COURT FILE NO.: FS-18-91557
DATE: 2021 11 22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SAIKAT KUMAR BANDYOPADHYAY
A. Rick Toor, for the Applicant
Applicant
- and -
SWARNALI CHAKRABORTY
B. Rashdi, for the Respondent
Respondent
HEARD: In Writing
COSTS ENDORSEMENT
PETERSEN, J.
[1] This costs endorsement relates to a family law trial that was conducted over 16 non-consecutive days between January 30, 2020 and March 23, 2021. I issued Reasons for Judgment on September 7, 2021: Bandyopadhyay v. Chakraborty, 2021 ONSC 5943. I have received and reviewed written costs submissions from the parties.
PARTIES’ POSITIONS
[2] Both parties are seeking an order for costs in their favour.
Ms. Chakraborty’s Position
[3] Ms. Chakraborty seeks an order requiring Mr. Bandyopadhyay to pay her costs on a full indemnity basis, in the amount of $77,000, all inclusive. She was represented by two different law firms during this proceeding and was self-represented for a period when her former lawyer, Grant Isaac, was suspended by the Law Society.
[4] Ms. Chakraborty did not submit any supporting documentation to substantiate her claim that she spent a total of $77,000 on litigation costs, nor did she provide a breakdown of the services or disbursements to which those costs relate. It is unclear whether they include pre-trial motions at which costs orders were already made, or other pre-trial steps in the proceeding, such as conferences.
[5] Ms. Chakraborty changed lawyers mid-trial. She states in her written costs submissions that her former counsel, Mr. Isaac, “has placed a lien on the file” and she is “unable to access his bill of costs”. Even if she could not obtain a Bill of Costs from Mr. Isaac, she could have submitted, at minimum, invoices that she paid to him and a Bill of Costs from her current counsel who represented her during the latter part of the trial. She provided the Court with no information to evaluate the accuracy or reasonableness of her claimed expenses.
[6] Instead, she submitted a 255-page brief of irrelevant materials, including email correspondence between the parties, Excel spreadsheets, bank account statements and other financial records. Some of the documents were marked as Exhibits during the trial. Others were not adduced as evidence at trial. She states in her written costs submissions that these documents constitute “evidences that should have been for trial”. She alleges that Mr. Isaac told her the brief of documents had been submitted to the Court when in fact it was not. She was present throughout the trial (except on the first day, when no evidence was adduced). She therefore would have known that the brief was not entered as evidence or marked as an Exhibit.
[7] It is inappropriate and a waste of court resources for Ms. Chakraborty to seek to introduce fresh evidence at this late date, after I have already decided all the issues in dispute on a final basis, except for costs. I gave the brief a cursory review to ascertain what was in it. None of it is relevant to the issue of costs. I refuse to accept the brief as part of her costs submissions and will not rely on its content in fixing costs.
[8] This is not the first time that Ms. Chakraborty tendered irrelevant materials as evidence in the proceeding. In the fall of 2020, in support of a mid-trial interim parenting motion, she adduced multiple affidavits from supporting witnesses that contained inadmissible statements. There were various reasons for the inadmissibility of the statements. Some were unreliable hearsay, some constituted opinion evidence, and others were simply irrelevant. Portions of the affidavits were therefore struck by me. This is but one example of the many ways (discussed below) in which Ms. Chakraborty’s conduct lengthened the proceeding unnecessarily and contributed to increased costs for both parties.
Mr. Bandyopadhyay’s Position
[9] Mr. Bandyopadhyay seeks an order requiring Ms. Chakraborty to pay him costs on a full indemnity basis, in the amount of $218,739.75, all inclusive. He submitted a Bill of Costs prepared by his counsel, Mr. Toor. It provides a general breakdown of the hours spent on various categories of work (e.g. client meetings, drafting affidavit, communications between counsel, attendance at court, preparation for trial, etc.), but not a detailed breakdown of time docketed for each individual task, or the dates when the tasks were performed.
[10] Mr. Bandyopadhyay’s claim for costs does not include fees or disbursements incurred in connection with court appearances prior to the commencement of the trial. The claim is primarily for fees that stem from the trial itself and from motions that were adjudicated during the trial. The first motion was brought by Ms. Chakraborty on the first day of trial and was dismissed after submissions were made, without any evidence being heard. The second motion was brought by Ms. Chakraborty mid-trial. Both parties testified at length in support of their positions on the motion. The third and fourth motions were brought by the parties mid-trial, during a lengthy adjournment of the proceeding due to the COVID-19 pandemic. They submitted voluminous affidavits in support of their respective positions and Mr. Bandyopadhyay was cross-examined on his affidavit during a virtual hearing conducted via video-conference.
[11] The evidence called on the mid-trial motions was deemed to be evidence in the trial. I issued rulings on the motions mid-trial and expressly reserved on the issue of costs of the motions.
FRAMEWORK FOR ANALYSIS
[12] I recently summarized the law regarding the proper framework for analysis of costs claims in family law proceedings in Saroli v Saroli, 2021 ONSC 7491, at paras. 4-25:
Jurisdiction
[4] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that, subject to statutory provisions and the rules of court, the costs of a proceeding are in the discretion of the court. The relevant rules in this case are the Family Law Rules, O.Reg. 114/99.
Purposes of Costs Awards
[5] In family law proceedings, rr. 2(2), 18 and 24 establish a framework for analyzing costs claims. These rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants, (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants, and (4) to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.
Principles for Determining Liability for Costs
[6] The first issue in addressing costs is to determine whether either party is liable to pay the other’s costs.
Success in the Litigation
[7] Subrule 24(1) creates a presumption of costs in favour of the successful party. There are two schools of thought regarding the appropriate approach to determination of a litigant’s success. Some judges have held that settlement offers are the yardstick by which success at trial should be measured: Lawson v. Lawson, 2008 CanLII 23496 (ON SC), at para. 7. Others have held that success should be measured by comparing the outcome at trial with the relief sought by the parties in the litigation, rather than with the terms of any offers: Lazare v Heitner, 2018 ONSC 4861, at para. 16; Guo v. Li, Li and Zhang, 2020 ONSC 2435, at para. 17. I agree with the latter approach.
[8] Success should be measured by comparing the positions of the parties on the issues litigated with the orders made. For the reasons articulated by my colleague Kurz, J. in DeSantis v. Hood, 2021 ONSC 5496, at paras. 40 to 53, I find that offers to settle are not a factor in the determination of success in a proceeding. As will be explained below, settlement offers are nevertheless an important consideration in assessing both liability for costs and quantum of costs.
[9] Where success in a case is divided, the court may apportion costs as appropriate: r. 24(6). Where success is divided equally or roughly equally, it is not uncommon for the court to make no order for costs: Coscarella v. Coscarella, 2000 CanLII 20376 (ON SC), at paras. 18-19; Guo v. Li, Li and Zhang, at para. 56.
[10] In most family law proceedings, there are multiple issues in dispute. It is relatively rare that one party will prevail on every issue at trial. It is therefore not uncommon for both parties to claim to have been successful overall in the litigation, or for one party to argue (as Ms. Saroli does in this case) that success was divided and that costs therefore should not be awarded.
[11] The determination of whether success was truly “divided”, or of which party succeeded overall, does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them: Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.), at para. 3. Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues: Jackson v Mayerle, 2016 ONSC 1556, at para. 66; Thompson v. Drummond, 2018 ONSC 4762, at para. 12; DeSantis v. Hood, at para. 39.
Reasonableness of the Parties’ Conduct
[12] Although there is a presumption of costs in favour of the successful litigant, the Rules do not mandate that the successful party always be awarded costs. A successful party who has behaved unreasonably during a case may be deprived of all or part of their own costs or may be ordered to pay all or part of the unsuccessful party’s costs: r. 24(4).
[13] Settlement offers are one factor for consideration when assessing the reasonableness of parties’ behaviour. Subrule 24(5) provides the following guidance:
In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
Effect of Settlement Offers
[14] Offers to settle (or the absence of an offer to settle) can impact both the issue of liability for costs and the amount of costs awarded when liability is found.
[15] Subrule 18(14) sets out the cost consequences of a failure to accept an offer to settle that complies with the requirements of r. 18:
A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
The burden of proving that a court order is as favourable as or more favourable than an offer to settle is on the party who claims the benefit of this rule: r. 18(15).
[16] To determine whether an order is as or more favourable than a settlement offer, the court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. Rather, what is required is a general assessment of the overall comparability of the offer as contrasted with the orders that were ultimately made: Wilson v. Kovalev, 2016 ONSC 163, at para. 25. Where the offer to settle is not severable, however, the costs consequences set out in r. 18(14) should not be applied unless judgment is more favourable on all issues: Coscarella, at para. 7.
[17] When the court determines liability for costs, it may take into account any written offer to settle, the date it was made and its terms, even if r. 18(14) does not apply: r. 18(16).
Principles for Determining Quantum of Costs
[18] If liability for costs is found, the court must determine the appropriate quantum of costs. Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs: Beaver v. Hill, 2018 ONCA 840, at para. 12.
[19] The Family Law Rules expressly provide that, depending on the reasonableness of the parties’ conduct and on the presence or absence of Offers to Settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded. Subrule 24(12) sets out the following list of factors the court must consider in setting the amount of costs:
(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.
[20] “Any other relevant matter” includes consideration of the financial means of the parties, their ability to pay costs (or to absorb their own costs), and the impact of any costs award on children in their care: C.A.M. v. D.M., 2003 CanLII 18880 (ON CA), at para. 42; Davis v. Davis, 2004 CanLII 19156 (ON SC), at para. 6; and Clark v. Clark, 2014 ONCA 175, at para. 91. A party’s limited financial means will generally be relevant to the appropriate quantum of costs and how payment should be effected, but not to the issue of liability for costs: Izyuk v. Bilousov, 2011 ONSC 7476, at paras. 50-51.
[22] Access to justice is also a relevant consideration. The Court should consider the importance of not unduly deterring potential litigants from pursuing legitimate claims for fear of overly burdensome costs consequences: Jahn-Cartwright v. Cartwright, 2010 ONSC 2263, at para. 4; Izyuk v. Bilousov, at para. 40; Weber v. Weber, 2020 ONSC 6855, at para. 11; and DeSantis v. Hood, at para. 10.
[23] Under the Family Law Rules, judges are not constrained by the normal scales of costs found in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: Beaver v. Hill, at para. 9. However, the presumption of costs in favour of a successful litigant does not support a presumptive “full recovery” approach, nor even “close to full recovery” approach to costs in family law matters: Beaver v. Hill, at paras. 10-11.
[24] The Family Law Rules expressly contemplate full recovery costs in only three specific scenarios. I have already reviewed two of those scenarios above, namely where a party has behaved unreasonably (r. 24(4)) or has beaten an offer to settle under r. 18(14): Mattina, at para. 15. The third scenario is set out in r. 24(8), which stipulates that, “If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.”
[25] Proof of bad faith requires meeting a high threshold. In order to come within the meaning of “bad faith” in r. 24(8), a party’s impugned behaviour must be shown to be “carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court”: S.(C.) v. S.(M.), 2007 CanLII 20279 (ON SC), at para. 17, aff’d 2010 ONCA 196; Scalia v. Scalia, 2015 ONCA 492, at para. 68.
ANALYSIS – LIABILITY FOR COSTS
Determination of Success in the Litigation
[13] Consideration of success is the starting point in determining liability for costs: Mattina, at para. 13. Both parties argue that they are the more successful party in this proceeding.
[14] For the reasons explained below, I have concluded that there was divided success on some significant issues at trial. However, Mr. Bandyopadhyay was entirely successful in all the motions and he achieved markedly greater success overall on the trial issues that consumed the majority of the parties’ resources and most of the court’s time.
[15] There was divided success on the issue of support. Ms. Chakraborty succeeded in her claims for retrospective and prospective spousal support, for retrospective child support, and for a life insurance policy to secure Mr. Bandyopadhyay’s support obligations. However, I dismissed her claim for arrears of child support, granted Mr. Bandyopadhyay’s request for a reduction in the monthly amount of his prospective child support payments, refused to impute income to him for intentional underemployment, and imputed income to her based on expenses unreasonably deducted from her rental income.
[16] Success on the issue of equalization was also divided. Ms. Chakraborty claimed to be owed an equalization payment of $40,009, and she sought a variation in her share to increase it by another $40,000. Mr. Bandyopadhyay claimed to be owed an equalization payment of $72,741. His calculation was premised on the treatment of his Kolkata flat as an asset belonging to Ms. Chakraborty, which I rejected. He resisted Ms. Chakraborty’s request for a variation in the parties’ equalization shares. I ultimately concluded that Ms. Chakraborty was entitled to an equalization payment of $5,922 and an equal division of the family law value of Mr. Bandyopadhyay’s pension at source. I also granted a small variation in her equalization share, increasing the amount by $4,355.
[17] Mr. Bandyopadhyay succeeded in obtaining an order for Ms. Chakraborty to pay him occupation rent, although not in the full amount that he was claiming. This was also a significant matter in which the parties had divided success.
[18] Although there was some divided success in claims for post-separation adjustments, Mr. Bandyopadhyay was overwhelmingly more successful on this major issue overall. I rejected Ms. Chakraborty’s claims for a $30,000 payment to reimburse money withdrawn from her bank account, for a $40,000 payment to reduce the outstanding balance owing on a joint Home Equity Line of Credit (HELOC), for retrospective contributions to utilities associated with the matrimonial home, and for reimbursement of auto insurance benefits arising from a motor vehicle accident. I also rejected her $17,737 claim related to a Notice of Garnishment that she filed.
[19] I granted several of Mr. Bandyopadhyay’s claims for reimbursement of post-separation expenses, including costs paid to amend pleadings, and payments he made toward the HELOC and toward the mortgage, property taxes, utilities and homeowner’s insurance associated with the matrimonial home. I also granted him partial reimbursement of garnished funds, in the amount of $5,500.
[20] Ms. Chakraborty was successful in defeating Mr. Bandyopadhyay’s request for reimbursement of an additional amount of $4,500 in garnished funds, and for reimbursement of auto insurance premiums. The latter two issues were minor and consumed little time during the trial.
[21] With respect to special and extraordinary child-related expenses, there was some divided success, but Mr. Bandyopadhyay was overall much more successful. Many of Ms. Chakraborty’s claims were dismissed because they did not even qualify as s. 7 expenses under the Federal Child Support Guidelines, SOR/97-175 (“FCSG”).
[22] Ms. Chakraborty was unsuccessful in her request for an order that Mr. Bandyopadhyay be required to pay 2/3 of all carrying expenses for the matrimonial home from the date of separation to the date of trial. I divided those expenses equally between the parties.
[23] The most contentious issues at trial – the issues that consumed the most time and expense – were the parenting issues, on which Mr. Bandyopadhyay was entirely successful. He was granted sole decision-making responsibility on major parenting decisions. He achieved an equal shared parenting arrangement and he was entrusted as the custodian of the child’s official documents. In the course of deciding the parenting issues, I found that Ms. Chakraborty’s allegations of family violence by Mr. Bandyopadhyay (i.e., verbal and financial spousal abuse, and physical child abuse) were not credible.
[24] Mr. Bandyopadhyay also succeeded in defeating Ms. Chakraborty’s claim for exclusive possession of the matrimonial home and her request for a valuation of the matrimonial home so she could attempt to purchase his interest.
[25] Mr. Bandyopadhyay was successful in obtaining an order for the sale of the matrimonial home, which he had been seeking since the parties’ separated.
[26] Finally, Mr. Bandyopadhyay was entirely successful in all the motions that were adjudicated during the trial.
[27] As noted above, the first motion was brought by Ms. Chakraborty on the first day of trial. It was a motion to strike Mr. Bandyopadhyay’s Application in its entirety for alleged failure to comply with temporary court orders, specifically an order to pay $4,500 in costs, an order to pay arrears owing on the mortgage, an order to pay 2/3 of the mortgage and property taxes on the matrimonial home on an ongoing basis, an order to consent to a renewal of the mortgage, and an order to obtain and disclose the family law value of his pension. After hearing submissions from counsel, I refused to hear the motion on its merits. I held that it would not be appropriate to dismiss Mr. Bandyopadhyay’s parenting claims even if I concluded that he had committed the alleged breaches, because the child’s best interests needed to govern any parenting orders. I dismissed the motion without prejudice to Ms. Chakraborty’s right to argue, at the end of the trial, that Mr. Bandyopadhyay had failed to comply with court orders, and to seek relief pursuant to R. 1(8).
[28] The second motion was brought mid-trial by Ms. Chakraborty, after she was served with a Statement of Claim from the mortgagee with respect to a foreclosure proceeding on the mortgage for the matrimonial home. She sought to strike Mr. Bandyopadhyay’s financial claims for alleged failure to comply with the above-mentioned temporary court orders, and she sought enforcement of the orders for him to pay mortgage arrears and 2/3 of the mortgage and property taxes on an ongoing basis.
[29] After hearing evidence and submissions, I found that Mr. Bandyopadhyay had complied or substantially complied with most of the interim orders, but had eventually ceased paying the mortgage and property taxes because he was unable to do, given his crushing debt load, support obligations, and inability to access his share of the equity in the matrimonial home. I accepted his explanation of financial hardship as credible, found in his favour, dismissed Ms. Chakraborty’s motion to strike his financial claims, and ordered a variation of the temporary order with respect to mortgage and property tax payments, such that his share of the payments was reduced to 1/3. I also made ancillary orders (some on consent) to assist the parties in avoiding foreclosure on their mortgage.
[30] The third and fourth motions dealt with interim parenting issues and were brought mid-trial. The trial had been suspended for an indefinite period due to the COVID-19 pandemic. Ms. Chakraborty was refusing to permit Mr. Bandyopadhyay to see their son, in contravention of two temporary court orders that granted him regular overnight parenting time. Mr. Bandyopadhyay brought a motion to enforce the parenting orders and Ms. Chakraborty brought a cross-motion to vary them by suspending Mr. Bandyopadhyay’s parenting time. I dismissed her motion. Mr. Bandyopadhyay succeeded in having the interim parenting schedule reinstated pending the completion of the trial.
[31] Based on the above, I find that Mr. Bandyopadhyay was overwhelmingly more successful than Ms. Chakraborty in the proceeding. He is therefore presumptively entitled to costs. The parties’ divided success on the support, occupation rent, and equalization issues will, however, be taken into consideration when I determine whether it is appropriate to apportion costs by reducing the amount payable to Mr. Bandyopadhyay, pursuant to R. 24(6).
Rule 18(14) Cost Consequences
[32] Mr. Bandyopadhyay’s presumptive entitlement to costs can be displaced by the application of R. 18(14). If Ms. Chakraborty can establish that she made an Offer to Settle that satisfies the conditions set out in R. 18(14), then she is “entitled to costs to the date the offer was served and full recovery of costs from that date.”
Ms. Chakraborty’s Purported Offers to Settle
[33] Ms. Chakraborty attached to her costs submissions an undated and unsigned document entitled “Offer to Settle”. She claims that it represents a settlement offer that she or her former counsel delivered to Mr. Bandyopadhyay on some unspecified date in 2019. She submits that, had this offer been accepted by him, “this whole matter would have never gone to trial.” She argues that Mr. Bandyopadhyay’s failure to accept the offer should therefore result in costs in her favour.
[34] There is no evidence to support a finding that the document was served on Mr. Bandyopadhyay in 2019, or at any other time prior to trial. There is no affidavit of service, nor even a copy of correspondence showing that the offer was delivered and establishing the date of its delivery. Moreover, the document is incomplete. It consists of two unnumbered pages containing ten numbered paragraphs followed by a blank paragraph numbered “11”. It does not address the issues of equalization, post-separation adjustments, spousal support or occupation rent, so the terms are not comprehensive and would not have fully resolved the litigation had they been accepted. The document has no date and no signature line, let alone an actual signature. It appears to be a draft. I am not persuaded that it was ever delivered to Mr. Bandyopadhyay.
[35] Even if I found that the document was delivered to Mr. Bandyopadhyay at some point in 2019, his failure to accept the offer would not trigger the cost consequences set out in R. 18(14). The document does not contain any signatures, as required by R. 18(4). Furthermore, the terms of the offer are far more favourable to Ms. Chakraborty than the outcome at trial, so the cost consequences of R. 18(14) would not apply.
[36] Also attached to Ms. Chakraborty’s costs submissions is an email message dated January 29, 2020 at 2:58 PM (i.e., the day before the trial commenced) from her former counsel, Mr. Isaac, to Mr. Bandyopadhyay’s counsel, Mr. Toor. In the email, Mr. Isaac states, “Please be advised that we are preparing an Offer to Settle.” He also advises that the Offer to Settle will include a term requiring Mr. Bandyopadhyay to pay all arrears outstanding with respect to the mortgage on the matrimonial home, support, and s. 7 expenses. No other terms of settlement are discussed in the email.
[37] It is unclear whether an Offer to Settle was in fact prepared by Mr. Isaac and served on Mr. Bandyopadhyay prior to the commencement of the trial. No such Offer was included with Ms. Chakraborty’s submissions. The email does not, in and of itself, constitute a written Offer to Settle. It certainly does not trigger the application of R. 18(14).
[38] Mr. Bandyopadhyay’s presumptive entitlement to costs as the successful litigant is therefore not displaced by the application of R. 18(14).
Mr. Bandyopadhyay’s Offers to Settle
[39] Mr. Bandyopadhyay is not required to rely on R. 18(14) to establish his entitlement to costs because he is the successful party in the litigation. However, the divided success on some significant issues means that costs can be apportioned under R. 24(6). If Mr. Bandyopadhyay establishes that he made an Offer to Settle that satisfies the conditions of R. 18(14), he will be entitled to costs without a reduction for apportionment. Moreover, he is not automatically entitled to his costs on a full recovery basis simply because he was the more successful litigant, but the application of R. 18(14) would entitle him to at least some of his costs on a full recovery basis (i.e., the costs incurred after the date of the offer). I will therefore consider whether Mr. Bandyopadhyay made any Offers to Settle that trigger the cost consequences set out in R. 18(14).
[40] Mr. Bandyopadhyay made three comprehensive Offers to Settle prior to trial, dated August 2, 2019, January 14, 2020 and January 28, 2020. His costs submissions contain evidence of delivery of these Offers to Ms. Chakraborty’s former counsel, Mr. Isaac. If he can demonstrate that any of these Offers meets the conditions set out in R. 18(14), then he is entitled to his costs and to full recovery of costs from the date of the Offer in question.
[41] Upon review of the Offers, I have concluded that none triggers the costs consequences of R. 18(14). The Offer dated January 28, 2020 does not meet the requirements of R. 18(14)2 because it was not made at least seven days before the trial commenced. Furthermore, the terms of the Offers were not severable, and Mr. Bandyopadhyay has not established that my final judgment was as favourable or more favourable to him on all issues. The comprehensive Offers therefore do not trigger the cost consequences set out in R. 18(14).
[42] Mr. Bandyopadhyay also made an Offer to Settle the interim parenting issues that were the subject of motions filed and heard mid-trial on October 2, 2020. That Offer was made on September 8, 2020. It satisfies all the conditions set out in R. 18(14). It was made more than a day prior to the motions hearing. It did not expire, was not withdrawn, and was not accepted by Ms. Chakraborty. Mr. Bandyopadhyay obtained orders from the court that were as favourable to or more favourable than the terms of his proposed settlement of the motions. He is therefore entitled to costs of the motions, and to full recovery of costs associated with those motions, from the date of the Offer to the date of the motions hearing.
Bad Faith Conduct
[43] Mr. Bandyopadhyay’s presumptive entitlement to costs as the successful litigant, and the costs consequences triggered by R. 18(14) in respect of the mid-trial parenting motion, can be overridden by a finding of bad faith conduct on his part: R. 24(8).
[44] Ms. Chakraborty submits that “the entire length of the uncomplicated proceeding was extended due to the high handed and bad faith conduct of the applicant”. In support of this submission, she argues that Mr. Bandyopadhyay constantly failed to abide by temporary court orders “about the mortgage, support payments, and safety issues with the child”. This is not accurate. There were no temporary pre-trial court orders addressing child safety issues and Mr. Bandyopadhyay complied with the temporary support orders. He also complied with an order to pay arrears on the mortgage. He did breach a temporary order with respect to payment of 2/3 of the mortgage and property taxes for the matrimonial home, but as noted above, I found that he did so only because he genuinely did not have the means to continue making the requisite payments. In these circumstances, his non-compliance with the order does not amount to bad faith.
[45] Ms. Chakraborty further argues that Mr. Bandyopadhyay pursued a litigation strategy of “bringing constant motions” intended “to deplete her cash reserves” so that she could no longer carry on the litigation and would be ”forced to succumb to his unreasonable demands”. This argument has no basis in fact. Both parties brought motions prior to the trial and Mr. Bandyopadhyay’s motions were not part of a pattern of aggressive litigation.
[46] Mr. Bandyopadhyay’s pre-trial motions related to his parenting time and to the sale of the matrimonial home. His parenting motions were precipitated by Ms. Chakraborty’s refusal to permit him any overnight time with their son. His motion for sale of the matrimonial home was precipitated by the financial crisis that he was experiencing and his desperate need to access his share of the equity in the property. These motions were reasonable in the circumstances, even though the motion for sale of the home was dismissed. There is no evidence that Mr. Bandyopadhyay was engaging in inappropriate litigation tactics to try to deplete Ms. Chakraborty’s resources.
[47] There is simply no basis upon which to find that Mr. Bandyopadhyay engaged in bad faith conduct.
[48] Mr. Bandyopadhyay does not allege that Ms. Chakraborty’s conduct was in bad faith, but he does argue that her conduct was unreasonable and egregious. I will address that argument below.
Unreasonable Litigation Conduct
[49] Mr. Bandyopadhyay’s entitlement to costs can be displaced by the application of R. 24(4). In other words, he may be deprived of all or part of his costs, or he may be ordered to pay all or part of Ms. Chakraborty’s costs, if he behaved unreasonably.
[50] Ms. Chakraborty submits that various aspects of Mr. Bandyopadhyay’s conduct was unreasonable. I will address each of her submissions in turn.
[51] First, she relies on his refusal in 2019 to renew the mortgage on her desired terms. This was not unreasonable in the circumstances (as set out in paragraphs 24-26 of my Reasons for Judgment).
[52] Second, she relies on his breach of the temporary order to pay 2/3 of the mortgage and property taxes on the matrimonial home. She is aware of my findings that he made good faith efforts to comply and that his eventual breach was effectively beyond his control. Compliance with the order was simply not feasible given his financial circumstances. This is not unreasonable behaviour that should attract a costs sanction.
[53] Third, Ms. Chakraborty alleges that Mr. Bandyopadhyay should be denied his costs because he initiated an inappropriate and unwarranted child protection application shortly after the parties separated. I have no information about that separate proceeding and therefore cannot assess whether it supports a finding that Mr. Bandyopadhyay behaved unreasonably in this litigation.
[54] Ms. Chakraborty argues that Mr. Bandyopadhyay is to blame for the absence of relevant information because he ought to have included documents from the child protection proceeding in his Trial Record. I disagree. The proper contents of a Trial Record are dictated by R. 23(1). Mr. Bandyopadhyay was under an obligation to serve Ms. Chakraborty with the relevant documents under R. 35.1(8) and (9), but he was not obligated to include them in his Trial Record. Indeed, it would not have been appropriate for him to do so. If Ms. Chakraborty believed that those documents were relevant to the issues at trial, including the issue of costs, then she ought to have put them before the court.
[55] Fourth, Ms. Chakraborty alleges that Mr. Bandyopadhyay unnecessarily lengthened what was essentially an uncomplicated proceeding. However, she provides no particulars to support this allegation. I found (at paragraph 39 of my Reasons for Judgment) that a small portion of the extended length of the trial was attributable to Mr. Bandyopadhyay’s tendency to give answers that were unresponsive to the questions asked. He went on tangents and had to be cautioned repeatedly by me to focus. He was not, however, being deliberately evasive or intentionally prolonging his testimony. It was just his manner of speaking, which I would not characterize as “behaving unreasonably” within the meaning of R. 24(4). He did not, in any other respects, contribute to prolonging the trial unnecessarily.
[56] Fifth, Ms. Chakraborty argues that Mr. Bandyopadhyay paid no child or spousal support to her after they separated, prior to her bringing a motion for support in October 2018. This is true, but for the majority of that time, he was paying 100% of the mortgage, home insurance, and property taxes for the house that she was occupying exclusively, and she was refusing to cooperate with a sale of the home. In the circumstances, I would not characterize the non-payment of support as unreasonable behaviour that should attract cost consequences.
[57] Sixth, Ms. Chakraborty relies on Mr. Bandyopadhyay’s failure to accept her purported Offer to Settle in 2019 as evidence of his unreasonableness: R. 25(5)(c). I have already found that the (unsigned and undated) offer is likely a draft that was not served on him, but even if I accepted that it was finalized and delivered, I would not conclude that Mr. Bandyopadhyay’s failure to accept it was unreasonable. The proposed terms of settlement set out in the document are not severable. They are so favourable to Ms. Chakraborty that the offer does not represent a realistic compromise on the issues in dispute. In these circumstances, a failure to accept it would be reasonable and would not attract any cost consequences.
[58] Seventh, Ms. Chakraborty notes that Mr. Bandyopadhyay made no Offers to Settle until August 2019, approximately 18 months after they separated. Failure to make an Offer to Settle is a relevant factor in deciding whether a party has behaved reasonably or unreasonably: R. 24(5)(a). Early offers are preferable, but it is not always feasible to make an offer at the outset of litigation, prior to disclosure being completed. In this case, Ms. Chakraborty delayed in making full financial disclosure.
[59] Mr. Bandyopadhyay ultimately made three comprehensive Offers to Settle, as noted above. The terms of those offers represented reasonable compromises on the issues in dispute. Overall, the offers show that Mr. Bandyopadhyay was willing to resolve the matter without resort to litigation and he made good faith efforts to do so prior to the trial. His failure to make an earlier Offer to Settle, in the absence of full financial disclosure from Ms. Chakraborty, is not unreasonable.
[60] None of the above conduct warrants a costs sanction against Mr. Bandyopadhyay.
[61] There are, however, two aspects of Mr. Bandyopadhyay’s litigation behaviour that I find to be unreasonable. First, as submitted by Ms. Chakraborty, he failed to comply with a court order to obtain a family law valuation of his pension. He provided no explanation for this breach, which made it impossible for the value of his pension to be included in the calculation of his net family property for equalization purposes.
[62] Second, although Ms. Chakraborty did not raise it, I noted in my Reasons for Judgment that Mr. Bandyopadhyay disclosed and submitted only his Canada Revenue Agency Notices of Assessment (NOAs) and not his completed T1 General income tax returns for each of the years since the parties separated. He therefore failed to satisfy his financial disclosure obligations under s. 21(1)(a) of the FCSG and R. 13(3.1)1. This complicated the determination of his income for support purposes.
[63] Any intentional breach of a court order and any failure to comply with disclosure obligations constitutes unreasonable conduct that should have cost consequences. Breaches of court orders and incomplete financial disclosure must never be condoned by the Court. However, there are degrees of egregiousness of breaches and of failures to disclose, which impact the severity of costs sanctions that should follow.
[64] In this case, Mr. Bandyopadhyay’s failure to obtain a valuation of his pension did not preclude an order for the pension to be equalized at source. His failure to produce his complete income tax returns did not preclude a determination of his income based on his NOAs. His conduct was inexcusable and unreasonable, but it was not so severe as to warrant a complete deprivation of his costs, or an order for costs in Ms. Chakraborty’s favour. It will, however, be taken into consideration when I determine the appropriate amount of costs to award to him.
Conclusion Regarding Liability for Costs
[65] Based on the above, I dismiss Ms. Chakraborty’s claim for costs. I conclude that Mr. Bandyopadhyay is entitled to costs and that Ms. Chakraborty is liable to pay those costs.
[66] As a result of his September 28, 2020 Offer to Settle, Mr. Bandyopadhyay is entitled to at least a portion of his costs (i.e., relating to the mid-trial interim parenting motions) on a full recovery basis, from the date of that Offer to the date of the motion hearing on October 2, 2020. I must now determine whether he should be awarded the remainder of his costs on a full recovery basis and what the total amount of costs should be.
ANALYSIS – AMOUNT OF COSTS
[67] As noted above, R. 24(12) sets out a non-exhaustive list of factors that the court must consider in determining the amount of costs. One of the relevant factors is the reasonableness and proportionality of each party’s behaviour as it relates to the complexity and importance of the issues.
[68] Both parties in this case acknowledge that the issues were of tremendous importance to them. Ms. Chakraborty argues that the fees claimed by Mr. Bandyopadhyay ($218,739.75) are nevertheless excessive. She submits that this entire matter, including the mid-trial motions, was “extremely limited and uncomplicated” and therefore does not warrant a high amount of costs. She points to her own costs of $77,000 as a reasonable and proportionate amount.
[69] It is often helpful as a trial judge to consider both parties’ Bills of Costs in determining a fair and proportionate amount of costs that a losing party could reasonably expect to pay for a proceeding. In this case, however, I do not have a Bill of Costs or Outline of Costs from Ms. Chakraborty. I merely have her submission that she spent a total of $77,000 on two law firms’ fees. She made that submission after I issued my judgment, when she must have been aware that she was likely going to be found liable for costs. Her submission is not supported by any documentation. Given the adverse credibility findings that I made against her at trial, I am doubtful of the veracity of her claim that she incurred only $77,000 in legal costs for this proceeding.
[70] The procedure followed at trial was unusual and was complicated by the mid-trial motions. The parties and their counsel had to pivot mid-trial to focus on interim issues, then return to the trial issues after each motion was completed. This no doubt required additional preparation time for the hearing dates.
[71] The scope of the case was not limited. There were multiple issues to adjudicate. In addition to rulings on mid-trial motions, I issued a 133-page judgment after the trial.
[72] I agree, however, that none of the issues adjudicated was particularly complex, either factually or legally. As I noted in paragraph 39 of my Reasons for Judgment, the trial should not have taken as long as it did (i.e., 16 days).
[73] I disagree with Ms. Chakraborty’s submission that Mr. Bandyopadhyay was the “author of the delay” and was largely responsible for the extended length of the trial. He contributed minimally to the excessive duration of the trial by meandering somewhat during his testimony, but that accounts for only, at most, one day of trial. As I noted in paragraph 40 of my Reasons for Judgment, Ms. Chakraborty contributed to the delay with frequent late appearances in court by her and her counsel. I also noted,
By far the primary cause of delay that unnecessarily prolonged the trial was the disruptive behaviour of Ms. Chakraborty’s first counsel, Mr. Isaac. He repeatedly interrupted the proceedings, disregarded the rules of evidence, raised issues and objections that patently had no merit and frequently re-argued issues that had already been decided. I cautioned him repeatedly and warned him that his conduct could have cost consequences for his client.
[74] Ms. Chakraborty argues that it would be prejudicial and unfair to punish her with a high costs award because of her former counsel’s behaviour. I disagree. She retained Mr. Isaac near the beginning of the proceeding. A review of the pre-trial Endorsements makes it clear that his disruptive and unprofessional behaviour did not commence at trial. She observed how he was conducting the litigation from the start. She could have instructed him to tone it down or could have terminated his retainer and changed counsel much sooner. She chose to keep him as her lawyer, even after his licence was suspended temporarily by the Law Society. She did not change lawyers until part way through the trial.
[75] Ms. Chakraborty was present in court and on the video-conference motion hearing when I repeatedly cautioned Mr. Isaac about his rudeness and unprofessionalism. She was aware of my evidentiary and procedural rulings against her, which exposed the lack of merit to the positions that she was taking. She observed my expressed frustration at Mr. Isaac’s persistent attempts to re-argue rulings that I made against her. She was therefore aware that court resources were being wasted, that the trial was being prolonged unnecessarily, and that costs were escalating because of the manner in which her counsel was advocating on her behalf. She did nothing to curtail Mr. Isaac’s inappropriate conduct, despite my warnings that it would attract cost consequences for her. She cannot now disavow responsibility for the way that her lawyer conducted the litigation on her behalf.
[76] Moreover, Ms. Chakraborty’s own personal conduct was also egregious, independently of her former counsel’s conduct. Among other things,
a) She failed to appear on the first day of trial, with no explanation provided.
b) She filed a Request for Garnishment (purportedly based on temporary court orders) that included inflated amounts and inappropriately diverted funds owing to the mortgagee to herself. This Request resulted in garnishment of funds from Mr. Bandyopadhyay’s wages, which were not actually owed to her (or owed at all). The garnishment added to Mr. Bandyopadhyay’s serious financial hardship.
c) She repeatedly and flagrantly breached court orders with respect to Mr. Bandyopadhyay’s parenting time, both prior to the trial and during the trial. She significantly interfered with Mr. Bandyopadhyay’s relationship with their son, including a period of approximately 16 months when she prevented the child from seeing his father in person.
d) She made unsubstantiated claims of family violence against Mr. Bandyopadhyay (including physical child abuse) to try to gain advantage in the litigation.
e) She objected to the admissibility of the report prepared by the Office of the Children’s Lawyer, despite R. 23(1)4.
f) She violated a temporary court order to pay 1/3 of the homeowners’ insurance premiums for the matrimonial home, even though she was enjoying exclusive possession of the home at the time.
g) After obtaining a temporary court order to prohibit the sale or encumbrance of Mr. Bandyopadhyay’s flat in Kolkata, India, she commenced duplicative and unnecessary legal proceedings against Mr. Bandyopadhyay in India with respect to the property.
h) She violated a court order by refusing to cooperate with the valuation of the Kolkata flat.
i) She violated a court order by failing to attend for a valuation of the parties’ jewelry. A significant amount of court time would have been saved had the jewelry been valued pre-trial.
j) She violated a mid-trial court order to pay 2/3 of the mortgage, property taxes and home insurance premiums on the matrimonial home, even though she was enjoying exclusive possession of the home and was in receipt of rental income from a tenant.
k) She violated a mid-trial court order to consent to the use of the parties’ HELOC funds to pay arrears on the mortgage.
l) She violated a mid-trial court order to remit garnished funds to the mortgagee to pay arrears on the mortgage; she used the funds to pay her lawyer’s fees instead.
m) After submitting affidavits from supporting witnesses on the mid-trial interim parenting motion, she resisted producing the witnesses for cross-examination. She ultimately produced most of them, but refused to produce one of them, whose affidavit evidence was then struck from the record.
[77] Furthermore, Ms. Chakraborty did not make any reasonable Offers to Settle and she did not accept Mr. Bandyopadhyay’s Offers, nor did she respond to his Offers with a counteroffer. Although none of Mr. Bandyopadhyay’s Offers trigger the cost consequences of R. 18(14), they are nevertheless relevant to the issue of the parties’ reasonableness: R. 18(16) and R. 24(12)(a)(iii). Mr. Bandyopadhyay achieved an outcome at trial that was as favourable or more favourable to him than most (albeit not all) of the terms of settlement that he proposed. This underscores the reasonableness of his approach to the litigation.
[78] In her costs submissions, Ms. Chakraborty states that she “did not receive any written agreements or assurance in his ‘offers to settle’ that applicant’s drinking is under check and child is ‘not left alone’.” This is not a satisfactory explanation for her rejection of his settlement offers. There is no evidence that the child was ever left alone while in Mr. Bandyopadhyay’s care. Ms. Chakraborty’s concern about Mr. Bandyopadhyay’s drinking was twice dismissed by motions judges as unsubstantiated. I ultimately found (at paragraphs 200-208 of my Reasons for Judgment) that Mr. Bandyopadhyay had a problem with excessive alcohol consumption during the marriage, but that there was no evidence of alcoholism post-separation, and more importantly, no evidence of him being impaired while the child was in his care. Moreover, if Ms. Chakraborty was genuinely concerned about her son’s welfare in Mr. Bandyopadhyay’s care, she could have counteroffered his offers by proposing acceptance of all the financial and property terms, so that only the parenting issues would go to trial.
[79] I note that Ms. Chakraborty’s written submissions on costs include statements that are contrary to findings that I made at trial. For example, she states that she rejected Mr. Bandyopadhyay’s proposed terms of settlement of parenting issues because their son was coming home to her “hurt” after visits with his father, and she asserts that these issues “were never properly investigated.” I made contrary findings of fact at paragraph 196 of my Reasons for Judgment. This inappropriate submission by Ms. Chakraborty is typical of her tendency to try to relitigate issues that have been decided in Mr. Bandyopadhyay’s favour. This was a problem throughout the trial, which lengthened the proceeding unnecessarily.
[80] Finally, I wish to address Mr. Bandyopadhyay’s submission that Ms. Chakraborty “employed a litigation strategy of creating a negative atmosphere around [him] and an overly adversarial tone, unnecessarily lengthening the trial.” I agree that she was largely responsible for the escalation in inter-personal conflict in this case, which in turn contributed to prolonging the trial.
[81] Parties in family law matters are often struggling with bitterness, anger, and other negative emotions in the aftermath of the breakdown of their relationship. Unfortunately, the adversarial court process can inflame the antagonism between them, even though the Family Law Rules are designed to encourage settlement. High conflict cases are not uncommon in this court, especially when there are children involved. While it is undesirable, it is also understandable, in the family law context, that a party might become entrenched in their positions, or might adopt a confrontational and accusatorial approach toward the opposing party. Court resources should not, however, be deployed to try to punish an ex-spouse for perceived marital transgressions, or to demonize them for the sake of personal vindication. Ms. Chakraborty did both of these things in this case.
[82] Ms. Chakraborty used this proceeding, including the trial, as part of a concerted campaign to disparage Mr. Bandyopadhyay (and his new spouse) within their social circle and larger community. She attempted to adduce irrelevant bad character evidence by tendering supporting affidavits and calling witnesses to testify about his allegedly poor reputation within the Bengali community. Her submissions also included personal attacks on his character. For example, her lawyer’s closing remarks included submissions that Mr. Bandyopadhyay is a “bully” who “insults and speaks down to people”, “tries to control everyone”, and “makes a fool of himself” in public; that he is no longer welcome at community events because “everyone at those gatherings hated him”. There were other personal attacks that do not need to be repeated. These submissions were of no assistance to the court in adjudicating the issues in dispute. Their only purpose was to hurt and malign Mr. Bandyopadhyay. The court’s resources should not be deployed in that fashion. This type of personal vilification is inappropriate and constitutes unreasonable litigation behaviour.
[83] Ms. Chakraborty’s unreasonable litigation behaviour was egregious and must be sanctioned. I will therefore order costs payable to Mr. Bandyopadhyay on a close-to-full recovery 90% basis. Full recovery of all costs is not appropriate because: (1) there was divided success on a few significant issues, and (2) Mr. Bandyopadhyay engaged in some relatively minor but nevertheless unreasonable litigation conduct that cannot be overlooked or condone.
[84] This award of 90% of overall costs takes into account the fact that Mr. Bandyopadhyay is entitled to costs of the mid-trial parenting motions on a full recovery basis, from the date of his Offer to settle (September 28, 2020) to the date of the motion hearing (October 2, 2020). His Bill of Costs does not itemize specifically the fees incurred during that time.
[85] The final issue is to fix the precise amount of costs to be awarded to Mr. Bandyopadhyay. Ms. Chakraborty has the means to pay 90% of the amount sought by him ($218,739.75 x .90 = $196,866) from her share of the net proceeds of the sale of the matrimonial home, and from the net proceeds of the assignment of the parties’ interest in an investment condominium.
[86] According to trust statements, a total of $151,560 is being held in trust from the condominium assignment, and $487,143.61 is being held in trust from the sale of the home, after $5,000 was advanced to Ms. Chakraborty to pay for her moving expenses (as ordered by me). She is entitled to half the trust monies, subject to an adjustment for the $5,000 advance, and subject to my order (at paragraph 340 of my Reasons for Judgment) to withhold $28,500 from her share until such time as she formally discontinues her legal action in India pertaining to Mr. Bandyopadhyay’s Kolkata property.
[87] The parties are therefore each entitled to $246,071.80[^1] from the net proceeds of sale of the matrimonial home. Ms. Chakraborty has already received a $5,000 advance, so her remaining share is $241,071.80. An amount of $28,500 will be withheld from her share, so she only has immediate access to $212,571.80. She is also entitled to half of the net proceeds from the condominium assignment, in the amount of $75,780.
[88] Ms. Chakraborty submits that Mr. Bandyopadhyay is claiming her entire share of the proceeds of sale from the matrimonial home so that she will be left with “nothing ever to buy or rent a decent place”. If he were awarded 90% of the full amount of costs that he is claiming, her share of the property proceeds would be significantly depleted, but she would still receive approximately $120,000 (with a portion withheld until she discontinues the law suit in India). Combined with the monthly spousal support and child support that I ordered, and her own employment income, she would be able to afford appropriate rental accommodations for herself and the parties’ son. I am not concerned that the award would deprive either her or their child of suitable housing.
[89] However, all costs awards must be governed by the principles of reasonableness and proportionality. I cannot order 90% of the costs claimed by Mr. Bandyopadhyay simply because Ms. Chakraborty has the ability to pay it.
[90] Upon review of the Bill of Costs submitted by Mr. Toor (Mr. Bandyopadhyay’s lawyer), I conclude that his hourly rate is reasonable based on his year of call and level of experience. However, the time spent on various tasks was somewhat excessive relative to the importance and complexity of the issues. Moreover, some of the tasks should have been delegated to a junior associate, student, clerk or administrative assistant (such as the preparation of nine volumes of exhibits) to contain costs.
[91] I should note that Mr. Toor exhibited professionalism and remarkable restraint in dealing with the opposing party’s inappropriate litigation conduct in this case. He did not engage unnecessarily in pointless disputes initiated by Mr. Isaac and did not rise to the bait when his client was personally attacked by Ms. Chakraborty and her counsel. He tried to minimize costs by remaining focused on the issues to be adjudicated.
[92] After taking all relevant factors into consideration, I conclude that the amount of costs sought ($218,739.75) is disproportionate and excessive in relation to the importance and complexity of the issues, but not by much. This was a long 16-day trial with voluminous exhibits. Mr. Toor had to prepare to cross-examine multiple witnesses. He had to prepare his own client to testify for several days. He had to review (and sometimes respond) to copious correspondence from opposing counsel addressed to him and (inappropriately) addressed to the court. The trial was interrupted by an extended break and the lack of continuity necessitated additional work to prepare for the resumption of the proceeding. Case management teleconferences were also necessitated by the break. The teleconferences were more time consuming than they should have been because of Mr. Isaac’s disruptive conduct.
[93] The mid-trial motions added a significant additional dimension to the proceeding. Lengthy affidavits needed to be drafted and reviewed in connection with the interim parenting motions, which could have been avoided had Ms. Chakraborty either abided by the existing court orders, or accepted Mr. Bandyopadhyay’s Offer to Settle. Ms. Chakraborty accused Mr. Bandyopadhyay of child abuse and prevented him from seeing their son for over a year, so the parenting issues were of extreme importance to him.
[94] Mr. Toor spent a total of 516.2 hours on the file. His attendance in court, alone, amounted to 113.8 hours (excluding all pre-trial appearances). That means he spent almost 3.5 hours outside of court for every hour in court. That amount of time is excessive.
[95] While in many cases I would find that a ratio higher than 2:1 hours (i.e., two hours of preparation for each hour in court) is excessive, in the particular circumstances of this case, I find that a ratio of 3:1 is fair, reasonable and proportionate. This formula produces a total of 455.2 hours (including 113.8 hours in court). Those hours translate (at Mr. Toor’s rate) into fees in the amount of $170,700.
[96] Mr. Bandyopadhyay is entitled, based on my findings above, to recover 90% of his reasonable costs ($170,700 x 0.90) in this case, or $153,630, plus HST. Although this costs award is high relative to the amounts that were at stake in the trial, it is proportionate, given the importance of the issues, the length of the trial and the added complexity of the mid-trial motions. Moreover, the elevated scale (i.e., close to full recovery) of costs is justified by the need to promote settlements in family law proceedings and to discourage and sanction egregiously inappropriate litigation misconduct.
ORDERS
[97] I therefore make the following orders:
Ms. Chakraborty is required to pay $173,601.90[^2] in costs, all inclusive. This payment shall be made forthwith from the net proceeds of sale of the matrimonial home.
The $487,143.61 net proceeds of sale, currently held in trust, shall immediately be disbursed as follows:
(a) An amount of $173,601.90 shall be released to Mr. Toor, in trust for Mr. Bandyopadhyay, to satisfy the above costs order.
(b) An amount of $28,500, belonging to Ms. Chakraborty, shall continue to be held in trust until such time as she formally discontinues her legal action in India pertaining to the Kolkata flat.
(c) An amount of $38,969.91 shall be released directly to Ms. Chakraborty (this amount takes into account the $5,000 advance that she already received).
(d) The remaining amount of $246,071.80 shall be released directly to Mr. Bandyopadhyay.
- The $151,560 net proceeds from the assignment of the Rathburn condominium, also being held in trust, shall immediately be divided equally and 50% released directly to each of the parties.
NOTE: If either party believes that I have made any mathematical errors in any of the calculations in this Endorsement, they should bring the issue to my attention, via email to my judicial assistant, with a copy to the opposing party, and I will address it via teleconference and make any necessary correction(s).
Petersen, J.
Released: November 22, 2021
COURT FILE NO.: FS-18-91557
DATE: 2021 11 22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SAIKAT KUMAR BANDYOPADHYAY
Applicant
– and –
SWARNALI CHAKRABORTY
Respondent
COSTS ENDORSEMENT
Petersen J.
Released: November 22, 2021
[^1]: $487,143.61 + $5,000 = $492,143.61 ÷ 2 = $246,071.80
[^2]: $153,630 x 1.13 (including HST) = $173,601.90