Amirmojahedi v. Rivette, 2019 ONSC 191

Background

This is a cost endorsement following a lengthy and complex family law trial before the Ontario Superior Court of Justice. The trial spanned thirteen days, beginning in 2017 and concluding in 2018, with final written submissions delivered in July 2018. The court released its substantive decision on the merits in November 2018. This decision addresses the allocation and quantum of costs flowing from that judgment.

The litigation arose from the breakdown of a long-term spousal relationship and involved a wide range of contested financial and property issues. The court was required to adjudicate the commencement date of cohabitation, entitlement to and duration of spousal support, the enforceability of an Islamic marriage contract (Mehr), ownership and treatment of real property, equalization of net family property, household contents, and divorce.

Following the release of the trial decision, both parties delivered written submissions on costs. The applicant sought full recovery costs exceeding $200,000, inclusive of disbursements and HST. The respondent opposed the request, argued that the applicant should receive no costs, and additionally sought modest costs relating to a motion commenced but later abandoned by the applicant.

Findings on Success and Conduct

The court undertook a careful, issue-by-issue assessment of success. While the respondent was successful on the calculation of equalization of net family property, the applicant was found to be entirely or more successful on several of the most significant and contentious issues at trial, including the determination of the commencement of cohabitation, the enforceability of the Mehr, the treatment of a key Niagara Falls property acquired during the marriage, and the determination of ongoing spousal support.

Although the outcome was mixed, the court emphasized that success is not measured by tallying issues won and lost. Rather, the analysis focuses on which issues were most important, most contentious, and consumed the most trial resources. On that global assessment, the applicant was found to be the successful party and therefore presumptively entitled to costs.

A decisive factor in the cost analysis was the respondent’s conduct regarding the Niagara Falls property. While the litigation was ongoing and ownership of the property was in dispute, the respondent transferred the property into joint ownership with a third party, sold it, and distributed the proceeds without the applicant’s knowledge or consent. The applicant only discovered the sale months later.

The court characterized this conduct as clear bad faith and a deliberate attempt to defeat the applicant’s equalization rights. The respondent was described as the “author of his own misfortune,” and the court emphasized that such conduct undermines the integrity of the family law process and warrants serious consequences.

Why was the applicant treated as the successful party despite the respondent’s success on equalization?

The court’s approach reflects a well-established principle in family law: success is assessed globally, not mechanically. Although the respondent succeeded on the equalization calculation, the applicant prevailed on the most significant and heavily litigated issues, including spousal support, the enforceability of the Mehr, and the treatment of a major real property asset. These issues drove the length, complexity, and cost of the trial. As a result, the applicant was properly characterized as the successful party for cost purposes.

Why were costs awarded on a partial indemnity basis despite bad faith?

The court emphasized that even serious misconduct does not automatically justify full recovery costs. Rule 24 requires proportionality and fairness. While the respondents’ conduct warranted a substantial costs award, not all aspects of the litigation were attributable to bad faith. By awarding $110,000 on a partial indemnity basis, the court balanced compensation, deterrence, and reasonableness without turning costs into a purely punitive measure.