Srikanthan v. Kiritharan, 2025 ONCJ 668
COURT FILE NO. D46418/25
ONTARIO COURT OF JUSTICE
B E T W E E N:
ANBUJA SRIKANTHAN
RON SHULMAN and SAMANTHA D’SOUZA-SEN, for the APPLICANT
APPLICANT
- and –
NESARAJAH KIRITHARAN
ACTING IN PERSON
RESPONDENT
HEARD: In Chambers
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
1On November 10, 2025, the court gave oral reasons for decision after hearing parenting and child support motions regarding the parties’ one-year-old child (the child).
2The parties were given the opportunity to make written costs submissions. The applicant (the mother) seeks her full recovery costs of $20,564. The respondent (the father) asks that no costs be ordered.1
Part Two – Brief background
3The parties were married in September 2023. They separated on July 8, 2025, and the mother left the matrimonial home with the child on August 1, 2025. They have no other children.
4The father exercised day parenting time twice each week after the parties separated.
5The father did not return the child to the mother after a visit on August 31, 2025. The parties both retained counsel.
6The mother brought a motion, without notice to the father, on September 11, 2025, seeking the return of the child. Justice Sara Mintz required her to serve the motion on the father through counsel and held the matter down. The parties consented to a temporary order that day that included the following terms:
a) The child was to be returned that day to the mother by 6 p.m.
b) The father would have unsupervised parenting time with the child every Sunday and Monday from 8 a.m. to 8 p.m.
c) Third parties would conduct the exchanges.
d) The motions were adjourned. Costs were reserved.
7The court conferenced the issues on September 26, 2025. Timelines were set for filing the motion materials.
Part Three – General costs principles
8The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern 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 under subrule 2 (2) (all references in these rules are to the Family Law Rules).
9Costs 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. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, 2003 S.C.C. 71, paragraph 25.
10Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
11An 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. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.
Part Four – Bad faith
4.1 Legal considerations
12Subrule 24 (10) of the rules states that 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.
13Subrule 24 (10) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. See: Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 CarswellOnt 14971 (Ont. SCJ).
14There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. See: S.(C.) v. S. (M.) (2007), 2007 CanLII 20279 (ON SC), 38 R.F.L. (6th) 315 (Ont. SCJ).
15Bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation. See: Scipione, supra.
16Persistent refusal by a party to make accurate financial disclosure and reveal their true income may rise to the level of bad faith. See: DePace v. Michienzi 2000 CanLII 22460 (ONSC); Kardaras v. Kardaras, 2008 ONCJ 616; Jones v. Hugo, [2012] ONCJ 381.
4.2 Analysis
17The mother submits the father acted in bad faith and seeks full recovery costs. She claims he overheld the child for 12 days as leverage to negotiate preferable parenting and support orders. The father also failed to provide her with financial disclosure.
18The court finds that the father’s conduct was unreasonable. However, it did not meet the high threshold required to make a finding of bad faith. The father subjectively believed he could keep the child while the lawyers were negotiating. There was no court order, and he believed an agreement was imminent. He had been criminally charged with assaulting the mother and could not communicate directly with her.
19The father should have provided financial disclosure in advance of the hearing. If this case was further along, the court might have made a finding of bad faith against him. However, the case was at an early stage, the father had just left his job, and he was dealing with urgent family and criminal law issues. It was not difficult to determine his income.
Part Five – Success
20Subrule 24 (3) sets out a presumption that the successful party is entitled to costs.
21To determine whether a party has been successful, the court should examine who was the successful party based on the positions taken in the litigation. See: Lazare v. Heitner, 2018 ONSC 4861. This assessment includes the positions taken in the pleadings, and the specific relief sought at the hearing, if different. See: Kyriacou v. Zikos, 2022 ONSC 401.
22The mother was the successful party – although not completely successful. She succeeded on the following issues:
a) Justice Mintz ordered the child returned to her care on September 11, 2025.
b) She obtained orders for temporary primary residence and decision-making responsibility for the child.
c) The court ordered day parenting time for the father, as she requested. The father had sought overnight parenting time.
d) The court imputed an annual income of $100,000 to the father for support purposes. It found that he was deliberately unemployed without a valid reason. The court also ordered him to contribute $200 each month to the child’s special and extraordinary expenses.
23The court did not order the following parenting terms sought by the mother:
a) Designating third parties chosen by her for the parenting time exchanges.
b) Requiring the father to ensure third parties did not smoke around the child.
c) Requiring the father to ensure third parties did not use heavily scented products when caring for the child.
d) Visits would be forfeited if the third parties chosen by the father were 15 minutes late.
24The father did not rebut the presumption that the mother is entitled to her costs.
Part Six – Unreasonable conduct
6.1 Legal considerations
25Subrule 24 (14) reads as follows:
24 (14) In setting the amount of costs, the court shall consider,
a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(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 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
26The 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 ill-advised litigation strategy. See: Weber v. Weber, 2020 ONSC 6855. The court may award elevated costs where one party's conduct has been unreasonable. See: Barrett v. Watson, 2024 ONSC 1118 (SCJ); Houston v. Houston, 2025 ONSC 2824.
27Conduct which unduly complicates or unduly lengthens and increases the cost of a proceeding constitutes unreasonable conduct under subrule 24 (14) (a) (i). See: Goldstein v. Walsh, 2019 ONSC 3174 (SCJ); Hutchinson v. Peever, 2021 ONSC 4587 (SCJ); Jackson v. Mayerle, 2016 ONSC 1556 (SCJ).
28Being unsuccessful does not equate necessarily to being unreasonable. See: Wauthier v. McAuliff, 2019 ONSC 5302; W.H.C. v. W.C.M.C., 2021 ONCJ 363.
6.2 Analysis
29Neither party submitted an offer to settle. Severable offers to settle should have been made in this case. The failure to do so was unreasonable behaviour by both parties. See: H.F. v. M.H., 2014 ONCJ 526; Franzene v. Franzene, 2025 ONSC 6015.
30The mother should have brought her September 11, 2025 motion on notice to the father. The parties were negotiating through counsel. Justice Mintz identified this and held the case down. This resulted in a temporary consent being reached that day.
31Otherwise, the mother acted reasonably.
32The court finds that the father engaged in unreasonable conduct as follows:
a) He unreasonably overheld the child for 12 days. The mother had to come to court to have the child returned.
b) The mother missed the child’s first birthday during this time.
c) The father failed to pay any child support to the mother.
d) The father failed to provide financial disclosure. The court questioned him about his income at the hearing.
e) The court found the father was deliberately underemployed without a valid reason. He had just gone on leave from his job with the TTC.
f) The court finds that the father’s unreasonable conduct unduly created additional time and expense for these steps in the case.
Part Seven – Additional costs considerations
33This case is important to the parties. It is not complex or difficult.
34The amount claimed for costs by the mother is excessive and disproportionate. Four lawyers worked on the case.
35In Diamond v. Berman, 2020 ONSC 4301, Justice Heather McGee suggested a legal principle whereby that multiple counsel cannot be claimed in costs against another party:
As a general principle, I am of the view that the costs of multiple counsel cannot be recovered in costs. The recovery of fees for multiple counsel does not create an exception to the ordering of costs in an amount that would have been reasonably expected to have been paid by the unsuccessful party. One cannot shift to the other party the financial consequences of engaging multiple counsels any more than the consequences of engaging counsel with a higher hourly rate than is reasonable in the circumstances. To allow otherwise would be to permit litigants to financially intimidate their opponent and to potentially discourage meritorious claims.
36In Fearon v. Fearon 2021 ONSC 2305, Justice Trimble wrote as follows:
A client is entitled to have as many lawyers work on a file as that client wishes to pay for. Whether the opposing party shall be forced to pay for the cost of more than one lawyer on a party and party assessment is a different question. An award of costs in this context is no reflection on the economic relationship between lawyers and their counsel. Rather, the determination is whether it is fair and reasonable that the paying party should pay for more than one counsel in all the circumstances.
37In Oretsky v. Viktyuk, 2024 ONCJ 163, Justice Wiriranai Kapurura found that a costs claim for two lawyers attending for a party at trial amounted to a duplication of services and that a reduction in costs was warranted.
38Here, the mother’s bill of costs was reduced by having some of the work done by more junior counsel. However, a review of her bill of costs shows times where the work claimed was duplicated by counsel or excessive.
39The court also finds that the rates attributed to two of the junior lawyers are excessive. A 2017 call to the bar was billed at $555 per hour – a 2023 call to the bar at $350 per hour.
40Further, the rates charged for two law clerks at $250 per hour and $280 per hour are excessive. In Ahluwalia v. Ahluwalia, 2022 ONSC 2169, the court stated that $125 per hour was the going rate for a senior law clerk when assessing costs.2
41In 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. The father submitted he has paid over $17,000 for his counsel. The bill of costs submitted by the mother is not much more than that.
42The court finds the father can afford to pay the costs that will be ordered, provided he is given reasonable time to pay them.
Part Eight – Conclusion
43An order shall go as follows:
a) The father shall pay the mother’s costs of the motions fixed in the amount of $10,000, inclusive of fees, disbursements, and HST.
b) The father may pay the costs at $1,000 each month, starting on January 1, 2026. However, if he is more than 30 days late in making any temporary child support or costs payment the entire amount of costs then owing shall immediately become due and payable.
Released: December 15, 2025
Justice Stanley B. Sherr
Footnotes
- The respondent was represented by counsel on the motions. She filed his costs submissions on his behalf.
- Also see: Shirley v. Wellington, 2024 ONCJ 128; Thomas v. Charles, 2024 ONCJ 138.