COURT FILE NO.: FS-17-39898

DATE: 2021 06 08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Isha Persaud, Applicant

AND:

Saim Paul Persaud, Respondent

BEFORE: Conlan J.

COUNSEL: Sudha Chandra, for the Applicant

Lisa Bombardieri, for the Respondent

ENDORSEMENT on costs

I. Introduction

The Motion

[1] A Motion was argued on April 19, 2021, brought by the Respondent husband, for an Order that the jointly-owned matrimonial home in Burlington, Ontario be listed for sale, and for other related relief. The Applicant wife opposed the Motion.

The Result

[2] In this Court’s Endorsement dated April 19, 2021, reported at Persaud v. Persaud, 2021 ONSC 2935, the husband’s Motion was granted in its entirety, subject only to costs.

[3] Unable to settle the issue of costs, written submissions have been filed.

The Positions of the Parties

[4] The wholly successful party, the husband, requests costs on a full indemnity scale in the total, all-inclusive amount of $7,397.30.

[5] The husband submits that he met or bettered his formal Offer to Settle dated March 19, 2021, and he further submits that the Applicant’s conduct was not only unreasonable but in bad faith.

[6] The wife submits that no costs ought to be awarded to either side. She argues that, although the husband did meet or exceed the terms of his Offer to Settle, the husband acted unreasonably and, in addition, the Bill of Costs filed by the husband’s counsel is difficult to decipher.

II. Analysis and Conclusion

The Issues

[7] There are three issues to decide: (i) entitlement to costs, (ii) scale of costs, and (iii) quantum of costs.

Issue Number One - Entitlement to Costs

[8] The husband was wholly successful on the Motion. As such, he is presumptively entitled to some costs. There is nothing present here that would operate to displace that presumption. In particular, I find there to be no merit to the suggestion that the husband acted unreasonably in proceeding with a motion that could have been avoided.

[9] How, I ask rhetorically, could it have been avoided? In oral submissions at the hearing, counsel for the wife stated clearly that the wife opposed the Motion. Obviously, therefore, the Motion was necessary. It is as simple as that.

Issue Number Two - Scale of Costs

[10] I agree with the husband, as conceded by the wife, that, looking at his March 19, 2021 Offer to Settle and this Court’s Endorsement dated April 19th, all five criteria outlined at 18(14) of the Family Law Rules have been met. Hence, the husband is presumptively entitled to costs to the date of the said Offer and full recovery of costs from that date.

[11] I do agree with counsel for the wife, however, that it is impossible to tell from the Bill of Costs filed on behalf of the husband what amount of fees was incurred from the date of the husband’s Offer to Settle. Individual time dockets have not been provided.

[12] I also agree with counsel for the wife that the wife’s conduct does not rise to the level of bad faith. I would characterize it as being haphazard and inconsistent, and I would describe her litigation position as advanced at the hearing of the Motion as being very weak.

[13] For those reasons, costs on a substantial indemnity basis throughout will be awarded in favour of the husband.

Issue Number Three - Quantum of Costs

[14] Quantum of costs is discretionary. The goal is to respect the purposes of modern costs awards, (i) to partially indemnity successful litigants, and (ii) to encourage settlement, and (iii) to address bad or inappropriate conduct by or on behalf of litigants, and to craft something that in the end can be described as being fair, just, reasonable, and proportionate.

[15] I have no difficulty with the time spent or the hourly rates charged by counsel for the husband and counsel’s law clerk.

[16] I elect to award to the husband 75% of his full recovery costs. That equals the sum of $5,548.00.

The Order of the Court

[17] This Court orders that the wife shall pay to the husband costs in the total amount of $5,548.00. The wife shall pay that sum within thirty (30) calendar days of June 9, 2021.

[18] In all of the circumstances, I think that is a fair, just, reasonable, and proportionate costs award.

(“Original signed by”)

Conlan J.

Date: June 8, 2021