Court File and Parties

Court File No.: FS-13-1934-00 Date: 2018 12 05 Superior Court of Justice - Ontario

Re: Manjit Kaur Kang, Applicant And: Gurnek Singh Kang, Respondent

Before: Justice G.D. Lemon

Counsel: Jaret Moldaver, Counsel for the Applicant Karen Dosanjh, Counsel for the Respondent

Heard: In Writing

Costs Endorsement

The Issue

[1] On August 30, 2018, I heard a lengthy motion dealing with the interpretation of the parties’ consent order. By reasons issued September 19, 2018, I granted all of Ms. Kang’s requests except a small matter related to the calculation of interest. I have now received costs submissions.

[2] Ms. Kang seeks costs on a “substantial indemnity” basis in the amount of $12,742.33. In response, Mr. Kang seeks costs in the amount of $6,175.45.

Authorities

[3] In Mattina v. Mattina, 2018 ONCA 867, our Court of Appeal recently said:

[9] Section 131(1) of the Courts of Justice Act, provides that cost orders are in the discretion of the court. Rule 24 of the Family Law Rules sets out a framework for awarding costs for family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice. Although the Family Law Rules do not expressly govern costs awards in the Court of Appeal, they have been used to guide this court’s analysis on costs in family law disputes.

[10] This court has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants. Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly, and Rule 24(12), which sets out factors relevant to setting the amount of costs, specifically emphasizes “reasonableness and proportionality” in any costs award.

[11] The Family Law Rules are a marked departure from some aspects of the Rules of Civil Procedure. As such, case law pertaining to costs decided under the Rules of Civil Procedure should be approached with some caution.

[12] Rule 24(1) creates a presumption of costs in favour of the successful party of a motion, case, or appeal and the presumption that a successful party is entitled to costs applies equally to custody and access cases.

[13] Consideration of success is the starting point in determining costs. This presumption does not, however, require that the successful party always be entitled to costs. An award of costs is subject to: the factors listed in r. 24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party.

[14] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

i. each party’s behaviour,

ii. the time spent by each party,

iii. any written offers to settle, including offers that do not meet the requirements of rule 18,

iv. any legal fees, including the number of lawyers and their rates,

v. any expert witness fees, including the number of experts and their rates,

vi. any other expenses properly paid or payable; and

(b) any other relevant matter.

[15] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14).

[16] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably:

Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.

[17] Rule 24(5) provides guidance on how to evaluate reasonableness:

In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

[18] Rule 24(8) discusses the cost consequences for a party who has acted in bad faith:

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. [Citations omitted]

Analysis

[4] In my endorsement, I said “There is no doubt that Mr. Kang is in breach of the consent order…Ms. Kang seeks no other remedy for Mr. Kang’s breach; his conduct can best be dealt with in a costs order.”

[5] There is no doubt that Ms. Kang has been successful. It is clear in my endorsement that Mr. Kang was entirely unsuccessful. Ms. Kang is entitled to costs and Mr. Kang is not.

[6] There was much in the submissions as to which of the parties was unreasonable. It is clear that, given the result, Mr. Kang has been and continues to be unreasonable.

[7] Both parties made offers to settle. Both offers were capable of being accepted in whole or in part. While neither party accepted any part of the others offer, the cross of offers narrowed the issues for the motion. Of the issues upon which the parties disagreed, Ms. Kang did equal to or better than her offer. Mr. Kang did not.

[8] Mr. Kang seeks costs in an amount half as much as Ms. Kang’s costs. He submits that Ms. Kang’s costs are “clearly over-exaggerated.” The materials were extensive. The calculations were detailed. Given the result, it appears that had Mr. Kang’s counsel put more time into the file, the matter might have been resolved without the need for a motion. I do not find the amount requested by Ms. Kang to be unreasonable.

[9] Accordingly, I assess and fix costs payable by Mr. Kang to Ms. Kang in the amount of $12,742.33.

[10] Those funds shall be paid from the funds held by Kahn, Zack, Ehrlich, Lithwick LLP. That firm is ordered to make the payment of $12,742.33 to Ms. Kang out of Mr. Kang’s share of the funds held in trust. Any remaining balance in the trust fund shall remain in trust pending further order of the court or joint authorization of the parties.

Justice G.D. Lemon Date: December 5, 2018