Ontario Court of Justice
Date: April 21, 2022 Court File No.: FO-21-00041895
BETWEEN:
Jwalitha Kommineni Applicant
— AND —
Gopala Ksishna Kumar Guggilam Respondent
Before: Justice Roselyn Zisman
Heard: By written submissions Reasons for Judgment released on: April 21, 2022
Counsel: Veena Pojani, for the applicant Ron Shulman and Ruhaina Dhirani, for the respondent
Decision with respect to costs
Zisman, J.:
Background
[1] The Respondent (father) [1] seeks full recovery of costs of $105,734.78 for a trial regarding the return of the parties’ young child, pursuant to the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”).
[2] On August 30, 2018, the Applicant (mother) removed the child, who was almost 2 years old, from her habitual residence of Redmond Washington without the prior knowledge or consent of the father. The mother went to India with the child and continued to make the father believe that she could not return to the United States as her H-4 dependent status Visa had expired and she needed paperwork from the father.
[3] Unbeknownst to the father, the mother then left the child with the maternal grandparents in India and relocated to Calgary Alberta but continued to lead the father to believe she and the child were still in India.
[4] Once the father discovered that the child had been left in India with the maternal grandparents, he arranged a leave of absence from work and travelled to India. He began family law proceedings for custody in India as that country is not a signatory to the Hague Convention. Both parties were represented by counsel in that proceeding. During those proceedings and with a pending motion for non-removal of the child, the maternal grandparents left India with the child and joined the mother in Calgary.
[5] The mother did not provide the father with her address despite many requests for that information.
[6] Again, without advising the father, in about March 2021, the mother then moved to Toronto with the child and the maternal grandparents.
[7] The father only discovered the whereabout of the mother and child in September 2021 when the mother began an Application in this court for sole decision-making responsibilities, ancillary parenting orders and child support.
[8] The father attended the first appearance, retained counsel shortly thereafter and served and filed his responding pleadings that requested a return of the child, pursuant to the Hague Convention.
[9] The father was completely successful at trial. The court found that the mother had wrongfully removed the child from her habitual residence from Redmond Washington to India, then to Calgary and then to Toronto. There were findings that the mother’s moves were calculated, surreptitious and intentional. The mother was found not to be a credible witness. She was evasive, contradicted herself and made misleading statements in her court documents.
[10] It is conceded by the mother’s counsel that the father was the successful party on the trial but submits that the mother acted appropriately during the trial, complied with the court order to deliver the child’s identification documents to the father’s counsel’s office and turned over the child to the father without the necessity of police involvement.
[11] It is submitted that in good faith the mother believed that as the primary parent she was permitted to make decisions about where the child lived.
[12] It is submitted that the mother does not have the ability to pay a large costs order. It is further submitted that the amount of the father’s legal fees are excessive and include prior steps and duplication of services by several different counsel and law clerks.
[13] The mother submits that a cost order of $18,000 is reasonable and proportionate to the issues in this trial.
General Principles
[14] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that cost orders are in the discretion of the court.
[15] Subrule 24 of the Family Law Rules (FLR) sets out a framework for awarding costs for family law cases.
[16] In the case of Mattina v. Mattina, 2018 ONCA 867, the Ontario Court of Appeal has confirmed that modern family cost rules are designed to foster four fundamental purposes:
(1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly pursuant to subrule 2 (2) of the FLR.
[17] Subrule 24(1) Family Law Rules (FLR) creates a presumption that the successful party is entitled to costs. The exercise of judicial discretion in awarding costs is guided by FLR 24 (12) both in terms of the entitlement of a party to an award of costs as well as to the quantum of that award.
[18] The Ontario Court of Appeal in the case of Beaver v. Hill, 2018 ONCA 5412, clarified several aspects of the cost rules namely, that there is no provision in the FLR that provides for a general approach of fixing costs at “close to full recovery” and that “proportionality and reasonableness are the touchstone consideration” to be applied in fixing the amount of costs.
[19] The court held that a cost award is subject to the factors listed in FLR 24(12), the directions set out under FLR 24(4) (unreasonable conduct by the successful party), FLR 24(8) (bad faith), FLR 18(14) (offers to settle) and the reasonableness of the costs sought by the successful party.
[20] FLR 24 (12) provides the considerations in setting the amount of costs, including the reasonableness and proportionality regarding the parties’ behaviour, the time spent by each party, any written offer to settle, legal fees and any other expenses paid.
[21] The court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. An award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant. See: Boucher v. Public Council (Ontario), [2004] OJ No. 2634 (OCA); Delellis v. Delellis.
[22] In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.
[23] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003), 67 O.R. (3d) 181 (Ont. C.A.).
[24] However, a party’s limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs. See: Snih v. Snih, 2007CanLII 20774 (Ont. SCJ paras. 7-13).
[25] Difficult financial circumstances are a factor but not are always a reason to deprive a successful party of costs or to reduce the amount of costs. See: Beaulieu v. Diotte, 2020 ONSC 6787.
[26] Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3238; Balsmeier v Balsmeier, 2016 ONSC 3485.
Costs Pursuant to the Hague Convention
[27] As this trial was pursuant to the Hague Convention, the convention also has rules with respect to costs.
[28] Article 26 of the Hague Convention provides that the court can order the person who removed or retained the child “to pay necessary expenses incurred by or on behalf of the applicant [move away parent] including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant [left behind parent], and those of returning the child”.
[29] The court has a broad discretion pursuant to Article 26. It allows the court to order costs for the following:
- to pay necessary expenses incurred by or on behalf of the applicant;
- to pay travel expenses,
- to pay any costs incurred or payments made for locating the child;
- to pay the costs of legal representation of the applicant; and,
- to pay those of returning the child.
[30] Article 26 of the Hague Convention has three objectives:
a) to compensate the left behind parent for costs incurred in locating and recovering the abducted child; b) to punish an abducting parent; and c) to deter other parents from attempting to abduct their children.
See Beatty v. Schatz, 2009 BCSC 769, [2009] (B.S.C.), para 16.
[31] The Hague Convention anticipates that all necessary expenses incurred to secure the child’s return will be shifted to the abductor, both to restore the father to the financial position he would have been in had there been no removal or retention, as well as to deter such conduct from happening in the first place. See Dalmasso v. Dalmasso, 9 P.3d 551 (U.S. Kan. S.C. 2000); Beatty v. Schatz, 2009 BCSC 769, supra, para 17; Solem v. Solem, 2013 ONSC 10 at para. 10.
[32] Article 26 gives the Court authority to order legal costs beyond those ordinarily provided for in family law cases by the rules of court. The legal costs provided for in the rules are generally only a portion of the actual legal costs incurred: Beatty v. Schatz, 2009 BCSC 769, supra, para 20.
Application of Legal Principles to Facts of this Case
[33] The father as the successful party is entitled to costs. He acted reasonably throughout the proceedings.
a) Offer to Settle
[34] The father served a severable offer to settle that met the requirements of FLR 18. [2] The offer to settle provided that the child be immediately returned to Redmond Washington and that the father would be responsible for all travel costs for the mother and the child. The father would provide the mother with an advance payment of up to $10,000 to cover travel expenses that would be accounted for in the court proceedings in Washington. All issues relating to the parties’ separation and the child would proceed in the Superior Court of Washington.
[35] The mother also served an offer to settle that provided that this court retain jurisdiction pertaining to the child. The father would have parenting time for 4 consecutive days for 5 hours to be supervised by the mother or her designate at times that accommodate the father’s work schedule and travel constraints. The offer also provided for video conferencing.
[36] The result of the trial were more favourable than the offer to settle as the child was ordered to be returned to her habitual residence in Redmond Washington and there was no financial compensation to the mother for travel expenses.
[37] FLR 18 (14) provides that as a result the father is entitled to full recovery of costs from the date the offer to settle was served.
b) Bad Faith
[38] Counsel for the father seeks a finding that the mother acted in bad faith.
[39] In order to come within the meaning of bad faith pursuant to FLR 24 (8), behaviour must be shown to be more than just bad judgement. The behaviour must be carried out with the intent to inflict financial and emotional harm on the other party affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. See: S. (C.) v. S. (M.) at para. 16 and the many cases cited therein.
[40] I find that the mother acted in bad faith based on the following;
a) The mother had a pre orchestrated plan to leave with the child to India in August 2018 without the father’s prior knowledge or consent. b) The mother misled the father after her wrongful removal of the child as to the whereabouts of the child or herself. c) The mother misled the father as to who was caring for the child when she left the child with the maternal grandparents in India for over two years. d) During court proceedings in India and while the father’s request for an urgent motion to prevent the child being removed from India was pending, the maternal grandparents removed the child to Calgary Alberta where the mother was residing. e) The mother misled the father, the court in India and this court by deposing in her affidavits that she was unable to return to the United States as her Visa had expired. She only revealed at trial that she had obtained a Visitor’s Visa in February 2020 that permitted her to travel to the United States for up to 6 months accordingly the mother could have returned to the United States and addressed the issues in the court in Washington state. f) The mother was oblivious to the fact that by continuing this litigation the father’s legal costs were mounting. The mother could have easily avoided this trial by accepting the father’s offer to settle. g) Although at the commencement of the trial counsel for the mother conceded that Redmond Washington was the child’s habitual residence, the mother contradicted this in her oral evidence and also raised spurious claims of domestic violence that required the father to respond and incur unnecessary legal fees and increased the trial time. h) The father spent 3 years attempting to locate his child, attempting to have a relationship with his child and have her returned to her habitual residence.
[41] As a result of a finding of bad faith, FLR 24 (8) indicates that a court shall decide costs on a full recovery basis and shall order those costs to be paid immediately.
c) Costs for Steps in the Proceeding
[42] Counsel for the mother submits that the father should not be able to claims costs for any prior steps before the motion was set for trial. She submits that he should not be able to claim for example for a case conference as the FLR require a case conference to be held before an urgent motion.
[43] In this case as the court staff did not flag that the father’s Answer contained a claim pursuant to the Hague Convention for the return of the child. As a result counsel for the father was forced to bring a 14B for an urgent motion. Counsel for the mother denied the motion was urgent and requested a case conference. Once the court became aware of the nature of the proceeding, an immediate court attendance was arranged and the matter was set for trial. As counsel for the mother claimed it would be unfair to proceed without a case conference, the conference was arranged before another judge.
[44] Counsel for the mother states that the mother acted reasonably in that she made an offer in her case conference brief to move to the United States if the father completed the necessary paperwork. Although FLR 17 (23) refers to offer to settle in a settlement conference brief being confidential, the same reasoning applies to such offers made in a case conference brief. In this case, if the mother was prepared to move back to the Untied States then that offer is not reflected in her formal offer to settle. Further, it appears that the mother continued to mislead the court at this conference by continuing to claim she could not return to the U.S. and did not reveal she already had a Visitor’s Visa to enter the U.S.
[45] Articles 1, 2 and 11 of the Hague Convention require a court to act promptly and use the most expeditious procedures available to secure the return of children wrongfully removed to or retained in any contracting state. The court can be required to explain why it has not reached a decision within 6 weeks of the commencement of the proceedings. Accordingly, a prior case conference is not required to be held. In this case, the court could accommodate a case conference without delaying the trial.
[46] Expansive costs can be ordered pursuant the Hague Convention in addition to the costs that can be ordered pursuant to the FLR. Therefore, I find that it is appropriate for counsel for the father to claim costs for not only prior steps in this proceeding but also for discussion with counsel in Washington regarding that pending proceeding and for assembling the documents from the proceedings in India.
d) Full Recovery of Costs
[47] Although the father is entitled to full recovery of costs as a result of a finding that the mother acted in bad faith and as he obtained a better order than his offer to settle, that does not mean that the father is entitled to be reimbursed for all his legal expenses. Full recovery of costs refers to the full amount that the party has claimed in the context of the litigation, considering the factors listed in FLR 24 (12) and subject to any adjustments that the court finds are appropriate based on the reasonableness and proportionality of the costs claimed. See Piskor v. Piskor, [2004] O.J. No. 796 (SCJ) and Van Westerop v. Van Westerop, [2000]O.J. No. 4346 (SCJ) for similar comments.
[48] This trial was completed in 3 days. As a result, counsel for the mother submits that the bill of costs is excessive. However, this trial proceeded with only 2 weeks notice to counsel and as a focused trial the parties’ evidence in chief was by affidavit evidence. Preparing affidavit evidence requires much more time than simply preparing for oral evidence. Counsel prepared a factum, book of authorities and document briefs.
[49] The trial was extremely important to the father and it is reasonable that his counsel would thoroughly prepare for trial.
[50] However, I agree with counsel for the mother that the hourly rates charged are excessive and that due to the use of several associate counsel and several law clerks there is a great deal of duplication of work and fees for consultation between counsel. At trial both senior counsel Ron Shulman and junior counsel attended. Only senior counsel was needed and the mother should not have to be responsible for the fees of both counsel.
[51] Mr. Shulman has 15 years of experience and his hourly rate is $700. By contrast mother’s counsel has 27 years of experience and her hourly rate is $425. Although father’s counsel’s hourly rate is on the high side, I find that his actual time for preparing for trial and attending trial are not excessive.
[52] However, junior counsel has only 1 year experience and her hourly rate of $385 I find is excessive. In total her work on this file including attending at trial, was $47,634. While it is practical for a junior counsel to undertake some work at a lower hourly rate, the hourly rate needs to reflect counsel’s experience. The time spent for preparation of the pleadings, consulting with other counsel, research and so on reflect excessive time spent. Also, the involvement of two other counsel resulted in duplication of work.
[53] There were also 5 different law clerks working on the file that is not efficient. It is not clear if their work amounted to anything more than usual clerical work as opposed to functions of a law clerk. I would also reduce these fees.
e) Ability to Pay
[54] It is submitted that a substantial costs order would bankrupt the mother and she would lose her condominium. The mother requires funds to travel to Washington to see her daughter and to participate in the court proceedings in the U.S.
[55] The mother is a student studying to be a dental hygienist. She was a dentist in India. She is supported by student and family loans.
[56] It is further submitted that a cost order should not be used to penalize the mother or make an example of her as she had the right to proceed with the trial as she genuinely believed as the primary parent she had the right to move with the child.
[57] A party’s financial circumstances can be taken into consideration by a court but this does not give a party a forum to pursue litigation in any manner they chose and without any thought to the consequences if they are unsuccessful.
[58] Even if the mother genuinely believed she had the right to remove the child from her habitual residence without the father’s knowledge or consent and then leave her in India and then move her to Calgary and then to Toronto – all without the father’s consent or knowledge – once she retained counsel in Ontario, she should have realistically assessed her chances of success at trial. The mother having made a calculated risk in pursuing her claims in this jurisdiction cannot now plead that she cannot afford to pay the costs of her failed litigation.
Conclusion
[59] One of the purposes of orders for costs in family litigation is to discourage and sanction inappropriate behaviour by litigants.
[60] Pursuant to the Hague Convention costs are designed to punish the abducting parent and to deter others from attempting to abduct their children.
[61] Costs pursuant to the FLR and the Hague Convention is also meant to compensate a successful litigant.
[62] In this case, the father has not requested all of the legal expenses and costs that he would be entitled to claim pursuant to the Hague Convention; such as, his legal expenses for the litigation in India, his travel costs to and from India, travel costs to and from Toronto. No amount of costs can compensate him from being deprived of having a relationship with his daughter for over 3 years.
[63] I find that taking into consideration all of the factors in FLR 24 and the fact that this was a trial in the context of a wrongful removal of a child in contravention of the Hague Convention, I find that total costs of $75,000.00, inclusive of disbursements and applicable taxes, is reasonable and proportionate to the issues in this trial.
[64] There will be an order as follows:
- The Applicant Jwalitha Kommineni shall pay to the Respondent Gopala Ksishna Kumar Guggilam $75,000.00 inclusive of disbursements and applicable taxes.
- Unless the parties are able to agree on a repayment plan in writing, this amount shall be payable within 30 days.
Released: April 21, 2022 Signed: Justice Roselyn Zisman
Footnotes
[1] The father is the Respondent to the mother’s Application but the moving party on the Hague Convention Application. [2] The costs submissions incorrectly refers to the offer to settle being served February 17th (the last day of trial) but the Bill of Costs indicated it was served on February 9, 2022.
