SUPERIOR COURT OF JUSTICE - ONTARIO

NEWMARKET COURT FILE NO.: FC-08-029-558-00
DATE: 20120224

RE: SHANNON DEWAN, Applicant

AND:

TARUN DEWAN, Respondent

BEFORE: McDERMOT J.

COUNSEL:
D. Gunarajah, for the Applicant
R.T. Velanoff, for the Respondent

HEARD: by written submissions

ENDORSEMENT

[ 1 ] On January 20, 2012, I issued my reasons for judgment in the result of a 4 day trial heard during the May, 2012 sittings. The major issue was custody of the children and the lines drawn at trial were fairly simple: The Respondent wished sole custody of the children and Ms. Dewan wished custody to be shared.

[ 2 ] Custody had been shared since shortly after separation, and I ordered that this situation continue. Although I did not order retroactive spousal support, I did order retroactive child support based upon the shared arrangement since separation less payments actually made to the Applicant by Mr. Dewan. I ordered spousal support in the amount of $1,350 per month from June 1 to December 31, 2011; thereafter I ordered spousal support in the amount of $1,200 per month terminating September 1, 2019.

[ 3 ] I provided the parties with the opportunity to make written submissions as to costs. Those submissions have now been provided.

[ 4 ] In the Respondent’s submissions, he has requested that I amend my judgment based upon the Respondent’s income information for 2009; the Respondent’s notice of assessment was not provided prior to or during trial but was contained in the costs submissions of the Respondent. This is not the proper forum to make this request; if the Respondent’s solicitor feels that this matter falls within the factors set out in Rule 25(19) (changing an order which contains a mistake, etc.), the Respondent is free to bring a motion to do so. The Notice of Assessment filed is not part of a sworn affidavit and has no evidentiary foundation. The Applicant has had no opportunity to respond to the request to submit further evidence. For those reasons, I am not considering the Respondent’s request to submit or consider further evidence herein.

[ 5 ] In considering costs, under Rule 24(1) of the Family Law Rules , [^1] costs follow the event, and a successful party is presumed to be entitled to costs. I may take into account unreasonable conduct of either party (Rule 24(4)) and if success is divided, I may apportion costs as appropriate (Rule 24(6)). Under Rule 24(11), in fixing the amount of costs, I may take into account the “importance, complexity or difficulty of the issues” as well as “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”.

[ 6 ] I can also take into account the conduct of the parties to this proceeding: see Rule 24(8) of the Family Law Rules. Under that rule, I am obliged to order full indemnity costs payable forthwith if a party has acted in “bad faith.” Moreover, I may generally take into account under Rule 24(11) “the reasonableness or unreasonableness of a client’s behaviour” in assessing the amount of costs.

[ 7 ] In the event that a party is more successful than his or her offer, I am bound to order costs on a full indemnity basis: see Rule 18(14). Under Rule 18(16), when I am ordering costs, I may further take into account any offers to settle, even if they do not comply with Rule 18(1) as noted above.

[ 8 ] Based upon the trial and the submissions made at trial, the major issue between the parties was custody of the children; equalization issues had been settled and custody of the children was largely determinative of ongoing spousal support and child support. On the major issue, therefore, the Applicant was successful in the result. Custody was shared and retroactive child support was ordered; the only issue that the Applicant was unsuccessful on was retroactive spousal support.

[ 9 ] Although I commented negatively on the Respondent’s refusal to allow the Applicant to travel as well as his witnesses, his conduct was certainly not sufficient to allow for a finding of bad faith under Rule 24(8). Neither can I find unreasonable conduct affecting costs in this matter.

[ 10 ] Therefore, success at trial is determinative of costs. I find that the Applicant enjoyed substantial success in the result at trial. As such, the Applicant is entitled to an award of costs in this matter.

[ 11 ] In this case, it is apparent that the respective Offers to Settle are crucial to the determination of the quantum of costs. The two offers confirm that custody of the children was the major issue preventing settlement between the parties, and the majority of the trial time concerned custody of the children. The Offer to Settle filed by the Applicant and dated May 6, 2011 provided that custody of the children is to be shared; it also does not have a provision for spousal support or for retroactive support, effectively waiving that claim. Equalization was settled prior to trial between the parties. It is apparent to me that on the major issues between the parties, both financial and regarding the children, the Applicant obtained a result at trial better than or equal to the Offer to Settle filed by her. Had the Respondent accepted the Offer to Settle, there would have been no need for a trial, and the Respondent would have had a better result than achieved at trial.

[ 12 ] The offer complies with Rule 18 and accordingly Rule 18(14) is engaged. The Applicant is entitled to costs to the date of the Offer (May 6, 2011) and full indemnity costs thereafter.

[ 13 ] The Bill of Costs of the Applicant does not provide a great deal of clarity as to what costs were incurred after May 6, 2011; all that I can extrapolate from the Bill of Costs is that there is a counsel fee of $6,000 plus HST for trial, which is reasonable considering the fact that this was a 4 day trial. Rule 18(14) dictates that the Applicant is entitled to recovery of this amount ($6,780) on a full indemnity basis as the Offer to Settle is dated May 6, 2011.

[ 14 ] The remaining costs may be assessed by me on a partial or substantial indemnity basis. This was a custody issue and Mr. Dewan appears to have pursued custody of the children based upon his perception of their best interests, however ill advised that might have been. Mr. Dewan was also, to some extent, encouraged by the report of the social worker from the Office of the Children’s Lawyer. I am accordingly going to assess the Applicant’s costs prior to trial on a partial indemnity basis. The bill of costs indicates fees for trial preparation and other matters prior to trial in the amount of $13,875 plus HST (totalling $15,678.75); partial indemnity costs would accordingly be approximately 60% of that amount or $9,400.

[ 15 ] Disbursements claimed are $762.75 inclusive of HST. Particulars of the disbursements were not provided. Although the amount seems reasonable, I require details of the disbursements before I can make a ruling as to whether they are allowable or not. I am therefore disallowing the claim for disbursements based upon lack of particulars provided.

[ 16 ] There is no deduction for the costs award of Wildman J. ordered in this matter on July 16, 2008; Mr. Velanoff quite properly noted that those costs were paid by Ms. Dewan’s former solicitor.

[ 17 ] Accordingly, the Applicant is entitled to costs fixed in the amount of $16,180 [^2] inclusive of HST and disbursements.

McDERMOT J.
Date: February 24, 2012

[^1]: O. Reg 144/99
[^2]: $6,780 + $9,400