Court File and Parties

COURT FILE NO.: FS-18-006074 DATE: 2021-04-29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RICHARD CHEE-A-TOW, Applicant AND: SUMINTRA CHEE-A-TOW, Respondent

BEFORE: Sossin J.

COUNSEL: Kenneth E. Snider, Counsel for the Applicant James Jagtoo, Counsel for the Respondent

Costs Endorsement

Overview

[1] This trial concerned the resolution of various financial relationships between the applicant, Richard Chee-A-Tow and the respondent, Sumintra Chee-A-Tow.

[2] The trial decision was released on March 23, 2021 with reasons for judgment now reported at 2021 ONSC 2080.

[3] Most of the trial was devoted to issues affecting the validity of a separation agreement the parties purported to enter into in 2010, and the various implications of setting aside that agreement.

[4] The respondent was successful in having the separation agreement set aside. She was found to be entitled to a one-half interest in the matrimonial home based on a resulting trust. Additionally, she was found to be entitled to a period of modest spousal support. Her claims for the equalization of an additional real estate asset and for child support were dismissed.

[5] While neither party received all the relief sought at trial, the respondent was largely successful, particularly on the issues that took up the lion’s share of the trial.

[6] Rule 24 of the Family Law Rules, O. Reg. 114/99 starts with the presumption that a successful party is entitled to costs.

[7] As such, the respondent is presumptively entitled to costs.

[8] The reasons set out that if the parties could not agree on costs, submissions could be provided.

[9] The respondent’s costs’ submissions were received on April 7, 2021.

[10] The respondent is seeking $222,540.22 on a full recovery basis, with alternative requests for lesser amounts with a mix of substantial and partial indemnity cost scales.

[11] The respondent argues that the applicant’s conduct was unreasonable and amounted to bad faith, thus justifying a costs award on a full-recovery basis.

[12] Additionally, the applicant has yet to pay the costs awarded in favour of the respondent as a result of the motion over s.7 expenses in the Fall of 2020.

[13] The respondent further submits that the result at trial significantly exceeded all of the offers provided by the applicant.

[14] In the offer to settle dated September 23, 2019, the applicant offered to pay the respondent $5,000.00. In the offer to settle dated March 16, 2020, the applicant offered to pay the respondent $50,000.00 in addition to monthly child support of $569.00. In his offer dated November 2, 2020, the applicant offered to pay the respondent $100,000.00 for all of her claims.

[15] The respondent made several offers to settle as well. In her final offer to settle, dated November 7, 2020, the respondent offered that the applicant pay her the equivalent of 50% of the value of the matrimonial home, fixed at $285,000.00, and a further $10,000.00 in costs.

[16] The applicant’s costs’ submissions were received on April 22, 2021.

[17] The applicant argues that the respondent, while entitled to costs, should have those costs fixed at $60,000.00, all inclusive.

[18] The applicant submits that at no time was his conduct unreasonable.

[19] The applicant also alleges the amounts claimed in the respondent’s bill of costs are high, and should be reduced.

[20] Reply costs’ submissions from the respondent were received on April 27, 2021.

[21] Rule 24(11) of the Family Law Rules provides that, in exercising its discretion to award costs, the court must consider the following factors:

(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;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[22] Costs rules advance three fundamental goals: (a) to indemnify successful litigants; (b) to encourage settlements; and (c) to discourage and sanction inappropriate behaviour by litigants. Proportionality and reasonableness are the “touchstone considerations” in a costs award in a Family Law context; Beaver v. Hill, 2018 ONCA 840 at para. 12.

[23] The legal issues involved in the trial relating to the validity of the separation agreement were moderately complex, though it was the dispute over the facts which led to a lengthier trial than would otherwise be the case.

[24] As well, the lack of adequate disclosure by the applicant contributed to the complexity and length of the trial.

[25] That said, at the trial itself, I found counsel worked cooperatively to ensure an efficient trial.

[26] Bearing these considerations in mind, as well as the fact that while the respondent was not successful on every issue, the result for the respondent was more favourable than both the parties’ final offer to settle, I find costs in favour of respondent in the amount of $150,000.00, all inclusive, to be fair and reasonable.

[27] Therefore, the applicant will pay the respondent costs in the amount of $150,000.00, all inclusive, within 30 days of this endorsement.

Sossin J.

Released: April 29, 2021