COURT FILE NO.: 17-42
DATE: 2021/09/20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lisa Sauve, Applicant
AND:
Zulfiqar Ali, Respondent
BEFORE: Justice L. Lacelle
COUNSEL: Stephane Perreault, Counsel for the Applicant
Respondent is self-represented
HEARD: By written submissions dated July 6th, 2021
ENDORSEMENT
[1] On June 21, 2021, I ruled in favour of the Applicant at a trial where the sole issue was the decision-making order that was in the best interests of the parties’ son.
[2] The Applicant has made written submissions on the costs order that she says should be made in her favour. The Respondent has not filed any submissions and his time for doing so (August 3rd, 2021) has long since elapsed.
[3] This is my ruling on the costs to be awarded following the trial.
The positions of the parties
[4] The Applicant seeks costs of $17, 280.98 inclusive of HST and disbursements. She argues she is entitled to her costs in the proceedings because she was the successful party at trial. She highlights the following:
a. While the trial was simple and did not take long, a fair amount of time was required to prepare for the trial since the evidence in-chief was provided by affidavit;
b. Various conferences were held leading up to the trial. There was also an appearance for an extended trial management conference. The Respondent proceeded with a motion shortly before the trial (amongst other things, he sought to amend his pleadings). All these appearances took time to attend and for counsel to prepare materials. In some instances, the appearances required counsel to conduct research and provide case law or a factum to the court;
c. The matter has been ongoing for over 4 years;
d. Neither party took any action to delay the proceedings or make it more complicated than necessary (at the trial itself);
e. There was no realistic chance of success by the Respondent and the trial was unnecessary;
f. The Respondent has not paid costs awarded against him on February 7, 2019.
The governing principles
[5] Rule 24 of the Family Law Rules governs the court’s approach to awarding costs.
Entitlement to costs
[6] Subrule 24(1) addresses entitlement to costs and sets out the presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
The amount of costs
[7] Subrule 24 (12) provides that in setting the amount of costs, the court shall consider:
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.
The fundamental purpose of costs awards
[8] Further guidance as to the factors applicable to the exercise of the court’s discretion in awarding costs is found in the jurisprudence.
[9] In Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 (C.A.), the Court of Appeal for Ontario confirmed at para. 8 that “modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants”.
[10] These principles were more recently affirmed in Mattina v. Mattina, 2018 ONCA 867 at para. 10, which also confirms that:
Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly: Family Law Rules, r. 2(2); E.H. v. O.K., 2018 ONCJ 578 (Ont. C.J.), at para. 8; Sambasivam v. Pulendrarajah, 2012 ONCJ 711 (Ont. C.J.), at para. 37. 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] Ultimately, the amount of any costs award is within the court’s discretion having regard to these Rules and principles.
Analysis and Decision
[12] I find it is fair, reasonable and proportionate that the Respondent pay $12, 000.00 (inclusive of HST) in costs to the Applicant. I arrive at that conclusion for the following reasons.
[13] The Applicant is entitled to a costs award. She was the successful party at trial.
[14] The Bill of Costs submitted by the Applicant shows legal fees and disbursements of $17, 280.98 (inclusive of HST), for just over 40 hours of work. The time spent on the file is reasonable in the circumstances and given the number of court appearances it required.
[15] While the Applicant has not pleaded that the Respondent acted unreasonably, I note that on at least one occasion (February 7, 2019), he did not attend for a settlement conference. Costs for that appearance were fixed at $500.00 and evidently remain unpaid. If nothing else, this put the Respondent on notice that there were potentially costs consequences to this proceeding.
[16] The Respondent has not responded to the costs submissions of the Applicant. He has presented no context for why the case required a trial. While it remained open to him to insist on a trial, the fact that he did so when it was very clear that he could not succeed is appropriate for me to consider.
[17] The Respondent has offered no insight into his financial circumstances, or any other issues that might be relevant to deciding what amount of costs is appropriate.
[18] I do consider, however, that the court record shows that various important issues in the litigation were settled on consent, including primary residence, and terms for parenting time.
[19] In the circumstances, I think it is only fair to deduct the $500 in costs previously ordered against the Respondent (which reflect the time and work wasted for that appearance), and to reduce the costs payable to reflect that the issues at trial were at least narrowed by the Respondent since he consented to other parenting terms. In the circumstances, I find that an order for $12, 000 (inclusive of HST) is proportionate and reasonable.
Conclusion
[20] In the result, the Respondent shall pay costs of $12, 000.00 (inclusive of HST) to the Applicant forthwith.
The Honourable Justice Laurie Lacelle
Date: September 20, 2021