Chitsabesan v. Yuhendran, 2015 ONSC 769

COURT FILE NO.: FS-13-19051

DATE: February 2, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO

APPLICANT: Janani Nicola Chitsabesan

RESPONDENT: Ajanthan Yuhendran

BEFORE: Mr. Justice Perkins

LAWYERS: Ian Mang, for the applicant mother (respondent in appeal)

Jacqueline M. Mills, for the respondent father (appellant)

HEARD: by written submissions

ENDORSEMENT

[1] This is the decision on the costs of the appeal from the Ontario Court of Justice in this case, heard on September 8, 2014. Both parties filed written costs submissions. Neither asked for an oral costs hearing.

[2] The appeal by the father succeeded in part and the case was sent back to the Ontario Court of Justice for clarification and amendment of the terms of that court’s final order. The father did not succeed in his primary goal of having the child returned from England to live in Canada.

[3] The father seeks his costs of the appeal. His lawyer’s bill outlines costs totalling $26,705. His submission does not specify what amount he thinks he should recover, except by implication – it gives a “partial indemnity” figure of $21,364. The father’s arguments are that he succeeded on his secondary goal of getting the order corrected, that the mother failed in her attempt to have the appeal dismissed, and that the appeal was made necessary by the mother’s refusal to agree to terms of the OCJ order that the trial judge considered to be not only reasonable, but also improvements over what she had put into her decision.

[4] In response, the mother points out that the father was trying on the appeal to overturn a final custody order and particularly to overturn the order that allowed the mother to relocate to England. The father also had alleged trial unfairness amounting to grounds for reversal of the trial decision, on which point he did not succeed. As for the father’s success in having the case sent back to the OCJ to correct or clarify the order, the mother refers to the trial judge’s decision, which (at para 124) made the unusual provision for matters of “variations or enforcement” to come back to the trial judge for a year after “the conclusion of all the court matters here.” She says the father could and should have gone back to the trial judge. She asks for total costs of $34,400 “substantial indemnity” or $26,900 “partial indemnity”.

[5] In reply, the father says that he tried to go back to the trial judge to get the order corrected, but the trial judge refused (incorrectly, as I have determined) to accept his proposed wording. His only effective remedy was this appeal.

[6] The father’s characterization of the mother’s success as being only on a technical matter is incorrect. This appeal was a full blown attack on the substance of the custody and relocation order and on the fairness of the trial itself. The mother had to mount a defence of both the merits of the decision and the procedure followed by the trial judge, and she succeeded on both fronts. While the precise terms of access under the OCJ order were an important focus, they were not the source of most of the work done and the time spent on the appeal. There was divided success on the appeal, but the mother’s success was greater in light of the issues involved, the work done, and the time spent. She is entitled to some costs as a result.

[7] The mother’s bill includes 69 hours of lawyer time, covering preparation for the appeal, attendance, reporting to the client, and costs submissions. The hours spent and rates are reasonable. Given the mother’s success on the more substantial and more important issue, I award her costs in the amount of $13,500 including disbursements and taxes. The costs are payable within 60 days.

Perkins J.

Date: February 2, 2015