Court File and Parties

NEWMARKET COURT FILE NO.: FC-18-055976-00 DATE: 20190123 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kireesan Ganeshalingam, Applicant Father AND: Shobene Kunam, Respondent Mother

BEFORE: The Hon. Madam Justice M.P. Eberhard COUNSEL: Tricia Simon, Counsel for the Applicant Justin Persaud and Jared Persaud, Counsel for the Respondent

HEARD: By written submissions

COSTS ENDORSEMENT

[1] The successful Respondent Mother seeks full indemnity costs of $31,325.00 (partial indemnity would be $20,361.25) plus $1,144.96 for disbursements plus HST for a total of $36,691.05, after a trial of five days.

[2] I am fixing costs, not assessing costs, but the Bill of Costs at tab A does not disclose excess when considered in light of the importance of the mobility issue and comparatively to other matters requiring five days of trial.

[3] Respondent Mother was more successful after trial than the offers she served on September 25, 2018 and October 30, 2018 invoking Rule 18, at least for the period of heavy trial preparation and trial.

[4] I found the Applicant Father demonstrated bad conduct in his interaction towards the Respondent Mother which contributed to his loss at trial but I do not equate that with bad faith in the litigation process. He was resisting the Respondent Mother’s return to Germany with the child which will obviously have a profound impact on his opportunity to build a relationship with his son. Mobility is an issue that a parent can ask the court to decide. The unreasonableness of his position in light of the evidence introduced about the circumstances of this family can be addressed adequately by the principles that give costs to the successful litigant and the more so if the successful litigant made offers to settle which they beat at trial.

[5] The Applicant Father argues that a costs order should not be made because he is impecunious and this would also impact his ability to pay the child support ordered and to fund the access permitted by my order.

[6] Case law is cited to support the notion that costs may be reduced or not ordered against an impecunious, unsuccessful litigant, particularly where the costs would themselves impede the parent’s ability to address parenting responsibilities.

[7] Child and spousal support were ordered at a very modest rate in recognition of the Applicant Father’s earnings at this very moment. Support obligations would be given priority over the payment of costs.

[8] But life is long. A judgment for costs would stand as a reminder that there are consequences for choices made, particularly litigation choices, because there is always another party who had to respond to those choices.

[9] In all the circumstances, I generally accept the submissions of the Respondent Mother that full indemnity costs are justified but I moderate the judgment for costs to recognize the current financial circumstances of the Applicant Father.

[10] I fix costs all in at $30,000 payable to Legal Aid Ontario.

EBERHARD J.

Date: January 23, 2019