE: 2013/02/01 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Nadia Farhan - Applicant AND Faisal Farhan – Respondent AND Khazna Al-Shemmari – Moving Party BEFORE: Mr. Justice Timothy Minnema COUNSEL: Steven Fried, Counsel for the Moving Party Virve Georgeson, Counsel, for the Applicant and Respondent HEARD: By Written Submissions ENDORSEMENT ON COSTS [1] I delivered my decision on this motion on November 29, 2012, and regarding costs I indicated: Costs shall be payable by Faisal Farhan and Nadia Farhan to Khazna Al-Shemmari.

If the parties cannot agree on the amount they canmake written submission within 30 days, five pages maximum. [2] Ms. Al-Shemmari the moving party asks that the amount of costs be fixed on a full indemnity basis at $23,887.57 inclusiveof HST and disbursements. [3] Although my endorsement is clear that the only issue regarding costs is the amount payable by Faisal and Nadia Farhan,those parties have provided submissions seeking costs from Ms. Al-Shemmari on a full indemnity basis of $12,915.90 being fees andHST. Further, they purport to re-argue the case itself on the merits.

As such, their costs submissions were largely irrelevant and notparticularly helpful. [4] I have assessed the costs in light of Rule 24, and in particular sub-rules (1), and (4) through (11). [5] Regarding sub-rules 24(1) and (6), as noted I had already decided per the endorsement that Ms. Al-Shemmari was entirelysuccessful at the hearing and entitled to costs. [6] None of sub-rules 24(4), (7), and (9) impact on my decision. The successful party behaved reasonably throughout. Bothsides were prepared for the hearing.

While both counsel significantly underestimated the time they needed, neither ran up or wastedcosts without reasonable cause. [7] Sub-rule 24(8) says: If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. Per S.(C.) v. S.(M.), (ON SC), [2007] O.J. No. 2164 (S.C.J.) affirmed 2010 ONCA 196 , [2010] O.J. No.1064 (C.A.), bad faith behavior includes concealing information relevant to the issues or deceiving the other party or the court. Per Awadv. Dover Investments Ltd., [2010] O.J.

No. 1956 (S.C.J.), a case relied on by Faisal and Nadia Farhan, a party who abuses the courtprocess or makes unsubstantiated allegations of fraud can be liable for costs on a substantial indemnity basis. I find bad faith here withrespect to both Faisal and Nadia Farhan. There was a finding of fraud and of their making false statements to the court. The previoustwo court orders that had to be set aside were obtained by clear abuses of the court process. Their position on the motion wastantamount to alleging unsubstantiated fraud by Ms. Al-Shemmari.

Further, I find that this bad faith was in relation to the whole of thecase and the core issues to be decided, not just parts of it. As such I award costs on a full recovery basis throughout per sub-rule 24(8). [8] This leaves me to consider the factors in sub-rule 24(11) in setting the actual amount of costs. [9] In looking at sub-rule 24(11)(a), the issues in this hearing were out of the ordinary for a family law case and I find that theywere complex.

Also I find that they were important issues for the children and for the integrity of the court and its process. [10] In looking at reasonableness generally in sub-rule 24(11)(b), in my view it relates to a party’s behavior in conducting thecase. Here I find that Mr. Farhan was being unreasonable in refusing to consent to the production of the Canadian immigration records,as that information could have shortened the hearing and simplified much of the evidence.

[11] Still per sub-rule 24(11)(

b) and specifically looking at the criteria in 24(5), in weighing reasonableness the court is required toexamine any offers to settle made. Ms. Al-Shemmari submitted a formal offer between the first day of the hearing and the second day,but I find it has no bearing on my decision. It was delivered too late to trigger cost consequences per rule 18, and it required theagreement of a non-party. There was a further offer made by Ms. Al-Shemmari since my decision on the motion, namely to resolve theissue of costs at $10,000.

Given that Faisal and Nadia Farhan were claiming costs for themselves a sum greater than that, I find that thiswas a very reasonable offer and should have been accepted. Lastly, Faisal and Nadia Farhan indicate in their costs submissions that theyalso made an offer to Ms. Al-Shemmari, namely that she withdraw her motion. That of course was not accepted and I find that this offerwas unreasonable given the result. [12] Regarding sub-rule 24(11)(

c) I find that the hourly rate claimed by Mr. Fried on a full indemnity basis of $275 is reasonablefor the Ottawa area given his almost 20 years of practice. [13] Per sub-rule 24(11)(d), at first glance the hours claimed by Mr. Fried for this motion of 76.1 hours appeared to be on the highside given that it only required two part days in court. However, Ms. Georgeson in her costs submission indicated that the hours shespent on the case totaled 114.30. In reviewing the materials the most work appeared to have been expended on behalf of the movingparty. I therefore find Mr.

Fried’s time spent to be reasonable. [14] Per sub-rule 24(11)(e), I find the disbursements as claimed by Ms. Al-Shemmari of $239.50 to be reasonable. Along with theusual costs of service and filing, she lived in Kuwait and evidence originated there. [15] Regarding sub-rule 24(11)(f) (“any other relevant matter”) nothing was specifically argued. The Court is aware that in theusual family law litigation where spouses, children, and families are affected by cost orders, the court can take into account the financialsituation of the parties.

This case, however, was closer to a civil matter where the finances of the parties were not canvassed in anydetail. The costs submissions do indicate that Mr. Farhan is on a government disability pension because of a chronic kidney disease. There is no information about Nadia Farhan. The Court is also aware that Ms. Al-Shemmari is responsible for the care of the children inKuwait, and it stands to reason that any legal fees she pays to Mr. Fried affects the resources available to support them.

While theoverall means and needs of both parties have been considered to the limited extent that there is evidence available, I find that they havelittle impact as a factor in setting the costs award. [16] The court weighs the factors above guided by the overriding principle that the goal is to fix costs in a way that is fair to theparties and reasonable in the circumstances (per Murray, supra, and Katz v. Nimelman (2008), (ON SC), 54 R.F.L. (6th) 177 (Ont. S.C.J.). I have assessed the costs on a full indemnity basis, and have accepted Ms. Al-Shemmari’s numbers for the hoursspent, hourly rate, and disbursements.

I find nothing in the other factors in sub-rule 24(11) to convince me that the over-all amountclaimed is unfair or unreasonable. I therefore make an award as requested by Ms. Al-Shemmari of $23,887.57 inclusive ofdisbursements and HST. As required by sub-rule 24(8), Faisal Farhan and Nadia Farhan are to pay this award immediately. ____________________________ Mr. Justice Timothy Minnema Date: February 1, 2013 CITATION: Farhan v. Farhan, 2013 ONSC 765 COURT FILE NO.: FC-11-585 DATE: 2013/02/01

ONTARIO SUPERIOR COURT OF JUSTICE RE: Nadia Farhan, Applicant AND Faisal Farhan, Respondent AND Khazna Al-Shemmari, Moving Party BEFORE: Mr. Justice Timothy Minnema COUNSEL: Steven Fried, counsel for the Moving Party Virve Georgeson, counsel for the Applicant and Respondent ENDORSEMENT ON COSTS Mr. Justice Timothy Minnema Released: February 1, 2013