CITATION: Wanasingha v. Weerasekera, 2015 ONSC 2511
COURT FILE NO.: FS-14-79790-00
DATE: 20150417
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NIROSHA WANASINGHA
M. Stangarone, for the Applicant
Applicant
- and -
JUDE DINESH CEDRIC WEERASEKERA
H.K. Juriansz, for the Respondent
Respondent
HEARD: February 11, 2015
ENDORSEMENT RE: COSTS FOR MOTIONS HEARD JANUARY 31, 2014, JULY 11, 2014 and FEBRUARY 11, 2015
MacKENZIE J.
[1] By Endorsement dated February 11, 2015, I dismissed the respondent’s motion to set aside the without notice Orders of Ricchetti J. dated January 31, 2014. These orders stipulated, among other things, interim exclusive possession of the matrimonial home in favour of the applicant; interim sole custody of the children of the marriage in favour of the applicant; interim without prejudice child support of $2,400 monthly payable to the applicant by the respondent pending full disclosure by the respondent; proper determination of his income for support purposes; and non-depletion and preservation of the respondent’s property. These Orders further stipulated that the motion materials and the Orders dated January 31, 2014 were to be served by email on the respondent; costs were reserved. Such service was made on or about February 4, 2014.
[2] A Settlement Conference was scheduled for October 31, 2014, some nine months later. The respondent was not present, though his counsel attended but failed to serve and file a Settlement Conference brief. Seppi J. who presided at the Settlement Conference found the respondent thwarted the process [of the Settlement Conference] by leaving the country when the conference date was known to him. Seppi J. awarded costs of the aborted conference to the applicant, fixed at $2,000.
[3] The applicant seeks costs on a full recovery (indemnity) basis, comprising:
(a) her costs on the long motion heard by me on February 11, 2015;
(b) her costs of the without notice motion heard on January 31, 2014 (which costs were reserved);
(c) her costs of the motion to set aside the Order of Ricchetti J. dated January 31, 2014, which motion was heard on July 11, 2014, (the costs being reserved); and
(d) her costs in preparing the submissions of costs.
[4] In aid of her submissions, counsel has served and filed a detailed Bill of Costs. The Bill of Costs sets out the time spent and the nature of the work by two lawyers and two law clerks from January 22, 2014 through February 11, 2015. The value of the time expended by the personnel involved is set forth as fees of $22,366.00 on a full recovery (indemnity) basis, $17,892.80 on a substantial indemnity basis, and $13,419.60 on a partial indemnity basis. The total costs (fees plus disbursements and applicable taxes) are:
Full indemnity - $24,984.15;
Substantial indemnity - $20,093.18; and
Partial indemnity - $15,202.21.
[5] Counsel for the applicant refers to Family Law Rule 24 governing costs in family law matters. Counsel contends that the applicant as the successful party has the benefit of the presumption of an award of costs in her favour but also argues that the scale of such an award of costs in this case must take into account the alleged bad faith and unreasonable conduct of the respondent throughout the period in question.
[6] In this regard, counsel notes the terms of Rule 24.(8) which states:
Rule 24(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.
[7] Counsel cites Bourgeois v. Bourgeois 2011 ONSC 345 in which McGee J. set out the following definition of “bad faith” for the purposes of Rule 24(8):
To come within the meaning of bad faith in subrule 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.
[8] As well, counsel refers to Reisman v. Reisman [2007] O.J. No. 5538 (S.C.J.), a family law case in which the court found that the respondent husband “had failed to make complete, frank and early disclosure and that this required the applicant wife to come to court many times which should not have been necessary: para 1”. The court in Reisman concluded that the respondent’s conduct amounted to bad faith and applied Rule 24(8).
[9] Even if the respondent’s conduct and actions failed to meet the definition of bad faith in Rule 24(8), the applicant contends that the respondent’s conduct and actions were unreasonable within the meaning of Rule 24(5)(a) and (b). Counsel for the applicant in this regard relies on my findings set out in the Endorsement of February 11, 2015, in particular that:
(a) the respondent failed to move on an expeditious basis to set aside the January 31, 2014 without notice orders after being served with notice of the same on or about February 4, 2014; and
(b) the financial disclosure of the respondent inherent in paragraph 4 of the January 31, 2014 orders up to February 11, 2015 had not been complete, detailed and timely.
[10] The applicant further addresses, in the context of Rule 24(5)(b), the reasonableness of the respondent’s offer to settle the motion dated February 9, 2015 (but served after business hours (6:52 p.m.) on February 10, 2015, the evening preceding the hearing of the motion on February 11, 2015. The substance of this offer was that the January 31, 2014 orders be set aside, applicant’s sole custody award would be converted to primary residence and that the respondent pay child support on the unsupported allegation or position that his income was $30,000 per annum.
[11] In light of the respondent’s failure to properly and on a timely basis discharge his disclosure obligations in accordance with the requirements of the January 1, 2014 orders, the child support component of his offer to settle could hardly be characterized as reasonable: the applicant in not accepting his offer could hardly be described as acting unreasonably.
[12] In sum, the applicant seeks a full recovery (indemnity) costs award against the respondent, as set out above.
[13] The respondent’s position on costs is that his “behaviour throughout this proceeding has been entirely reasonable” and that the “applicant’s position is unreasonable, unsupported and just another example of the zealous litigious behaviour of the applicant”. Counsel for the respondent contends that the respondent’s behaviour should in no way attract an award of costs on a full recovery basis.
[14] Counsel further contends that “the respondent has been entirely transparent and has utilized his best efforts to fulfill his [financial] obligations…”
[15] I reject these submissions: they are essentially an attempt to re-argue the issues on the motion.
[16] The respondent argues that the “costs of the motions heard on January 31, 2014 should be dealt with at one and the same time as a judicial determination is made concerning the respondent’s income. It is only at that time that a fair determination can be made as to whether there has been misrepresentations made by the applicant at the ex-parte motions before Justice Ricchetti [January 31, 2014] and whether costs should be payable and by whom”.
[17] I reject this argument. Under Rule 24(1), it is open to the court to make an award of costs to a successful party as such costs relate to a motion. The costs arising out of the January 31, 2014 orders resulting from that motion and the July 11 and 29, 2014 orders were all reserved. The court on the February 11, 2015 return date was empowered to deal with those costs plus the costs of the motion on February 11, 2015, all on February 11, 2015; see Rule 24(10) – costs to be decided at each step.
[18] The respondent’s ultimate position on costs is that if an award of costs is made to the applicant, it should be on a partial indemnity basis. In this aspect, counsel for the respondent challenges the time allotted for travel and waiting to be heard and the counsel/clerk’s fees charged. The factors to be considered in settling costs are set out in Rule 24(11). Having regard to these factors, I conclude there is no merit in these challenges by the respondent.
[19] Having reviewed the submissions of the parties referable to the applicant’s Bill of Costs, I am persuaded that the costs award to the applicant should on a full recovery (indemnity) basis. I fix these costs at $22,000.00, all inclusive. This award shall constitute a charge against the interest of the respondent in his share of the net proceeds of sale of the matrimonial home, municipally known as 17 Pine Island Way, Brampton, Ontario and shall be payable therefrom forthwith upon completion of the sale in question.
[20] Order accordingly.
MacKenzie J.
Released: April 17, 2015
CITATION: Wanasingha v. Weerasekera, 2015 ONSC 2511
COURT FILE NO.: FS-14-89790-00
DATE: 20150417
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NIROSHA WANASINGHA
Applicant
- and –
JUDE DINESH CEDRIC WEERASEKERA
Respondent
ENDORSEMENT RE: COSTS FOR MOTIONS HEARD JANUARY 31, 2014, JULY 11, 2014 and FEBRUARY 11, 2015
MacKenzie J.
Released: April 17, 2015