DATE: July 3, 2024 COURT FILE NO. D42958/22
ONTARIO COURT OF JUSTICE
B E T W E E N:
THUSHAJINI JEEVANANTHAM also known as JENNY JEEVANANTHAM
ISAAC BIRENBAUM, for the APPLICANT
APPLICANT
- and -
MARTHIRAJ THIRUCHELVAM also known as SANJAY THIRUCHELVAM
LEMOORIYA ANANTHAN, for the RESPONDENT
RESPONDENT
HEARD: IN CHAMBERS
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
[1] On October 31, 2023, the court released its written reasons for decision arising from a motion by the applicant (the mother) to strike the respondent’s (the father’s) Answer/Claim, and her requests for temporary child support, a restraining order and further financial disclosure. See: Jeevanantham v. Thiruchelvam, 2023 ONCJ 487.
[2] During that motion, the father consented to a temporary restraining order and to an order to produce financial disclosure. The court did not strike the father’s Answer/Claim. However, it made enforcement orders pursuant to subrule 1 (8) of the Family Law Rules (all references to rules in this decision are to the Family Law Rules). It imputed the father’s annual income at $60,000 for support purposes and ordered him to pay temporary child support of $556 each month, starting on August 1, 2022.
[3] The court found that the mother was the successful party on the motion. She was given until November 14, 2023 to make written costs submissions.
[4] The mother did not make costs submissions by this deadline.
[5] The mother made written costs submissions to the court on May 23, 2024. She sought her costs for the October 30, 2023 motion in the amount of $11,300. [^1]
[6] The father submits that the mother has made her costs claim too late and it should be disallowed, or, in the alternative, significantly reduced. He also submits that the claim for costs is excessive.
Part Two – Analysis
[7] Subrule 24 (10) 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 any costs or expressly reserve the decision on costs for determination at a later stage in the case.
[8] There are good reasons for this subrule, including:
a) Successful litigants should be promptly indemnified for their costs.
b) The court wants to discourage unreasonable behaviour and positions. On temporary motions, a costs order that is made in a timely manner often changes behaviour and leads to resolution. The costs of unreasonable litigation behaviour become very real to the litigants.
c) The parties need to know where they stand financially to assess what legal steps they can afford moving forward. It can be unfair to make a costs claim after a litigant has been led to believe that costs are not being sought and where they have conducted litigation and incurred legal fees based on that belief.
d) Courts should discourage the possibility of litigants using the threat of a late costs claim as leverage in settlement negotiations. [^2]
[9] This is why courts set timelines for making costs submissions.
[10] In P.I. v. R.O., 2023 ONCJ 4, the successful party on a temporary motion did not seek costs within the timelines set out by the court. That party was also successful at trial, made costs submissions and attempted to seek costs for the prior motion. This court denied costs for that step, writing at paragraph 34:
[34] Here, the father is seeking costs for a step in the case (the temporary motion) where costs were addressed by the court in its decision. The father was given the opportunity to make costs submissions. He chose not to seek them. While his reasons were understandable, it is not just to order costs for that step now, just because the father is unhappy that the mother did not change her approach to the case and he regrets not having sought costs when permitted. The mother is entitled to the litigation certainty that if costs were not claimed by the father when permitted, that he could not hold them in reserve until the end of the case.
[11] However, despite the importance of making costs submissions within the timelines set out by the court, the court has discretion to order costs when they are made beyond those timelines. Subrule 24 (11) provides that the failure of the court to order costs in relation to a step in a case does not prevent it from awarding costs in relation to the step at a later stage in the case.
[12] In Berge v. Soerensen, 2020 ONCJ 265, Justice Roselyn 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.
[13] None of these factors apply to this case.
[14] However, this court adds to Justice Zisman’s list that costs of a prior step may be awarded to ensure that cases are dealt with justly under subrule 2 (2). This is one of the four fundamental purposes of costs orders, as set out by the Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867. [^3]
[15] So, what order is just in the circumstances of this case?
[16] There are factors in favour of awarding some costs to the mother, being:
a) She was the successful party on the motion and the court found she was entitled to costs.
b) She paid $5,600 for a private investigator. The father had represented to the court and the mother he was not working because of his immigration status. The private investigator provided evidence that the father was operating a restaurant. This evidence was essential to the court imputing annual income of $60,000 to him for the purpose of assessing his child support obligations. The court wrote the following at paragraph 56 (a) of its decision:
The mother filed a private investigator’s report. In short, the father was operating a restaurant, all day, from September 21 to 23, 2023, despite his claim that he was not working.
The father’s explanation was fantastical. He claimed that on those particular dates, his friend, who owned the restaurant, had asked him to do him a favour and operate it. He said that his brother has subsequently bought that restaurant and has closed it for renovations.
What are the odds that the father would be asked to do this favour for his friend only on the days that the private investigator saw him working at the restaurant? The odds are astronomical. The father’s evidence is not credible.
[17] There are also factors militating against making any costs order, being:
a) The court routinely grants timely requests for extensions to file costs submissions. Sometimes mistakes are made and deadlines are missed. The court appreciates this. However, this was not a timely request. It was made over six months after the deadline set by the court.
b) The mother was attuned to the costs deadline. She asked the father to extend the deadline to November 20, 2023. The father reasonably agreed to this request. The mother still did not make her submissions.
c) The parties attended at court on February 27, 2024. The mother did not raise the issue of costs for the October 30, 2023 motion at that appearance. [^4]
d) The mother brought another motion to strike the father’s Answer/Claim on April 15, 2024. This spurred the father to comply with the court’s orders. The mother’s motion was dismissed. The mother sought her costs for that motion and the court ordered the father to pay her costs fixed at $2,500. Again, the mother did not raise the issue of costs for the October 30, 2023 motion at that appearance.
e) The parties attended at court on May 14, 2024 and reached a temporary consent on parenting time for the father. The mother did not raise the issue of costs for the October 30, 2023 motion.
f) It is understandable why the father believed that the mother had chosen not to pursue her costs for the October 30, 2023 motion.
[18] The mother provided a partial explanation for her delay in making costs submissions. She informed the court that her prior lawyer failed to make the costs submissions on her behalf within the timelines. Her present counsel, when he was retained in February 2024, asked her former counsel to make these submissions. She did not do this. Her present counsel then asked for particulars and information from her former counsel to make the costs submissions and this was not provided.
[19] Even if the court accepted the mother’s narrative as accurate it would only explain some of the delay and why the costs issue wasn’t raised at court on February 27, 2024. However, by the April 15, 2024 and May 14, 2024 court appearances, the mother should have raised the costs issue with the court. At the very least, she should have put the father on notice that costs were still being claimed for the October 30, 2023 motion. She did not do this.
[20] The mother submitted she is in receipt of legal aid, she sought direction from Legal Aid Ontario about what to do about the costs of the October 30, 2023 motion and Legal Aid Ontario required her to seek them. However, this is not a factor in making this decision, as there is no indication this led to her delay in making costs submissions.
[21] The receipt of legal aid is not a factor in costs decisions. It is not a factor in determining what rate can be claimed for legal fees. See: Ramcharitar v. Ramcharitar (2002), 62 O.R. (3d) 107 (Ont. SCJ), Holt v. Anderson, [2005] O.J. No. 5111 (Div. Ct.); Loncar v. Pendlebury, 2015 ONSC 4673; S.G. v. A.S., 2015 ONSC 1882; F.K.T. v. A.A.H., 2023 ONCJ 185.
[22] Courts have also rejected requests to have costs orders made payable to Legal Aid Ontario. See: John v. Vincente, 2016 ONCJ 78; S.O. v. E.A., 2017 ONCJ 564. Silva v. Queiroz, [2016] O.J. No. 5243 (OCJ). If the court should not consider the receipt of legal aid services when assessing costs, it follows that the court should not involve itself in the internal relationship between a litigant and legal aid. See: Tahir v. Khan, 2019 ONCJ 781; Johnston v. Johnston, 2020 ONSC 702.
[23] It is immaterial to the court if Legal Aid Ontario is directing a litigant to seek costs. That is a matter between Legal Aid Ontario, the litigant and at times, the litigant’s counsel.
[24] The court finds it just, in the circumstances of this case, to disallow the mother’s claim for fees. The court will indemnify her for her disbursement for the private investigator. It would not be just to relieve the father from paying this expense when it was incurred due to his misrepresentation to her and the court that he was not working. The court repeats what it recently wrote at paragraph 68 of Lynch v. Lewis, 2024 ONCJ 279:
To change behaviour, courts must make orders that send clear and strong messages to support payors, such as the father, that such conduct will result in significant financial consequences for them. This will not dissuade all dishonest payors. However, increasing the risks for such conduct may dissuade many more of them.
[25] The father claimed that the mother’s disbursement for the private investigator was excessive. The court disagrees. The mother produced the receipt for the investigator. The father created the need for this expense due to his dishonesty. It is a reasonable and proportionate disbursement in these circumstances.
[26] The father should have reasonably expected to pay these costs. See: Arthur v. Arthur, 2019 ONSC 938. The court also finds that the father can afford them.
Part Three – The Order
[27] An order will go as follows:
a) The father shall pay the mother the sum of $5,650 for her costs of the October 30, 2023 motion. This is payment towards her disbursements and HST. The court is not ordering costs for her fees.
b) The father may pay these arrears at $500 each month, starting on August 1, 2024. However, if he is more than 30 days late in making any payment the entire amount then owing shall immediately become due and payable.
Released: July 3, 2024 _____________________ Justice S.B. Sherr
Footnotes
[^1]: The mother now has different counsel from the counsel who acted for her on the motion. [^2]: There is no evidence this is happening in this case. [^3]: The other three purposes are: (1) to partially indemnify successful litigants; (2) to encourage settlement; and; (3) to discourage and sanction inappropriate behaviour by litigants. [^4]: The mother was represented by her new counsel at this appearance and at all subsequent court appearances.