Court File and Parties

Court File No.: FC-14-045480-00 Date: 20170628 Superior Court of Justice – Ontario – Family Court

Re: Ahmed N. Baksh, Applicant And: Janet Baksh, Respondent

Before: The Honourable Mr. Justice Kaufman

Counsel: Applicant - in person Ivana Vaccaro, Counsel for the Respondent

Heard: In Chambers

Ruling on Costs

[1] The original motion brought by the respondent wife requested disclosure and spousal support from the applicant husband. The applicant, a practicing lawyer, requested an adjournment to engage counsel to represent him and to enable him to amend his pleadings.

[2] The adjournment request was granted on terms requiring the applicant to comply with a disclosure Order made a year earlier. In addition he was required to pay temporary spousal support. Although not formally requested in his material, he was granted permission to amend his Application subject to costs thrown away being awarded to the respondent to be addressed on the return date. The adjourned date was made peremptory on the applicant with or without counsel. Costs of this event in the sum of $1,150 were ordered against the applicant payable to Legal Aid within 30 days.

[3] On the return date the parties entered into a consent Order and further adjourned the motion to accommodate the respondent’s counsel’s childcare responsibilities.

[4] On the further return date the respondent’s motion to strike the applicant’s pleadings was dismissed without prejudice to being resurrected in the event of further material breaches of disclosure by the applicant. The respondent requested costs of $2,875 plus HST. That amount was awarded to her in the cause as the court was unable to assess the full extent of the deficiencies in the disclosure and the proportionality thereof.

[5] In her costs submissions the respondent notes that the applicant claimed an equalization of net family property after the statutory limitation for doing so had expired. She notes that he has delayed producing the required financial disclosure required to support his claim. His amendment claims, in addition to an equalization of net family property, a resulting and/or a resulting trust in any property owned by the respondent including the matrimonial home transferred by the applicant to the respondent after separation pursuant to the terms of an interim Separation Agreement drafted by the applicant as part satisfaction of any equalization payment and spousal support arrears owing by him to her.

[6] The respondent states that as a result of the amendment by the applicant she was required to amend her Answer so as to address facts alleged by the applicant that the respondent’s claims are without merit. She believes that he has tailored his claims in the Amended Application to try and circumvent limitation periods. Further, the respondent has amended her Answer to now claim an earlier date of separation to coincide with the date on which she now alleges that the applicant repudiated his marital relationship with her.

[7] The respondent claims fees and disbursements inclusive of HST in the sum of $4,688. The sum of $2,034 represents fees for review of the original Application and preparation of the Answer and the sum of $2,047.73 represents fees for review of the Amended Application and preparation of the Amended Answer. She indicates that her precarious financial situation has been exacerbated by the increased legal fees incurred by her.

[8] The applicant, still acting in person, asks the court to review the amended pleadings. He suggests that the Amended Answer has been drafted in a manner designed to hinder him from asserting his equalization claims. He claims that the amended pleadings are unreasonable, vexatious and frivolous. He argues that costs should be proportional to the issues and that the respondent’s costs claim is exorbitant and should be in the range of $1,200 to $1,500 including disbursements. He further suggests that any costs award should be suspended until the trial of this matter as the applicant is impecunious.

[9] The applicant also complains that the respondent, in filing her costs submissions without notice to him, displayed a clear lack of fair play as well as unethical behaviour. He asks the court to censure the respondent in the costs award so as to act as a guide to her future conduct.

[10] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 confirmed that modern costs rules are designed to foster three fundamental purposes, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.

[11] Subrule 24(1) of the Family Law Rules (“the Rules”) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ- Family Court).

[12] In this case, neither party has presented the court with an Offer to Settle. The costs claimed are as a result of the court allowing the applicant to amend his pleadings notwithstanding his delay in complying with both his obligation under the Rules to disclose and court Orders requiring him to do so. Rule 11(3) mandates that the court shall give permission to a party to amend an Application unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate. The respondent has already received costs of numerous motions relating to delay or default in the applicant providing disclosure. The purpose of this Ruling is to simply assess the costs that have been incurred by the respondent as a result of the applicant’s amendment to his application.

[13] The respondent seeks recovery of her costs relating to both the original pleadings and the amended pleadings. Her entitlement to recover costs of the amended pleadings will ultimately be dependent upon her being successful in the final determination of this matter. At that stage the court will be able to consider the factors under Rule 24(11) in assessing costs while factoring in the reasonableness or unreasonableness of the parties behaviour and litigation conduct. At that stage the court may also have the benefit of reviewing Offers to Settle from the parties.

[14] To the contrary, the costs incurred by the respondent relating to the original pleadings have effectively been thrown away as those pleadings are no longer before the court. The position espoused by the respondent in her original pleadings has, by virtue of the amendment to the Application, been changed to enable her to fully respond to the allegations relied upon by the applicant.

[15] One of the considerations in an assessment of costs is to fix costs in an amount that is “fair and reasonable” for the unsuccessful party to pay in a particular proceeding: Farjad-Tehrani v. Karimpour, 2009 CarswellOnt 2186 (S.C.J.) at para. 32, aff’d 2010 ONCA 326, at para. 4. Costs need to be proportional to the issues and amounts in question and the outcome of the case. Amounts actually incurred by the successful litigant may therefore not be determinative. Hackett v. Leung, [2005] O.J. No. 4888 (Ont. S.C.J.).

[16] In the case at bar, I have not been provided with the Bill of Costs or dockets of either party to assist me. However, “the overriding principle of reasonableness must govern, rather than any exact calculation of what cost should be allowed. A line by line assessment of the fees is not required” (1175777 Ontario Inc. v. Magna International Inc., 2008 ONCA 190).

[17] In relying upon the written submissions of both parties, I find that the legal fees of $2,034 including HST plus disbursements of $606.27 for a total of $2,640.27 reasonably compensates the respondent for her costs incurred as a result of the amendment to the pleadings.

[18] Despite the applicant being on a legal aid certificate, it is clear that pursuant to s.46(1) of the Legal Aid Services Act, 1998, S.O.1998, C.26 “the costs awarded in any order made in favour of an individual who has received legal aid services are recoverable in the same manner and to the same extent as though awarded to an individual who has not received legal aid services”. As stated in Ramcharitar v. Ramcharitar and Alvarez v. Smith, at para. 17-19 a legally aided client “stands before the court in exactly the same position as any other litigant”.

[19] I considered the applicant’s ability to pay the costs order. MacDonald v. Magel, 67 O.R. (3d) 181 (Ont.C.A.). However, the means of the applicant may not be used to shield his liability, particularly when he has acted unreasonably. Parsons v. Parsons (No. 2). In the case at bar, although a determination regarding reasonableness will be better ascertained at trial, the simple fact is that the applicant is responsible for his failure in not adequately presenting his claims in the originating Application. The respondent, presumably, only has a certain number of hours available to her on her Legal Aid certificate and she is therefore entitled to be compensated so that those hours can be reinstated by virtue of her being successful in her argument.

[20] In regards to the applicant’s request that the respondent be censured, the court has no knowledge of any irregularity in service of the respondent’s costs submissions. The court did not adjudicate on the costs issue until all submissions were received. The applicant should also be mindful of his own conduct with respect to complying with disclosure orders and in presenting his pleadings in a manner that did not require amendment.

[21] In regards to the applicant’s request to suspend payment of the awarded costs until trial, such a request runs contrary to Rule 24(10) which sets out that costs are to be determined in a summary manner after each step in the case by the presiding judge.

[22] In summary, the respondent is awarded costs in the sum of $2,640.27 which costs are, as requested, payable to the Ontario Legal Aid Plan and which costs are payable within 30 days.

Justice R. P. Kaufman Released: June 28, 2017