CITATION: Singh v. Gupta, 2016 ONSC 5187
COURT FILE NO.: 38626/16
DATE: 2016 08 18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AMINDER SINGH
Sarah Boulby, for the Applicant
Applicant
- and -
NAMITA GUPTA
Philip Viater, for the Respondent
Respondent
In Writing
ENDORSEMENT RE: COSTS
EMERY J
[1] The motion of the applicant father, Aminder Singh, for interim custody or parenting of the child, Aditya, age 7 was heard on July 4, 2016 as a long motion. Other issues on the motion relating to the matrimonial home were resolved on consent by the time the motion was heard.
[2] I made an order for a shared parenting regime on the motion that more resembled the model proposed by the respondent mother than that which had been proposed by the applicant father. I have now received submissions on costs from each of the parties following that result.
[3] The respondent mother had submitted an offer to settle and a bill of costs along with her written submissions. The respondent mother relies upon Family Law Rule 24 to seek costs as the successful party, and on Family Law Rule 18 because of the offer to settle. The respondent mother seeks costs totalling $38,966 for the motion on a full recovery basis.
[4] It is significant to note that the respondent mother did not bring a motion of her own. The costs she claims are all in respect of opposing the motion of the applicant father.
[5] The applicant father opposes those costs entirely. He seeks a no costs order on the basis that the result was divided, or that the costs be reserved to the trial judge. In any event, the applicant father submits that the costs claimed by the respondent mother are excessive. He argues that the respondent mother is seeking her costs for all prior steps in the case as well as for the motion. The applicant father has provided a bill of costs for comparison purposes that show his costs range from $20,757 on a partial indemnity basis, to $29,746 for full recovery.
[6] Every costs order involves a consideration of entitlement, scale and quantum. Entitlement requires the court to determine the proper party to award costs, leaving the other party to pay them. Scale refers to the level of costs to be paid, in order to reimburse the party awarded costs for legal fees and out-of-pocket expenses on a partial indemnity, substantial indemnity or full recovery basis. The quantum of those costs calls upon the court to set an actual amount for the costs one party is to pay the other.
[7] In a family law case, the court relies upon Family Law Rule 18 where an offer to settle that meets the requirements of the rule has been served, and Family Law Rule 24 with respect to all other aspects of making a costs award. Family Law Rule 24(1) provides a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. In order to determine which party was the successful party, it is often important to determine if a party achieved a result on an issue that meets or exceeds one or more terms of an offer to settle served in accordance with Family Law Rule 18 even if the offer to settle in its fullness does not meet the requirements of Family Law Rule 18 to benefit from its effect.
[8] I speak of two other relevant matters here that are relevant to making a costs award.
[9] First, Fong v. Chan, (1999) 1999 2052 (ON CA), 46 O.R. (3d) 330 (Ont C.A.) sets out the three fundamental objectives that the modern costs rules are designed to serve:
To partially indemnify successful litigants for the cost of litigation;
To encourage settlement; and
To discourage and sanction inappropriate behaviour by litigants.
[10] The same three objectives for the modern costs rules have been recognized as applicable to family law proceedings in Serra v. Serra, (2009) ONCA 395.
[11] Second, it is a fundamental principle in the law of costs that the court should only grant what is a fair and reasonable amount for costs. A measure of what is fair and reasonable is generally considered to be what the unsuccessful party could reasonably expect to pay for those costs: Boucher v. Public Accountants Council for the Province of Ontario et al, 2004 14579 (ON CA), [2004] 71 O.R. (3rd) 291.
[12] Costs are not intended to be punitive in nature. Rather, the purpose of a costs award is to compensate the successful party in a case or a step in a case for the expense to which he or she has been put through the litigation process.
[13] I do not consider the result achieved by the respondent mother to match or exceed the terms of her offer. Custody itself was not granted, temporary or otherwise, on a joint or sole basis to her. I am not prepared to apply Family Law Rule 18 to the equation for that reason.
[14] I must determine who was the successful party to know in whose favour the presumption of entitlement to costs will operate under Family Law Rule 24(1). Various issues relating to the matrimonial home were resolved. The applicant father revised his position from claiming sole custody of Aditya to joint parenting of Aditya on a temporary basis during the questioning process and upon doing so moderated his position prior to the motion. Those steps should not go unacknowledged.
[15] When setting costs, a judge is exercising his or her discretion given under Section 131 of the Courts of Justice Act to award the costs of, and incidental to, a proceeding or a step in that proceeding.
[16] The discretion the court is given under Section 131 of the Courts of Justice Act is subject to the provisions of a statute or rules of court. As the Family Law Rules are rules of court applicable to family law proceedings, my discretion to award the amount for costs is modified by Family Law Rule 24(11) that mandates that I consider the following factors:
24 (11) A person setting the amount of costs shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) 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;
(e) expenses properly paid or payable; and
(f) any other relevant matter. O. Reg. 114/99, r. 24 (11).
[17] In the end, I consider the respondent mother to have been the more successful party on the motion. However, I must determine what amount for costs would be fair and reasonable. I must reach this conclusion upon considering the principles set out in Boucher, and in particular upon considering the principles set out in Family Law Rule 24(11) to determine the amount.
[18] The court is not obliged to analyze the time incurred and costs claimed by a party on a line by line basis in a bill of costs. For the amount to be considered fair and reasonable, a costs award must be proportionate to the issues in terms of what would have been appropriate in terms of time and resources for a party to incur for the result. This can sometimes be measured by the bill of costs for comparable services and disbursements incurred by the other party, or by the position taken by a party in an offer to settle.
[19] I note that paragraphs 16 and 17 of the respondent mother’s offer to settle provide that if a part of the motion was accepted, there would be no costs for that part of the motion. Since the option to purchase the matrimonial home was a defined part of the offer and that part was accepted by the applicant, I am applying that term as a factor to reduce the costs she claims for the entire motion.
[20] Mr. Viater claims 61.2 hours at $350 an hour for a total of $24,204.60 as lead counsel. Mr. Viater was called to the bar in 2009 and practices primarily in the family law field. His hourly rate is $350 an hour plus HST.
[21] Ms. Rolbin claims 30.6 hours at $275 an hour for a total of $9,508.95. Ms. Rolbin was called to the bar in 2013 and practices family law exclusively. Her hourly rate is $275 an hour plus HST.
[22] Mr. Levin claims 9.5 hours on the motion, at $250 for a total of $2,683.75 plus HST. Mr. Levin was called to the bar in 2015 and practices exclusively in the family law area. His hourly rate is $250 an hour plus HST.
[23] In addition to the fees claimed, the respondent mother seeks indemnity for total disbursements incurred in the amount of $2,569.55 inclusive of HST. I note that included in the disbursements is $1,569.12 to obtain the transcript of Aminder Singh, and $254.82 for the examiner’s fee on June 17, 2016 when Mr. Singh was questioned.
[24] This motion, as important as the parenting issue was, cannot support a claim for costs of $38,000. With respect, it would be difficult for the court to even consider a claim for costs in the amount of $29,000 on a full recovery basis. There was no reprehensible conduct or bad faith to warrant costs at the full recovery level. I also find that the costs claimed are excessive and are contrary to the three objectives for costs set out in Fong v. Chan. Instead, I am awarding costs on a partial indemnity basis in view of my finding there is no offer to settle that makes Family Law Rule 18 applicable. Awarding costs on that scale will also make the amount fair and reasonable having regard to the factors I have considered under Family Law Rule 24(11), and the expectations of Mr. Singh as the unsuccessful party.
[25] I consider an appropriate fee that would include the time of Mr. Viater, Ms. Rolbin and Mr. Levine to be $17,500, plus HST for fees, and $2,569.55 inclusive of HST for disbursements. This costs award reflects the concessions obtained on questioning as matters to be taken into account with respect to costs on the motion, without compromising the value of Mr. Singh’s reasonableness and using it against him. If anything, Mr. Singh’s modified position on parenting streamlined the motion. This was of great assistance to the court to determine the appropriate order that serves the best interests of the child.
[26] These costs are payable by the applicant father within 60 days.
EMERY J
Released: August 18, 2016
CITATION: Singh v. Gupta, 2016 ONSC 5178
COURT FILE NO.: 38626/16
DATE: 2016 08 18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AMINDER SINGH
Applicant
- and -
NAMITA GUPTA
Respondent
ENDORSEMENT RE: COSTS
EMERY J
Released: August 18, 2016