Court File and Parties
COURT FILE NO.: FC-14-045331-00 DATE: 20190425 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Sabrina Jhagroo aka Sabrina Anthony, Applicant -and- Robin Anthony, Respondent
BEFORE: The Honourable Madam Justice R.S. Jain
COUNSEL: Rono A. Baijnath, for the Applicant Kaisree S. Chatarpaul, for the Respondent
HEARD: In Writing
Costs Endorsement
[1] This ruling on costs follows a 7-day bifurcated focused trial on the issues of: the validity of the marriage; determining whether the parties were “spouses” for the purpose of determining spousal support and equalization of property; and determining the valuation date. This trial was heard from November 26, 2018 through to December 5, 2018. My decision was released on January 28, 2019.
[2] I have now reviewed the written costs submissions from the applicant. The respondent did not provide any written costs submissions, (even though the court granted both parties an extension of time for filing and set specific dates for same).
[3] The applicant seeks costs of the entire proceeding (since 2014) approaching full recovery in the sum of $105,850.00 payable forthwith. The Bill of Costs submitted by the applicant shows that the total fees and disbursements were $119,882.33, plus HST of $15,584.70, for a total of $135,467.04. The total invoice prior to the applicant’s offer to settle was $56,612.50. The total invoice of the trial alone, subsequent to the applicant’s offer to settle, was $53,170.83 without disbursements. The total disbursements were $10,099.00, (of which $7,890.00 was for 31,560 photocopies). There was no breakdown provided as to whether the disbursements were accrued prior to or after the applicant’s offer to settle. The applicant submits that the costs being sought have already been reduced to account for drafting materials, court preparation, attendance at court and disbursements. The amount requested by the applicant does not include costs for work completed prior to 2014, (the parties negotiated outside of court from 2011 until 2014 when the applicant commenced her court application).
[4] Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. The applicant was granted all the relief that she sought during the trial. The respondent was not granted any of the orders that he was seeking. The applicant is presumptively entitled to costs, subject to:
a. the factors listed in r. 24(11) of the Rules; b. the directions set out under r. 24(4) regarding unreasonable conduct; c. r. 24(8) regarding bad faith; d. any offers to settle; and, e. the reasonableness of the costs sought by the successful party. Berta v. Berta, 2015 ONCA 918, at para. 94.
[5] In Serra v. Serra, 2009 ONCA 395, the Ontario Court of Appeal confirmed that modern costs rules are designed to foster three fundamental purposes: 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.
[6] Rule 2(2) adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. This provision needs to be read in conjunction with r. 24, which states that counsel and parties have a positive obligation to help the court to promote the primary objective under the Rules. Rules 2(3)(a) and (b) set out that dealing with a case justly includes ensuring that the procedure is fair to all parties and saving time and expense.
[7] For the reasons set out below, the applicant shall have full recovery costs from the date of her offer to settle. There is simply no reason to do otherwise. In addition, the applicant shall have costs approaching full recovery for the period preceding her offer to settle. The court finds there are two main reasons for this: during this proceeding, the respondent acted unreasonably and in bad faith.
[8] Subrule 18(14) of the Rules reads as follows:
COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER
18 (14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
- If the offer relates to a motion, it is made at least one day before the motion date.
- If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
- The offer does not expire and is not withdrawn before the hearing starts.
- The offer is not accepted.
- The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
[9] On September 9, 2018, the applicant made an offer to settle pursuant to r. 18, which remained open for acceptance and was never withdrawn. The applicant advises that no response was received from the respondent. The applicant was completely successful with respect to the issues addressed in the offer to settle. With respect to the substantive issues at trial, the applicant’s offer to settle was reasonable and, given the outcome of the trial, if the respondent had accepted it, the parties could have save thousands of dollars and hours of time that were spent unnecessarily. Cost consequences are triggered in favour of the applicant. Therefore the applicant shall receive the benefit of r. 18(14), and there shall be an order for full recovery costs from the date of her offer to settle.
[10] As stated above, the respondent did not provide any written costs submissions. Given that I was not provided with any offers to settle by the respondent and he never responded to the applicant’s offer to settle, there are no cost consequences triggered in the respondent’s favor on any issue pursuant to r. 18(14) or (16).
Bad Faith and Unreasonable Behaviour
[11] Rule 24(8) states that 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. This rule requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. See: Cozzie v. Smith, 2015 ONSC 3626; and, Scipione v. Del Sordo, 2015 CarswellOnt 14971 (Ont. SCJ).
[12] There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. See: S. (C.) v. S. (M.) (2007), 38 R.F.L. (th) 315 (Ont. SCJ). Bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involved intentional duplicity, obstruction or obfuscation.
[13] Family law litigants are responsible for and accountable for the positions they take in the litigation. See: Heuss v. Surkos, 2004 CarswellOnt 3317, 2004 ONCJ 141. Sometimes in family law matters, the behaviour of both the parties may seem to be unreasonable at different times. They could be acting out of emotion or fear, or in reaction to or out of a lack of trust and information. These emotions and fears can cloud the determination of fault for the alleged unreasonable or bad faith conduct. In this matter, however, it was unfortunately not difficult to determine whether one party was acting in bad faith or behaving unreasonably prior the trial.
[14] The positions the respondent took on the issues in dispute left the applicant with no choice but to litigate, at a significant cost. The positions the respondent took delayed and lengthened what could have been a very short, focused trial on the financial issues of spousal support and equalization. The determination of the validity of marriage, spousal cohabitation and separation date ought to have been simple, especially when there were volumes of evidence provided by the applicant. The significant efforts that were made by the applicant and her counsel to prove the respondent’s untruthfulness and the unreasonableness of his positions required extensive communication, multiple court dates and, finally, counsel had to call volumes of evidence to attempt to discredit the respondent’s testimony. All this was reflected in the applicant’s Bill of Costs.
[15] This was also not the first time the respondent has acted in bad faith or unreasonably in this matter. According to the applicant, the respondent sought multiple adjournments and delayed filing his court documents throughout this proceeding since 2014. The respondent also sold the matrimonial home without the applicant’s knowledge by making false declarations about his marital status. The respondent denied the clear evidence that challenged his positions and attempted to mislead the court. Lastly, in his testimony, he was disrespectful and disparaging to the applicant, inferring she was a “slut” and “barren.” These behaviours, taken on their own or together, make it very clear to the court that the respondent was knowingly and intentionally acting in bad faith and was behaving unreasonably throughout this proceeding.
[16] The costs provisions of the Rules are designed to encourage settlement and make it clear that if one party chooses to unreasonably pursue or prolong litigation, they do so knowing that the likely cost consequences are that they will have to pay both their own lawyer and the other party’s lawyer. The court agrees with the submissions of the applicant’s counsel, Mr. Baijnath, that the respondent’s case, “was weak from inception.” The court finds that the respondent was attempting to obstruct and/or delay the fair and just resolution of this matter. By his behaviour, the respondent has shown that he had little regard or respect for proportionality or achieving a just resolution.
[17] In fixing costs, the overriding objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. Serra, at para 12. I have already determined that the applicant’s recovery of costs should be full recovery after her offer to settle.
[18] Although the applicant’s Bill of Costs was clear in terms of costs of the trial after the offer to settle, I found it unclear regarding the costs and disbursements prior to the offer. It is difficult for the court to determine whether costs have already been dealt with at prior court appearances. It is further unclear whether the disbursements (the majority of them being photocopies) were accumulated prior to or after the applicant’s offer to settle. Based upon all of the above, I have determined that the applicant should have costs approaching a full recovery basis for the period preceding her offer to settle; however, those costs will be reduced based on what the court determines is fair and reasonable in these circumstances.
[19] The applicant behaved reasonably during the trial. I have considered the rates, time spent and disbursements, and I have determined that they are reasonable considering Mr. Baijnaths’ year of call, experience practicing primarily in the area of family law and the effectiveness of his representation and presentation during the trial. I have also considered the complexity and importance of the issues to both parties.
[20] Taking all of the circumstances into account, the court finds that a fair and reasonable costs award is $100,973.65 inclusive of all fees, disbursements and HST. This amount has been calculated as follows: 55% of the applicant’s costs prior to her offer to settle being $31,136.88, plus 50% of the total disbursements being $5,049.50, plus 100% of the applicant’s trial costs being $53,170.83 = $89,357.21 plus HST of $11,616.44 for a total of $100,973.65. The applicant asks that these costs be paid forthwith and secured as a charge against the respondent and his residence at 2632 Concession Road 4, Loretto, Ontario.
Conclusion
[21] There shall be an order as follows:
a. The respondent shall pay the applicant her costs in the amount of $100,973.65 forthwith, (inclusive of H.S.T. and disbursements); and, b. Until the above costs are paid in full to the applicant, the amount of $100,973.65 shall be secured as a charge against the respondent and his residence at 2632 Concession Road 4, Loretto, Ontario.