SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 46933-12

DATE: 2014-01-23

RE: PHILOMENA RAMIAH, Applicant

AND:

SIMON RAMIAH, Respondent

BEFORE: The Honourable Mr. Justice D.A. Broad

COUNSEL:
H. Gladkykh, for the Applicant
M. Trenholme, for the Respondent

COSTS ENDORSEMENT

[1] The parties have now delivered their submissions on costs, as directed in my oral decision delivered on December 13, 2013. The following is my disposition on costs.

[2] This matter was tried over four days. At the commencement of the trial virtually all matters arising from the breakdown of the marriage remained outstanding, including custody, access, equalization, finalization of arrangements for the matrimonial home, child support, spousal support, retroactive child and spousal support, medical and dental benefits and life insurance. Following the completion of the Applicant's case the parties negotiated settlement of the issues relating to custody and access as well as equalization, including finalization of the arrangements for the matrimonial home. Two sets of Minutes of Settlement on these issues were entered into evidence as exhibits.

[3] The trial continued on the issues of child support, spousal support, retroactive child and spousal support, medical and dental benefits and life insurance.

[4] Is noted that following separation September 4, 2010, the Respondent only made mortgage payments and payment of the municipal taxes and utilities in respect of the matrimonial home but paid no further amounts for the support of the children or the Applicant until an interim order was made on September 26, 2013.

Guiding Principles

[5] Pursuant to subrule 24(1) of the Family Court Rules, the successful party is presumed to be entitled to recover costs. Subrule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer’s rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see C.A.M. v. D.M. (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.) at para 42).

[6] Rule 18 deals with the impact of Offers to Settle which may have been served by the parties on the costs determination. Subrule 18(14) provides that a party who makes a written offer at least seven days before the trial, and obtains an order as favorable as or more favorable than the offer, is entitled, unless the Court orders otherwise, to costs to the date that the offer was served and full recovery costs from that date. Even if subrule (14) does not apply, the Court may, under subrule 18(16), take into account any written offer to settle served by a party, the date the offer was made and its terms.

[7] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty 2009 23111 (ON SC), [2009] O.J. No. 1887 (SCJ) at para. 4, citing Sims-Howarth v. Bilcliffe 2000 22584 (ON SC), [2000] O.J. No. 330 (SCJ)). In the case of Johanns v. Fulford 2010 ONCJ at para. 13 it was held that, for the purpose of Rule 24(1), “success” is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

Analysis

[8] In my view, the Applicant was the successful party and is presumed to be entitled to the costs of the case. I do not agree that there is any element of divided success. The Applicant made an offer for joint custody of the children and to remain in the jurisdiction by an Offer to Settle dated July 19, 2012 and reconfirmed that offer in an Offer to Settle dated December 20, 2012. Both of those offers remained open for acceptance until commencement of the trial. The Applicant's Offers to Settle contained provisions respecting access providing for every second weekend as well as further access as may be agreed upon by the parties.

[9] The Respondent did not provide the value of his pension until the date of trial, despite the fact that it was available to him approximately one month prior. The last financial statement filed by the Respondent was dated February 13, 2012, almost 2 years prior to the trial.

[10] The Respondent, in his Offers to Settle dated July 17, 2012 and January 30, 2013 tied the commencement of his payment of child support to the sale or transfer of the matrimonial home. His most recent Offer to Settle of November 24, 2013 provided for no spousal or child support for the period before August 31, 2013. The Respondent's settlement positions with respect to child and spousal support were clearly unreasonable, and demonstrated a willingness to "play hardball" in the proceeding. The failure of the Respondent to recognize his clear obligation to provide support to his young children is particularly concerning.

[11] In my view, an award of full indemnity costs to the Applicant is appropriate. She was required, by the approach taken by the Respondent, to take this matter through trial in circumstances when it should have been capable of settlement well in advance of trial.

[12] However, I would exclude from the Applicant's claim for costs 18.8 hours associated with the motion which led to the interim support order of September 26, 2013. Pursuant to Rule 24(10) costs shall be dealt with at each step of the proceeding.

[13] Counsel for the Respondent argues that the time claimed by the Applicant on her Bill of Costs is excessive, however, he has not provided his own Bill of Costs or Costs Outline setting forth the amount of time spent by him and by previous counsel for the Respondent. This would have assisted in gauging the Respondent's reasonable expectations respecting his liability for costs.

Disposition

[14] It is therefore ordered that the Respondent to pay to the Applicant costs fixed in the total sum of $29,692.61, comprised of fees in the sum of $25,056, HST on the fees in the sum of $3,257.28 and disbursements and HST on assessable disbursements in the sum of $1,379.33.

[15] This amount is payable immediately and shall be treated as child and spousal support for the purpose of enforcement.

D.A. Broad, J.

Date: January 23, 2014