Shah v. Shah, 2025 ONCJ 417
ONTARIO COURT OF JUSTICE
BRAMPTON
B E T W E E N:
Vismay Shah
ACTING IN PERSON
APPLICANT
- and –
Chandni Shah
Sofia Dharamshi for the RESPONDENT
RESPONDENT
JUSTICE J. HARRIS
COSTS ENDORSEMENT
Part One – Introduction
1On January 8, 2025, the court delivered written reasons for decision after a Trial concerning the Child’s relocation, Parenting Time, and Decision-Making Responsibility, Shah v. Shah, 2025 ONCJ 5.
2The court ordered the following:
The Respondent shall have all primary decision-making authority for all decisions respecting the Child, and shall not require the Applicant’s signature to obtain any personal or identification documents for the Child, or to travel with the Child outside of Canada for the purposes of vacation, provided that notice and the Child’s contact information has been provided to the Applicant in writing at least 14 days in advance of the travel.
The Child’s primary residence shall be with the Respondent, and she shall be permitted to relocate to India as soon as possible with the Child, so that he may commence school in January 2025, or as soon as possible thereafter.
The Applicant shall have parenting time with the Child as follows, subject to the Child’s views:
a. Structured and flexible contact through web-based programs and WhatsApp:
i. Twice a week based on the Child’s schedule, with one of those days occurring on the weekend, between 9:30 am-10:30 am Toronto Time.
ii. The Respondent shall permit the Child to contact the Applicant whenever the Child wishes.
b. In-person visits with the Child travelling to Canada once a year, during his summer holidays, and the Applicant can spend up to 30 days in total with him during that time or the Applicant can visit India during the Child’s summer holidays, with three months’ notice, and spend up to 30 days in total with the Child.
c. The Applicant is strongly encouraged to participate in individual therapy to better understand how to appropriately engage with the Child.
d. Additional time should the Applicant travel to India outside of the summer holidays or as agreed between the parties.
- All communication between the parties shall be through Our Family Wizard and shall strictly pertain to the Child’s education, health, general well-being, and parenting time only.
3The Mother (Respondent) filed costs submissions dated January 23, 2025, seeking:
Fees on a full indemnity basis + HST from March 15, 2024 - January 24, 2025: $107,780.72
Disbursements + HST from March 15, 2024 - January 24, 2025: $1,701.97
Total = $109,482.69
4The Father (Applicant) filed costs submissions on February 14, 2025, seeking an order for no costs award against him.
Part Two – General Costs Principles
5The costs provisions in the Family Law Rules, O. Reg. 114/99, (the “Rules”) were amended on January 22, 2025. The court will apply those amendments in this decision.
6The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern family costs 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.
7“Costs can be used to sanction behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice”: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 at paragraph 25.
8Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality: Beaver v. Hill, 2018 ONCA 840.
9An award of costs is subject to the factors listed in subrule 24 (14), subrule 24 (7) pertaining to unreasonable conduct of a successful party, subrule 24 (10) pertaining to bad faith, subrule 24 (12) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, 2015 ONCA 918, at paragraph 94.
Part Three – Did the Mother’s offer to settle attract the costs consequences set out in subrule 24 (12)?
10Subrule 18 (4) sets out the technical requirements of an offer to settle, specifically the offer shall be signed personally by the party making it and also by the party’s lawyer, if any.
11Effective January 22, 2025, the cost consequences of making, withdrawal, acceptance and rejection of offers are subject to the costs consequences provided for under subrule 24(12).
12Subrule 24(12) sets out the costs consequences of a party’s failure to accept an offer to settle where additional conditions have been met, as follows:
FAILURE TO ACCEPT OFFER
24(12) A party who makes an offer in relation to a step in a case is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date to the conclusion of the step, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as good as or better than the offer.
13Subrule 24 (13) sets out that the burden of proving that the order is as good as or better than the offer to settle is on the party who claims the benefit of subrule 24 (12).
14In order to attract full recovery of costs, the technical requirement for dual signatures (if the party has a lawyer) of subrule 18 (4) and the conditions of subrule 24(12) are mandatory and must be met: Riss v. Greenough (2003), 2003 CanLII 2224 (ON SC).
15Pursuant to subrule 24(14) (a)(iii), the court may still consider an offer to settle that does not comply with the technical requirements of subrule 18(4) and conditions of subrule 24(12), when considering an award of costs: Jakubowski v. Jakubowski, 2008 CanLII 16067, at paragraph 15.
16The costs presumption set out in subrule 24 (12) can have significant repercussions – full recovery costs from the date of the offer. That is why full technical compliance with subrules 18(4) and 24(12) is required: Mussa v. Iman, 2021 ONCJ 92.
17The Mother made an offer to settle, dated August 8, 2024. The offer was signed by the Mother and her lawyer as required by subrule 18(4). The offer was served at least seven days before the trial date, did not expire and was not withdrawn. The offer was not accepted by the Father.
18In the Father’s submissions he states that he did not receive the Mother’s offer to settle, dated August 8, 2024. However, the Mother submitted an affidavit of service with the email attached which indicates it was sent to the Father’s email address on August 8, 2024 at 3:17 p.m.
19The Father’s submissions also included a previous offer to settle made by the Mother, dated July 15, 2024 that attempted to resolve the issues.
20The Mother’s offer was compliant with subrule 18(4) and subrule 24(12).
21Finally, the offer was as good or better than the result ordered. The offer included the following:
Major decisions concerning the Child, namely [the Child] (“the Child”) shall be made jointly with input from the Applicant and the Child, given his age, but in the event of disagreement, the Respondent shall have final say. The Respondent shall have authority to sign documents and/or obtain any personal or identification documents for the Child, without requiring the Applicant’s signature.
The Respondent is permitted to travel with the Child, for the purposes of vacation, provided that reasonable notice and the Child’s contact information has been provided in advance of the travel to the Applicant.
The Child’s primary residence shall be with the Respondent, and she shall be permitted to relocate to India as soon as possible. Upon the move, the Applicant shall have parenting time with the Child as follows:
a. Regular and flexible virtual access through discord or other web-based programs.
b. Regular and structured contact through Whatsapp to allow for video/telephone contact;
c. [The Child] can travel to Canada once a year at the Respondent’s cost, during [the Child’s] summer holidays, and the Applicant can spend up to 30 days in total with him OR the Applicant can choose to visit India during [the Child’s] summer holidays and spend up to 30 days in total with him with reasonable and agreed upon costs being covered by the Respondent for same.
d. Additional time to be agreed upon should the Applicant travel to India outside of the holidays.
- If there is a material change in circumstances the parties shall revisit this arrangement and the decision for [the Child] to complete his middle school/high school education in India.
22The Father also served an offer to settle, dated October 9, 2024. The offer included the following:
- I am willing to allow Respondent to relocate to India with the child if (Respondent) is willing to
a. Agree with Shared Parenting/ decision making (Joint custody) for our Child [the Child], Age 13.
b. Confirms that Podar School is able to address Child's Special needs (as per history of the Child observed by parents and reported in his School IEPs) to ensure his needs are attended well.
c. Agrees to allow counselor of my choice to assess Child's opinions and voice on monthly basis.
d. Re-consider returning back to Canada if my son is not able to adapt (either academically, socially or environmentally) in the school within 3 - 6 months, in time for next school term in Canada.
e. Ensure that her family disputes do not impact my son's needs or put his safety at risk
f. Provide evidence that she is able to support my son's cost (fees and other costs, including Child's travel to Canada)
g. Ensure that my son is motivated to stay connected with me and visits me in Canada during summer holidays for at least 6 weeks.
h. Should I visit India at any time, my son should be able to live with me during my stay (up to 4 weeks) and travel around with me to see my family and friends, if it aligns with his holidays.
i. Agrees to Revised and fair parenting plan in place that addresses necessary legal statures to prevent any misuse.
j. File Divorce before she travels with full financial disclosure and Net Asset Equalisation.
Alternatively if Respondent reconsiders her relocation to India considering my son's best interests (especially his special needs) and stability in Canada, I’ll share half of his education costs (Tuition fees) with equivalent or better Private school locally in and around GTA, starting next year.
Alternatively if Respondent has to travel and/ or stay in India for her personal priorities, I can look after the child in Canada, keeping him in my care and managing his expenses, sending him to India at my cost for up to 6 weeks during his Summer holidays.
Regardless of options, major decisions concerning the Child, namely [the Child] ("the Child") shall be made jointly by both parents, including authority to sign documents and/or obtain any personal or identification documents for the Child.
Revised Parenting/ Custody orders to include conditions, acknowledgement and necessary penalties/ restrictions for travelling with the Child, by both parents. Both Parents shall have equal permission to travel with the Child, for the purposes of vacation or visiting family, subject to -
a. reasonable notice (min 14 days),
b. signed consent from other party for Travel and Immigration purposes
c. the Child's contact information has been provided in advance of the travel with the other Parent.
The Child's primary residence can be with Respondent or at preference of the child, however the child should be able to spend fair time with me (Applicant), minimum 70 - 120 days in total (including weekdays and holidays - to be negotiated and agreed).
Note I am flexible with Child's access agreement as long as it is fair and gives the Child the opportunity to be engaged/ connected with me and my family/ friends for his needs and development. I will share fair cost for the child's growing needs and expenses, proportionate to the time being shared.
23The Father did not match or exceed his offer to settle. The Father’s offer to settle contains provisions that the Ontario Court of Justice cannot order.
Part Four – Success
24Subrule 24 (3) sets out a presumption that the successful party is entitled to costs.
25The Father concedes that the Mother was the successful party but takes the position that costs should not be awarded against him because of his financial constraints.
26The court finds that the Mother is entitled to costs as the successful party.
Part Five – Amount of Costs
27The court considers subrule 24(14) when determining the amount of costs. Subrule 24 (14) reads as follows:
24(14) In setting the amount of costs in relation to a step in a case, the court may consider,
(a) the reasonableness and proportionality of the following factors, as applicable, as they relate to the importance and complexity of the issues in the step:
(i) Each party’s behaviour.
(ii) The time spent by each party.
(iii) Any written offers to settle, including offers that do not meet the conditions set out in subrule (12) or the requirements of rule 18.
(iv) Any legal fees, including the number of lawyers and their rates.
(v) Any expert witness fees, including the number of experts and their rates.
(vi) Any other expenses properly paid or payable; and
(b) any other relevant matter.
28Even when a party has failed to accept an offer to settle that meets the conditions of subrule 25(12), the court has residual discretion under subrule 24(12) to not order full recovery costs, where it states “unless the court orders otherwise”.
29The issues were of great importance to the parties.
30The reasonableness of the parties’ positions, arguments and conduct are relevant to the issue of costs. An important function of costs is to uphold the integrity of our justice system. Costs are one way of ensuring the resources of the justice system are not unduly drained by clearly unreasonable claims and problematic litigation strategy: Weber v. Weber, 2020 ONSC 6855.
31In considering the reasonableness of the parties’ conduct, the judge deciding costs should also address their mind to whether they have complied with court orders and the rules during the proceeding: M.A.B. v. M.G.C., 2023 ONSC 3748.
32The Mother acted reasonably. The Mother was focused on the Child’s best interests throughout.
33The Father did not act reasonably. The Father did not assess the strength of his case and work towards a child-focused resolution. The Father was focused on litigating historic perceived wrongdoings. The Father delayed the final resolution of the issues. The Father brought several repetitive motions. As held in the trial decision, the Father focused on many financial and other issues that were not relevant and that this court lacked jurisdiction to order, which significantly prolonged the trial.
34The Mother alleges the Father acted in bad faith.
35Where a party has acted in bad faith, such as attempting to deceive the court or engaging in conduct which increases the costs to the other party, then subrule 24(10) authorizes the court to decide costs on a full recovery basis.
36In Scalia v. Scalia, 2015 ONCA 492 at paragraph 68 the Court of Appeal for Ontario stated:
1The legal test for bad faith in the family law context, as set out in S. (C.) v. S. (M.), 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164, 38 R.F.L. (6th) 315 (S.C.J.), at para. 17, affd 2010 ONCA 196, 2 O.A.C. 225, is that the impugned behaviour must be shown to be carried out with "intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court". In short, the essential components are intention to inflict harm or deceive.
37In some behaviours the Father’s conduct hovered very close to bad faith. The Father was certainly unreasonable. The Father made attacks against Mother’s counsel, which were not supported by the evidence and were unreasonable, unwarranted, and unfair. However, the court does not make a finding of bad faith.
38The rate of $360.00 per hour claimed by the Mother’s lawyer is reasonable. Two law clerks were also billed at lower hourly rates, $120 and $140 respectively, which lowered the overall costs and was reasonable.
39In reviewing the Mother’s bill of costs, there is no duplication of work between the lawyers and law clerk who worked on the case.
40The court finds that the time claimed for the issues and the steps taken from May 15, 2024 to January 17, 2025 was 246.35 hours for the Mother’s lawyer and 25.1 hours for one law clerk and 15.55 hours for the second clerk, given the issues before the court and the various motions and other attendances, complicated by the Father’s unreasonable approach, the court finds that the time claimed is reasonable.
41The Father does not dispute the hours spent by the Mother’s counsel and indicates that he spent over 720 hours, which he notes is a “conservative estimate” on this litigation.
42The court also considers the other written offers to settle. The Mother made a previous offer to settle, dated July 15, 2024, and the Father made an offer to settle, dated October 9, 2024.
43The parties each offered to allow the Child to relocate to India.
44However, the Father’s offer tied the Child’s ability to relocate to “full financial disclosure and net asset equalisation”. This is an unreasonable term, given the parties’ separation agreement, the relief is incapable of being ordered by the Ontario Court of Justice, and the Father’s lack of payment of any child support since separation or on an ongoing basis, which was also a term of the parties’ separation agreement. The Father appears to have sought to obtain a financial benefit from permitting the Child’s relocation. However, the Father’s offer also includes alternative offers if the Child were to stay in Ontario, which demonstrates he was attempting to compromise to some minor degree.
Prior Steps
45The Mother also claimed time for prior steps in the case.
46Subrule 24 (1) sets out that promptly, after dealing with a step in a case, the court shall, in a summary manner, determine who, if anyone, is entitled to costs in relation to that step and set the amount of costs or reserve the decision on costs for determination to a later step in the case.
47Subrule 24 (2) sets out that the failure of the court to make a costs order, or reserve costs after a step in a case does not prevent the court from awarding costs in relation to that step at a later step in the case.
48In Berge v. Soerensen, 2020 ONCJ 265 Justice Zisman set out the following circumstances where costs of a prior step should be awarded:
a. Costs have been reserved to the trial judge.
b. When, considering subsequent events, the trial judge is better situated to determine the costs of the prior step than the judge presiding over the step or
c. In exceptional circumstances.
49Costs accrued from activity not specifically related to a prior step in a case can be ordered at the end of a case. Activity not requiring judicial intervention is often better dealt with at the end of the case and not by the motions judge: Houston v. Houston, 2012 ONSC 233; Walts v. Walts, 2014 ONSC 98; F.S. v. M.B.T., 2023 ONCJ 144.
50The Mother is not seeking costs for any step that had a cost award made or had no costs ordered. Two of the Applicant’s denied motions had costs reserved.
51The Mother is entitled to seek those costs.
Reasonable Expectations
52In 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: Arthur v. Arthur, 2019 ONSC 938.
53The Father obtained limited legal services and incurred $21,970.00 himself. Given the amount of costs the self-represented Father incurred through a limited scope retainer, the court finds the Father should have reasonably expected to pay the amount of costs sought, if he was unsuccessful.
54In the case of Beaulieu v. Diotte, 2020 ONSC 6787, at paragraph 9 Justice Mackinnon stated:
…the respondent’s conduct and lack of success are such that costs should be fixed and payable now. Nor is this a case where he has established inability to pay. Assertions made in costs submissions will rarely if ever, be sufficient. And, 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 cost: see C.A.M. v. D.M., 2003 CanLII 18880 (O.C.A.); I.S. v. T.C., 2020 ONSC 5411.
55The court finds that the Father can afford these costs.
56The Mother, who has been the Child’s custodial parent since separation, should not be burdened with all these legal costs.
Self-Represented Parties
57In his submissions, the Father repeatedly refers to the fact that he is self-represented as a factor to reduce his costs obligations.
58In M.A.L. v. R.H.M., 2018 ONSC 2542, at paragraph 13 , Justice Pazaratz held:
13But the remaining two objectives — “encouraging settlement” and “discouraging/sanctioning inappropriate behaviour” — are often unrelated to whether the successful party has a lawyer or not.
a. In our overburdened court system, costs is more than a question of financial reimbursement for a successful party.
b. The “risk/threat” of costs is perhaps the single most important tool our system has to ensure compliance with the Rules; encourage reasonable behaviour; and discourage unnecessary or inappropriate litigation.
c. All litigants should be encouraged to actively pursue settlement — whether the opposing party has counsel or not.
d. All litigants should be equally subject to sanction for inappropriate or unreasonable litigation behaviour — whether the opposing party has counsel or not.
e. All litigants should be mindful of costs implications and consequences at every step — whether the opposing party has counsel or not.
f. If we create a two-tier system — in which some litigants perceive they don’t have to worry about costs because their opponent didn’t hire a lawyer — we will tacitly invite wasteful, expensive and often destructive family litigation. We will lose our ability to control the process. We will fail in our responsibility to protect families from needless pain and financial burden. Our Rules will have no teeth.
g. At a time when our family court system is seeing ever-increasing numbers of self-represented parties, it is important to reaffirm that costs sanctions apply equally whether parties have counsel or not. No one should get a “free pass.” …
59The Father also asks the court to consider his personal situation, his actions as a concerned father, his financial situation, uncertainty with is work, his stress and his pending Superior Court of Justice application.
60Through costs awards, family law litigants are held responsible and accountable for the life choices they make, their reactions to situations they may perceive as beyond their control, and the positions they take in litigation.
61The Father’s actions have unreasonably caused the Mother, the Child’s primary caregiver, serious financial costs. The Father’s behaviour resulted in disproportionate consumption of court time and resources that would otherwise have been available to other families in need. The court understands some of the Father’s behaviour was as a result of his concern as a Father for his son’s best interests.
Costs Decision
62Ultimately, the court finds it reasonable and proportionate to order the Father to pay the Mother costs of $85,000.00 inclusive of taxes.
63The award of costs has been ordered in this amount based on the following:
a. The Mother was the successful party.
b. The Father’s failure to accept the Mother’s offer to settle, dated August 8, 2024.
c. The Father’s unreasonable litigation conduct which prolonged the trial and the litigation.
d. The reasonableness of the hourly rates claimed by the Mother’s lawyer and law clerks.
e. The reasonableness of the number of hours claimed by the Mother’s lawyer and law clerks.
f. The Father’s offer to settle, dated October 9, 2024, which suggested some effort at compromise.
64A final order shall go as follows:
a. The Father shall pay the Mother costs fixed at $85,000, inclusive of disbursements and HST. The costs are due and payable within 90 days of the date of this endorsement.
65This matter is now fully and finally resolved. The court file is now closed.
Justice J. Harris