Court File and Parties

COURT FILE NO.: FS-16-87188 DATE: 2022 04 07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AMRIT PAL SINGH AHLUWALIA Applicant

• and -

KULDEEP KAUR AHLUWALIA Respondent

Counsel: M. Roshan for the Applicant Self-Represented Respondent

HEARD: In Writing

REASONS ON COSTS

MANDHANE J.

[1] The Applicant/Father, Amrit Pal Singh Ahluwalia, and the Respondent/Mother, Kuldeep Kaur Ahluwalia, appeared before me for an 11-day trial to determine four issues: property equalization, child support, spousal support, and the Mother’s claim for damages in relation to family violence. I released my Reasons for Judgment on February 28, 2022 (*Ahluwalia v. Ahluwalia*, 2022 ONSC 1303), and Supplementary Reasons for Judgment on March 10, 2022 (*Ahluwalia v. Ahluwalia*, 2022 ONSC 1549).

[2] At para. 175 of my Reasons for Judgment, I noted that the Mother was more successful at trial and that she was presumptively entitled to costs. I ordered the parties to either come to an agreement on costs or to make brief submissions. Both parties have now served and filed submissions.

[3] In *Serra v. Serra*, 2009 ONCA 395, 66 R.F.L. (6th) 40, the Court of Appeal for Ontario confirmed that costs rules are designed to foster three important principles: to partially indemnify successful litigants for the cost of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour. The assessment of costs is not a mechanical exercise; the goal is to order payment of an amount that is fair and reasonable given all the circumstances of the case.

[4] The Mother says that she was more successful at trial and asks me to award costs on a substantial indemnity basis in the amount of $42,500. As a self-represented litigant at trial, this amount includes her own preparation time, as well as $17,587 in legal fees paid to previous counsel and agents. She says that substantial indemnity costs are justified based on the Father's unreasonable conduct and her more favorable offers to settle.

[5] The Father says that success was divided such that each party should bear their own costs. If I award costs to the Mother, he asks that I reduce the quantum and only order them payable on a partial indemnity basis given the parties’ divided success, the novelty of the Mother’s tort claim, and his 2018 offer to settle.

[6] For reasons that follow, I order that the Father shall pay the Mother $20,000 in costs, all inclusive. This amount accounts for the Mother’s relative success at trial, the parties’ reasonable and proportional conduct, the complexity of the legal issues coupled with the relative simplicity of the factual issues, and the Mother’s offer made on January 7, 2022.

Should costs be apportioned?

[7] According to Rule 24(1) of the Family Law Rules, O. Reg. 114/99, the successful party is presumptively entitled to costs. Where success is divided, I have to discretion to apportion costs as appropriate: Rule 24(6).

[8] The Father argues that success was divided. Both parties submitted charts summarizing their positions at trial compared with my orders at trial. The Father says that he was more successful on the issues of imputation of income to the Mother, and valuation of his business for equalization purposes, while the Mother says she was more successful at trial on the issues of imputation of income to the Father, spousal support, and tort damages.

[9] While these charts were certainly helpful aides, success must be considered holistically based on the live issues at trial, and how each party’s success impacted the final awards made: *Boland v. Boland*, 2012 ONCJ 239, 22 R.F.L. (7th) 368, at para. 22. Success cannot be determined by filling in a scorecard with pleadings on one side, and court orders on the other. In a complicated family trial, each party will routinely have some degree of success on one or more issues. In short, “some success” may not be enough to impact the presumption in Rule 24 that the (more) successful party is entitled to costs: *Scipione v. Scipione*, 2015 ONSC 5982, 68 R.F.L. (7th) 66, at paras. 68-70.

[10] While acknowledging the Father’s limited success, I am not prepared to apportion costs in this case. Overall, it is clear that the Mother was more successful at trial, obtaining substantial orders for retroactive spousal and child support, an equalization payment, and substantial damages to compensate her for the abuse during the marriage. The issues upon which the Father was successful made only a marginal difference in my overall calculations of the money owed.

[11] Moreover, the Mother’s success in having the court recognize a new tort of family violence is notable. This was by far the most contentious issue at trial and was addressed at length in each party’s written submissions. On the second most significant family law issue, the Father’s income for support purposes, the Mother was also more successful at trial.

What is the appropriate costs award?

[12] In setting the proper amount of costs to award, I must consider the reasonableness and proportionality of each parties’ behaviour as it relates to the importance and complexity of the issues, including their time spent, any written offers, any legal fees, and any other relevant matter: Rule 24(12). I am not bound by the Rules of Civil Procedure, R.R.O., Reg. 194, since the Family Law Rules expressly provide that, depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded: *Beaver v. Hill*, 2018 ONCA 840, 143 O.R. (3d) 519, at paras. 11-19.

[13] Both parties’ have demonstrated proportionality in their approach to the litigation and were prepared for trial. There were no examinations, and no excessive resort to motions. With the assistance of the court, the parties were able to resolve the parenting issues on consent and narrow their witness lists prior to commencement of trial. Ms. Roshan, the Father’s counsel, was patient when dealing with the self-represented litigant, and helpful in terms of assisting the Mother to share and upload exhibits during trial.

[14] While I accept that the Mother’s novel tort claim raised complex legal issues, the factual issues were relatively simple and boiled down to a credibility assessment. The Mother’s evidence at trial was focused. She did not, for example, rely on expert evidence, and did not call any treating physicians or counselors.

[15] The Mother’s legal fees were modest since she was unrepresented at trial. That said, they included amounts that are not properly recoverable at trial (i.e., for attendance at conferences and mediations) and should be limited to $10,000.

[16] The Mother is entitled to claim some fees for her own preparation time: *Isyuk v. Bilousov*, 2011 ONSC 7476, 7 R.F.L. (7th) 358. The Mother asked me to set her hourly rate at $150 per hour and allow her 240 hours of preparation time. I find that the Mother’s hourly rate is properly set at $125 per hour. This is commensurate with the fees usually charged by a senior law clerk. The Mother was well prepared for trial and submitted numerous documents requested by the court, including submissions and calculation aides. I would however discount the Mother’s preparation time somewhat, because I agree with the Father that some of the costs are excessive (72 hours responding to emails, attendance before Pierce J., etc.). The Mother’s recoverable costs for personal preparation time is limited to $20,000 (or 160 hours).

[17] Having found that the appropriate quantum of recoverable costs is $30,000, I must now consider whether to increase or decrease that amount based on the conduct of the parties and/or their offers to settle.

[18] Both parties allege that the other party behaved unreasonably leading up to trial. I disagree. The Mother’s decision not to participate in mediation was reasonable given my findings at trial about family violence, the clear power imbalance between the parties in terms of this litigation, and later because of the outstanding criminal charges. On the other hand, given that this matter had been outstanding since 2016, it was also entirely reasonable for the Father to resist a second adjournment of the trial as sought by the Mother in 2022.

[19] While the Father’s conduct in blocking the Mother’s access to their joint bank accounts post-separation was certainly egregious, it was already sanctioned through my aggravated damages award of $50,000: *Ahluwalia v. Ahluwalia*, 2022 ONSC 1303, para. 118. It would be unfair to consider it again here.

[20] The Mother also asks me to award costs on a substantial indemnity basis based on her previous offers to settle. Contrary to the Father’s submissions, I am prepared to consider the Mother’s four offers. I am directed to consider them under Rule 24(12)(a)(iii) insofar as they were written offers, and the deficiencies noted by the Father are largely technical in nature (i.e., labeling the offer as both an “offer” and a “draft order”) and excusable in light of the Mother being under-represented and/or self-represented.

[21] In substance, the Mother was more successful at trial than her offer made more than one month before trial on January 7, 2022. For example, I imputed the Father's income at a higher amount at trial and awarded the Mother a larger equalization payment. While I awarded the Mother significant damages at trial, she was prepared to withdraw her tort claim without costs in the 2022 offer.

[22] Both parties’ pre-2022 offers were not particularly helpful in determining the proper amount of costs to award. The pre-2022 offers are wholly incomparable to my trial orders because the issues changed dramatically between 2018 and 2022, most notably because of the Mother’s amended tort claim in 2021: see *Beaver*, at paras. 15-16. Moreover, the Mother’s 2019 and 2021 offers are confusing and include irrelevant information, which mitigates against giving them significant weight. In general, the Mother’s pre-2022 offers sought a large lump sum amount to settle all claims which makes comparing them to my orders at trial difficult.

[23] Overall, I am willing to award the Mother $20,000 in costs. This amount accounts for the Mother’s relative success at trial, her appropriate legal fees, her appropriate time spent, the parties’ conduct, the complexity of the issues, and the Mother’s offer made on January 7, 2022.

Order

[24] The Father shall pay the Mother a total of $20,000 in costs.

MANDHANE J. Released: April 07, 2022