Court Information

Date: July 9, 2019

Court File: 795/17

Ontario Court of Justice 7755 Hurontario Street Brampton, Ontario

Justice: L.S. Parent

Parties

Applicant: Gurinder Kaur Randhawa Counsel: Archana Medhekar

Respondent: Iqbal Singh Randhawa Counsel: Murray Teitel

Endorsement

The Issue

[1] On April 30th, 2019, I granted Ms. Randhawa's motion to lift a stay of proceedings arising as a result of a Divorce Application being commenced by Mr. Randhawa in the Superior Court of Justice and for temporary spousal support.

[2] Counsel on behalf of both parties provided written submissions as ordered by June 4th, 2019 as ordered.

[3] In written submissions, Ms. Randhawa seeks her costs on a full recovery basis in the amount of $11,053.80 to be paid by Mr. Randhawa within thirty days.

[4] In written submissions, Mr. Randhawa seeks an order that costs of $2,000.00, payable in the cause, be ordered.

Authorities

[5] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, set out that modern costs rules are designed to encourage three fundamental purposes, namely:

a) to partially indemnify successful litigants;

b) to encourage settlement; and

c) to discourage and sanction inappropriate behaviour by litigants.

[6] Rule 2(2) of the Family Law Rules (FLR) adds a fourth fundamental purpose, namely to ensure that cases are dealt with justly.

[7] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as am. provides that cost orders are in the discretion of the court. Rule 24 of the FLR provides a framework for awarding costs for family law cases.

[8] Rule 24(1) creates a presumption of costs in favour of the successful party of a motion. Although consideration of success is the starting point in determining costs, this presumption does not, however, require that the successful party always be entitled to costs, especially in circumstances where the successful party behaved unreasonably.

[9] An award of costs is subject to the factors listed in Rule 24(12), Rule 24(4) relating to unreasonable conduct of the successful party, Rule 24(8) relating to bad faith, Rule 18(14) relating to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, para. 94.

[10] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs. These are:

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

b. any other relevant matter.

[11] The Ontario Court of Appeal has stated in its decision in Beaver v. Hill, 2018 ONCA 840, that the court should approach the exercise of its discretion in determining costs in family law matters on the basis of reasonableness and proportionality and that it is an error in law to apply full recovery of costs unless findings support such an award.

[12] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, such as where a party has behaved unreasonably, in bad faith or has exceeded an offer to settle under Rule 18(14).

[13] Rule 24(8) FLR discusses the cost consequences for a party who has acted in bad faith. Specifically the rule provides 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."

Analysis

[14] In reviewing the submissions filed on behalf of the parties, I have applied the above-stated principles.

[15] At paragraph 122 of my April 30th, 2018 decision I found that Ms. Randhawa was the successful party on the motion. I further find, therefore, that she is presumed to be entitled to her costs.

[16] Submissions made on behalf of Mr. Randhawa put forward the position that Ms. Randhawa was unreasonable in her behaviour thereby preventing her from relying on the presumption in Rule 24(1).

[17] Specifically, the submissions are that Ms. Randhawa was unreasonable:

a) in opposing, on November 30th, 2018 being the original date scheduled for the hearing of the motion, a request by Mr. Randhawa for the broadening of the scope of evidence to be submitted on his behalf on the substantive motion; and

b) that the submissions on costs filed on behalf of Ms. Randhawa exceeded the limits outlined in paragraph 123 of my April 30th, 2019 decision and therefore the determination of costs should be limited to submissions made on behalf of Mr. Randhawa only.

[18] After considering these submissions, I find that Ms. Randhawa did not engage in any behaviour which removes her entitlement to her costs pursuant to Rule 24(1).

[19] My endorsement dated November 30th, 2018 is clear that leave was ultimately granted permitting additional affidavits to be filed on behalf of Mr. Randhawa as the time taken to hear submissions on this request used the entire time reserved for the hearing of the substantive motion seeking the lifting of the stay of proceedings and spousal support. I do not find that the opposition by Ms. Randhawa to the request for the filing of additional evidence not previously requested was unreasonable in the circumstances.

[20] Counsel on behalf of Ms. Randhawa acknowledges that the submissions filed on behalf of her client exceeded the ordered length. Counsel provided an explanation as to why this was done.

[21] Although the record is clear that the submissions filed on behalf of Ms. Randhawa went beyond my order, I do not accept submissions that this behaviour amounts to a threshold of unreasonableness so as to consider the issue of costs without submissions by the successful party. In my view, such a request is unreasonable. In order to address this situation, I find that it is appropriate to disregard any submissions and time spent on matters beyond the terms of my April 30th, 2019 order.

[22] Submissions on behalf of Mr. Randhawa also reference offers to settle.

[23] A review of the documents identified as "offers to settle" in the submissions made on behalf of Mr. Randhawa confirm that none of these documents comply with the requirements of Rule 18 FLR. Accordingly, these documents do not result in any consequences under Rule 18. I further find that even if these documents were to be considered as offers to settle, the result achieved by Ms. Randhawa on the motion exceed the terms offered.

[24] Submissions filed on behalf of Mr. Randhawa emphasizes that the costs requested are not reasonable and proportionate to the issues before the court.

[25] I have reviewed the Bill of Costs submitted on behalf of Ms. Randhawa.

[26] I am not prepared to address any costs outside of the motion and the appearance on November 30th, 2018 given that paragraph 121 of my April 30th, 2019 decision limited the issue of costs to these events. Accordingly, I have not considered any dockets submitted outside of this boundary.

[27] My decision dated April 30th, 2018 did find that Mr. Randhawa acted in bad faith in initiating the Divorce Application in the Superior Court of Justice.

[28] Rule 24(8) of the FLR provides 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." Consideration of this mandatory approach has been taken into account in the assessment of costs limited only to the determination of the lifting of the stay request only by Ms. Randhawa.

[29] I agree with counsel for Ms. Randhawa's at paragraph 11 of her submissions that the nature of the retainer of counsel does not automatically result in a lower recovery of costs.

[30] Counsel on behalf of Ms. Randhawa sought disbursements and HST of $996.80. I do not find that these disbursements are reasonable given the absence of detail associated with them. Accordingly, I have reduced these disbursements to a reasonable amount of $250.00.

Result

[31] Given the above, I find that Mr. Randhawa is ordered to pay costs, inclusive of fees, disbursements and HST, in the amount of $7,000.00. These costs are awarded for fees, disbursements and HST for the November 30th, 2018 appearance and for the February 19th, 2019 motion.

[32] Costs for all other appearances remain to be considered in the overall resolution of this matter on a final basis at trial or through settlement.

[33] Accordingly, I order Mr. Randhawa to pay costs in the amount of $7,000.00, payable to "Archana Medhekar in trust for Legal Aid Ontario" by certified cheque, bank draft, money order or solicitor's trust cheque. The costs award shall be paid by a payment of $3,000.00 immediately pursuant to Rule 24(8) FLR and a further payment of $4,000.00 by August 15th, 2019.

[34] This costs order is, in my view, reasonable and proportionate to the issues before the court for determination, which were complex and important in nature.

Justice L.S. Parent