Court File and Parties
Court File No.: 198/11 Date: 2012-09-07
Ontario Court of Justice
Re: Sadrudin Chatur – Applicant and Damiana De Los Reyes - Respondent
Before: S. O'Connell
Counsel: Sadrudin Chatur, in person Robert A. Otto, for the Respondent
Costs Endorsement
Background
[1] The Respondent, Ms Damiana De Los Reyes, is seeking costs in the amount of $16,712.50 for the time spent on the motions which were argued before me and for which a decision was released on May 31, 2012.
[2] Both parties brought a number of motions, which were all heard before me on March 2, 2012. The Applicant, Mr. Sadrudin Chatur brought a motion for a finding that the Respondent was in contempt of the access provisions of the court order dated July 19, 2011, specifically, by failing to bring the child to access visits on August 13th and August 20th, 2011. Mr. Chatur brought a further motion seeking an order that Ms De Los Reyes comply with the access provisions of the court order dated September 13, 2011 and for an order requiring police assistance to enforce this order. Mr. Chatur also sought an order for reimbursement of the taxi expenses that he incurred to facilitate his access.
[3] After hearing submissions and for written reasons delivered, I made the following order:
Mr. Chatur's motion for contempt is dismissed.
Mr. Chatur's motion for reimbursement of taxi expenses is dismissed, without prejudice to renewing this claim at the conclusion of these proceedings.
Ms De Los Reyes's motion to strike Mr. Chatur's pleadings is dismissed.
Pending the receipt of the Children's Lawyer's report and/or recommendations, Mr. Chatur's access to the child shall be changed from the Amazing Playland in Burlington to the Busy Bodies Indoor Playland in Oakville, Ontario at the same time and date specified in the court order dated September 13, 2011.
Mr. Chatur is prohibited from bringing any further motions without leave of the court, such leave to be requested by way of a form 14b motion in advance and served upon Ms De Los Reyes.
Mr. Chatur shall forthwith deliver any and all of Ms De Los Reyes's personal documents regarding her Human Rights Complaint still remaining in his possession to Ms De Los Reyes' counsel.
Commencing May 1, 2011, Mr. Chatur shall pay temporary child support in the amount of $270.00 based on an imputed income of $30,000.00. Temporary arrears are fixed at $3,510.00 and shall be payable at a rate of $50.00 per month, commencing June 1, 2012. However, if Mr. Chatur is more than 30 days late in making these payments or the ongoing support payments set out in this temporary order, then the entire amount of arrears shall immediately become due and payable.
A Support Deduction Order shall issue.
Costs Submissions
[4] Mr. Otto, on his client's behalf, filed written submissions on July 4, 2012. Ms De Los Reyes submits that she was successful with respect to all of her motions, with one exception, and that she was further successful in resisting the applicant's motions, which were dismissed. She further submits that Mr. Chatur's refusal to comply with court orders, abusive litigation tactics, including the bringing of multiple motions warrants costs on a substantial indemnity basis. She submits that by choosing to be self-represented throughout these proceedings, except for one motion in December of 2011, Mr. Chatur has created a significant litigation disadvantage for Ms De Los Reyes that can only be remedied by a significant cost award against Mr. Chatur.
[5] Mr. Chatur did not formally respond to the costs submissions prepared by Ms De Los Reyes, however, he disputes that he owes any costs for these motions and submits that he has no ability to pay costs.
The Law
[6] Rule 24 of the Family Law Rules, O. Reg. 114/99, governs the determination of costs in family law proceedings and the sections relevant to the circumstances of this case are as follows:
24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party's own costs or ordered to pay all or part of the unsuccessful party's costs.
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
(6) If success in a step in a case is divided, the court may apportion costs as appropriate.
(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice.
(8) 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.
(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.
(11) A person setting the amount of costs shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party's behaviour in the case;
(c) the lawyer's rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[7] Rule 18 of the Family Law Rules provides the following regarding full recovery of cost in family law proceedings:
18 (14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, 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 favourable as or more favourable than the offer.
18 (15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14).
18 (16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.
[8] In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at paragraph [8], the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:
(1) to partially indemnify successful litigants for the cost of litigation;
(2) to encourage settlement; and
(3) to discourage and sanction inappropriate behaviour by litigants.
[9] Rule 24 created a new framework for determining costs in family law proceedings. The presumptive nature of Rule 24 has significantly curtailed the court's discretion regarding costs in family law proceedings and absent compelling circumstances or the exceptions set out in the rule itself, costs are generally awarded to the successful party. The Ontario Court of Appeal in C.A.M. v. D.M., 67 O.R. (3d) 181 held that while the Rules have not completely removed a judge's discretion, the Rules nonetheless circumscribed the broad discretion previously granted to the courts in determining costs. Courts must not only decide liability for costs, but also the amount of those costs.
[10] However, the court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher et al. v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291, the 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.
Analysis
[11] Ms De Los Reyes was more successful than Mr. Chatur on the motions before me. She was not entirely successful as I dismissed her motion to strike Mr Chatur's pleadings and I imputed income for child support at a lower amount than what she was seeking. Nevertheless, Ms De Los Reyes was entirely successful on five of the seven motions before me. Costs should therefore be apportioned in Ms De Los Reyes's favour.
[12] However, in my view, Ms De Los Reyes is not entitled to costs on a substantial indemnity basis. A party is not generally entitled to full recovery costs unless there has been bad faith under Rule 24 of the Family Law Rules or Rule 18 applies.
[13] In this case, neither party exchanged offers to settle to trigger a substantial indemnity award. The failure to serve an offer to settle is an important factor that I should take into consideration in assessing costs, particularly given the requirements of Rule 18 of the Family Law Rules and the overall objectives and Rule 24(5) of the Family Law Rules, which provides that the failure to make an offer to settle is a factor that the court must consider in determining whether a party acted reasonably. See J.V.M. v. F.D.P., 2011 ONCJ 616.
[14] "Bad faith" is not defined under sub rule 24(8). The case law is clear that bad faith is something significantly more than unreasonable litigation behaviour. In one of the leading cases, C.S. v. M.S., Justice Craig Perkins explained that bad faith means the following:
"In order to come within the meaning of bad faith in sub rule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues, or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent."
[15] Although I have previously made findings in this case that certainly indicate that Mr. Chatur has exhibited bad faith, I have addressed Mr. Chatur's conduct in a separate ruling wherein I ordered Mr. Chatur to post $25,000.00 for security for costs before he takes any further steps in these proceedings. In my view, it would be unfair to make a cost award against Mr. Chatur on a substantial indemnity basis because of his conduct as I have addressed his conduct in a separate ruling regarding security for costs.[1]
[16] Partial indemnity costs have been defined as about sixty percent of total costs; and are generally the norm. See Kimpton v. Ghoura, 2007 CarswellOnt 1927 (SCJ); Biant v. Sagoo, 2011 CarswellOnt 3315 (SCJ); Burke v. Burke, 2011 CarswellOnt 3051 (SCJ); Patton-Casse v. Casse, 2011 CarswellOnt 7090 (SCJ). A partial indemnity award in this case would therefore be approximately $10,000.00, assuming that I accept that all of the time spent by Ms De Los Reyes' lawyer for these motions was reasonable.
[17] Although Mr. Otto is a very experienced family lawyer and his hourly rate is reasonable, the costs sought for these motions seem somewhat excessive. Having regard to my previous order in the amount of $25,000.00 for security for costs against Mr. Chatur, and for the factors that I have raised above, in my view, the costs of the motions which were argued before me on March 2, 2012, should be fixed at $3,500.00.
Order
[18] In conclusion, Mr. Chatur to pay costs fixed in the amount of $3,500.00 for the motions above, to be payable within 30 days of the date of this order, or at a rate of $250.00 per month, commencing October 1, 2012.
Justice Sheilagh O'Connell
DATE: September 7, 2012