Court File and Parties
COURT FILE NO.: FS-15-84642
DATE: 20211006
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Brendan Frey v. Uptala Manohar Purohit-Frey
BEFORE: LEMAY J
COUNSEL: Jaret Moldaver for the Applicant Jacob Stall, as Agent for the Respondent
HEARD: In Chambers
COSTS ENDORSEMENT
[1] On August 25th, 2021, I released my reasons in this matter (see 2021 ONSC 5709). In that decision, I issued a temporary Order granting the Applicant primary residency of the child of the marriage. I also ordered that the child of the marriage should be enrolled at a school in the Applicant’s catchment area and that the parenting schedule should be reversed. I also provided some procedural directions to move this matter forward. It is now time to fix the costs.
Positions of the Parties
[2] The Applicant argues that he should be entitled to costs in the sum of $30,000.00 all-inclusive as an amount between partial and substantial indemnity costs. The Applicant seeks these costs on the following bases:
a. The Applicant made an offer to settle and, on part of the motion, achieved more than that offer to settle.
b. The motion was very important to the parties.
c. The Applicant conducted himself in a reasonable manner and the Respondent conducted herself in an unreasonable manner.
d. The time spent preparing for this motion was reasonable.
[3] The Respondent takes the position that she should be entitled to recover 50% of her legal costs, which would amount to $6,791.02 inclusive of HST and disbursements. The Respondent seeks these costs on the following bases:
a. The Respondent made a reasonable offer to settle in this case.
b. The changes that were ordered by the Court were things that the Respondent was largely doing anyway.
c. The Applicant made all sorts of false claims about the Respondent’s mental health and other issues and has been engaged in aggressive litigation against the Respondent.
d. The Applicant’s claim for costs is enormously excessive.
e. The Applicant acted unreasonably in the way that he conducted this litigation.
[4] In her submissions, the Respondent also stated that the page limit I imposed of three (3) single-spaced pages did not permit her to get both her lawyer’s formal case law and legal arguments and her own arguments into those page limits. The Respondent then states that she elected to go with her own voice. I note two points in respect of this submission. First, the Respondent did not ask for any additional space for submissions. Second, in any event, parties are expected to be able to explain their position on issues such as costs in the space and time that the Court provides to them.
Principles Relating to Costs
[5] I have reviewed and considered both the decisions and the provisions of the Family Law Rules that have been cited to me. I will now set out the principles that are most relevant to the issues I have to decide in this case.
[6] First, with respect to Offers to Settle, Rule 18(14) is relevant. Under that Rule, a party who made an offer is entitled to full recovery costs unless a Court orders otherwise, if the Court’s decision is as favourable or more favourable than the offer.
[7] Second, Rule 24(12) of the Rules states that the Court is to consider the reasonableness and proportionality of a series of factors as it relates to the importance and complexity of the issues. The most relevant of these factors are:
a. Each party’s behaviour.
b. The time spent by each party, and the related legal fees.
c. The offers to settle.
[8] In assessing costs in a family law case, I am mindful of the principles set out in Beaver v. Hill, 2018 ONCA 840. Specifically, proportionality and reasonableness are the touchstones that judges are to use to evaluate all costs claims in family law proceedings.
[9] With these principles in mind, I will now address the issues raised by the parties.
Applying the Principles
Offers to Settle
[10] Both parties provided an Offer to Settle. The Applicant’s Offer to Settle was for terms very similar to the order that I made. However, the Applicant’s offer does not trigger the cost consequences of Rule 18 because the offer does not address whether the Applicant’s proposed variations to the order of Shaw J. were interim or final. My order was clearly an interim one and will be subject to variation at a trial in this matter.
[11] I also note that the Applicant’s Offer to Settle did not consider the procedural directions that I provided. However, those procedural directions were designed to move the case forward, which is something that the Applicant had been seeking to do.
[12] The Respondent’s offer clearly does not trigger the provisions in Rule 18(14). Specifically, her offer was for the Applicant to withdraw both the Motion to Change and his urgent motion in exchange for a small increase in the Applicant’s parenting time as set out in the Order of Shaw J. The Applicant did far better in my decision than he would have if he accepted the Respondent’s offer.
[13] The Respondent asserts that this offer “was very reasonable, non-confrontational”. I am not persuaded that this offer was reasonable as it required the Applicant to abandon his concerns with the Respondent’s parenting as disclosed in his Motion to Change. It ultimately sought to have the Applicant end the litigation. My concerns with the Respondent’s conduct in this matter are more generalized, and I will address them below.
[14] Even where Offers to Settle do not trigger the cost consequences under Rule 18, they can still be considered as a factor in assessing costs. In this case, the Applicant took a position that was largely reflected in the decision that I made. In addition, it is clear from the materials that were filed on the motion that the Applicant was attempting to engage the Respondent in resolving the issues in this case both before and after the motion was brought. As a result, the offers to settle are a factor that favour the Applicant in assessing costs.
The Importance and Complexity of the Issues
[15] The Applicant argues that the issues were both complex and important. The Respondent argues that the changes that I had ordered were “something that I was doing largely anyway and did not necessitate an emergency motion and associated costs especially with a motion pending.”
[16] I am of the view that these issues were important and complex. I start with the Respondent’s assertion that the Orders I made were something that she was largely doing anyway. That assertion is not borne out by the evidence that was filed on the motion. As I noted at paragraph 27 of my reasons, the Respondent abruptly insisted on the enforcement of Shaw J.’s order starting on May 30th, 2021. The Respondent threatened to call the police if the Applicant did not comply with the Order of Shaw J., even though the parties had been managing Sushen’s care under a different arrangement for more than a year. The Applicant then did not engage in any efforts to resolve the issue other than the offer to settle that I have set out at paragraph 12, above.
[17] The issues in this case concerned Sushen’s best interests. That factor, combined with the abrupt change to the de facto arrangements for Sushen forced on the Applicant by the Respondent, made the issues I had to decide important.
[18] In addition, the matters before the Court were complex and time-consuming. This is a file with a long and complicated history and it was necessary for the parties to set that history out so that the Court could understand the issues in play. In addition, there were a great many text messages and e-mails that both the parties and the Court had to go through in order to understand the issues in this case.
The Outcome of the Case
[19] The Respondent argues that the win was clearly for her. I disagree. In order to decide which party was successful, the Court must answer the simple question: which party got what they asked for? See Scipione v. Scipione, 2015 ONSC 5982.
[20] In this case, it was the Applicant who got most of what he asked for. The primary residence of Sushen was changed as was the location of his school. The Respondent’s parenting time was also reduced. The Respondent wanted the motion dismissed. She did not achieve anything close to her desired result.
[21] As a result, the successful party on this motion was the Applicant. In the normal course, costs should be payable to the successful party (the Applicant) by the unsuccessful party (the Respondent).
Conduct of the Parties
[22] Each party argues that the other’s conduct was problematic. I start with the Respondent’s position. She argues that the Applicant’s conduct in this case is deserving of punishment. I disagree.
[23] First, the Respondent asserts that the Applicant made all sorts of false claims and wild untruthful allegations relating to mental health, mental illness, hygiene, starvation and delusions. In terms of the Respondent’s health issues, I expressed concerns about the Respondent’s ability to care for Sushen. I also set out a series of text messages from the Respondent. In my view, the Applicant has certainly raised what appear to be legitimate concerns. I hasten to add (as I did in paragraph 50 of my reasons) that I have not reached any final conclusions about the Respondent’s medical conditions.
[24] Second, the Respondent has alleged that the Applicant has engaged in very litigious behaviour and that “the applicant has gotten used to going to court at the slightest whim and getting whatever he wants and having someone else (me) pay extraordinary sums for it.” The evidence I have does not support this assertion. Indeed, the bulk of the evidence supports a contrary conclusion. I make that observation for two reasons:
a. The Applicant gave the Respondent every opportunity to proceed with this case and did not note the Respondent in default even though she had not filed her pleading for more than two years after the Motion to Change was served on her.
b. The Applicant did not pursue this case until the Respondent’s insistence on the strict enforcement of Shaw J.’s order resulted in an abrupt change in the arrangements that the parties had put in place.
[25] Then, the Respondent makes the following assertion in her submissions:
“the applicant was likely politically motivated by the sudden action of bringing forward this motion; orders and costs must be allocated based on law and merit I should not have to pay for the applicant’s political and opportunistic exploits.”
[26] If I understand this assertion correctly, the Respondent alleges that the Applicant has been motivated by political considerations in bringing this motion forward. I see nothing in the record that would support this assertion.
[27] This brings me to the Respondent’s conduct in this matter. There are three significant concerns about the Respondent’s conduct, as follows:
a. The Respondent adopted a hard-line approach to enforcing the Order of Shaw J. Given that the parties had not enforced the terms of that Order for a considerable period of time, this hard-line approach to enforcing the order was conduct that made litigation more likely. It was also conduct that was not in Sushen’s best interests for reasons I explained in my decision.
b. The Respondent had not responded to the underlying litigation in any meaningful way for two years prior to this motion. As a result, the motion was necessary when the Respondent decided to enforce the Order of Shaw J. by involving the police.
c. The Respondent has made many allegations against the Applicant, including the ones produced above. Those allegations are, on the records I have, unsupported. In addition, dealing with those allegations has consumed time and resources. The Respondent is responsible for the additional costs associated with addressing these unsupported allegations.
[28] The conduct of the parties in this case is a significant factor favouring an award of costs to the Applicant.
Time Spent on the Litigation
[29] As I have noted above, this was a factually complex motion. The issues were important and there were voluminous amounts of material on the motion. This brings me to the principle of proportionality. The Applicant is claiming $30,000.00 in costs in this matter inclusive of HST and disbursements. The Respondent states that this amount is totally unreasonable, and that her bill of costs was only $13,000.00
[30] There are some problems with the Respondent’s position. First, the Applicant had to prepare materials to obtain an urgent motion date in this matter. That would have required additional work that the Respondent was not required to engage in.
[31] Second, there was more than one attendance in this matter. At the first attendance before Kumaranayake J., the Respondent sought an adjournment. The Applicant would have been required to prepare for this appearance and would have been put to additional expense in preparing for that appearance. The Respondent’s bill will not reflect any time for counsel for that appearance as she had not yet engaged counsel on these issues.
[32] Third, the Applicant has provided detailed time dockets in support of the bill of costs. Both these detailed time dockets and the amount of time spent on the motion (80 hours in total) suggest that the overall amount of time spent by the Applicant is not unreasonable.
[33] However, there should be a modest deduction from the total amount of costs payable by the Respondent to the Applicant in this case. The Applicant sought a section 30 assessment in this case, and I determined that this request was not urgent. As a result, the Applicant was not successful on all of the issues on the motion.
Conclusion
[34] For the foregoing reasons, the Respondent should be required to pay costs in the sum of $25,000.00 to the Applicant inclusive of HST and disbursements. Those costs are due and payable within thirty (30) days of today’s date.
[35] In the event that the Respondent has not paid those costs, then the Applicant shall be entitled to deduct those costs from the support he is currently paying to the Respondent at a rate of $2,000.00 per month until the amounts are paid off. In the event that deductions are required, the interest owing (if any) on these costs is left to the judge hearing the motion to change to determine. I am not ordering any interest at this time.
LEMAY J
DATE: October 7, 2021
COURT FILE NO.: FS-15-84642
DATE: 20211007
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Brendan Frey
- and - Uptala Manohar Purohit-Frey
COSTS ENDORSEMENT
LEMAY J
DATE: October 7, 2021