2013 ONSC 6662, 2013 ONSC 6662

CITATION : Harit v. Harit, 2013 ONSC 6662 COURT FILE NO.: 12-3056 DATE: 2013/10/29 SUPERIOR COURT OF JUSTICE - ONTARIO RE: NIKHILESH HARIT, Applicant AND JASPREET HARIT, Respondent BEFORE: The Honourable Mr. Justice R. Laliberté COUNSEL: Jeremy Dolgin, for the Applicant Richard Bowles, for the Respondent HEARD: by written submission Ruling on costs [ 1 ] The parties are seeking costs for a motion and cross-motion heard on September 23, 2013. The Court released its decision on September 25, 2013.

The issue revolved around custody and access of the children of the marriage. [ 2 ] While both parties claim success in their written submissions filed with the Court, as noted in the Court’s endorsement of September 25, 2013, “the materials filed in support of their respective motion and counsels’ submissions are such that the parties are relatively close in terms of what interim parental arrangement should be ordered by the Court”. [ 3 ] The reality is that the Court’s decision and the ultimate positions taken by both counsel are relatively close in nature and effect.

The measure of success provided for under Family Law Rule 24. (1) in assessing costs does not lie in the terms imposed by the Court. [ 4 ] According to the Respondent’s affidavit of September 16, 2013, she is the one who required the full custody and access assessment prepared by Dr. Leonoff. This assessment was ordered by Master MacLeod on February 26, 2013.

The report was completed July 2, 2013. [ 5 ] The Court notes that the Respondent’s position was that the motion should be adjourned pending mediation even in light of the recommendations set out in the said assessment. [ 6 ] In the end, the Court accepts the Applicant’s submission that it was necessary for him to bring this motion to secure custody and access as per the recommendations of the expert. [ 7 ] So that the true measure of the “success” of these interim proceedings is the Applicant being granted custody and reasonable access to the children which was in essence the reflection of what was being proposed by Dr.

Leonoff in the context of the Respondent seeking an adjournment for mediation. [ 8 ] While the Rule 24. (1) presumption favours the Applicant, in the end the Court is of the view that a $1,500 award for costs is fair, reasonable and just in all the circumstances. Specifically, the Court has considered the following: (

a) the Respondent did not act unreasonably; (

b) the issues were important for both parties; (

c) she did make an offer to settle; and (

d) she was successful on some points. [ 9 ] Therefore, costs are set at $1,500 all-inclusive to be paid by the Respondent to the Applicant within 60 days of this order. Laliberté J.

Released: October 29, 2013 CI TATION : Harit v. Harit, 2013 ONSC 6662 COURT FILE NO.: 12-3056 DATE: 2013/10/29 ONTARIO SUPERIOR COURT OF JUSTICE RE: NIKHILESH HARIT, Applicant AND JASPREET HARIT, Respondent BEFORE: The Honourable Mr. Justice R. Laliberté COUNSEL: Jeremy Dolgin, for the Applicant Richard Bowles, for the Respondent Ruling on costs Laliberté J. Released: October 29, 2013