Court File and Parties

COURT FILE NO.: FS-22-00030079-0000 DATE: 20220901 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Saurabh Malpani, Applicant AND: Divya Malpani, Respondent

BEFORE: Justice Mohan D. Sharma

COUNSEL: Kenneth Younie, Counsel for the Applicant (kenneth@vanderschootfamilylaw.com) Rajni Tekriwal, Counsel for the Respondent (law@tekriwals.com)

HEARD: In Writing

ENDORSEMENT

[1] On July 13, 2022, I released a decision from the applicant father’s urgent motion seeking, among other things, an Order that a court in Ontario has jurisdiction to make orders with respect to the parties’ child of the marriage, Miraya Malpani (the “child”), born August 29, 2016, and for the apprehension and return of the child to the applicant’s care in Ontario, forthwith. This proceeding was initiated because the respondent mother did not return to Ontario with the child after a scheduled visit to India from January 27, 2022, to April 11, 2022.

[2] In my decision, I found that this court does have jurisdiction to make orders with respect to the child, and I ordered that the child be returned to Ontario. I made other ancillary orders, including an order that Canadian law enforcement officials take the necessary steps to execute my Order in Canada, and interim parenting orders upon the child’s return to Ontario with or without the respondent. I invited cost submissions in writing, which have been received.

[3] The applicant seeks full recovery of his costs. He attached a bill of costs totalling $17,613.88. He argues that the respondent did not achieve any success on the urgent motion, and that several adverse findings were made against the respondent. He argues the respondent’s litigation behaviour has been unreasonable. Neither party made an offer to settle. The respondent incurred similar costs of $17,543.25.

[4] The respondent argues she acted fairly and only to safeguard the best interests of the child. She argues that she was successful in securing parenting orders, and a preservation order of joint funds.

[5] Section 131 of the Courts of Justice Act provides that subject to the provisions of an Act or Rules of Court, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid. This section must be read in conjunction with Rules 24 and 18 of the Family Law Rules, which set out numerous principles to guide the court in the exercise of its discretion in the family law context

[6] The modern rules respecting costs aim to foster the following four fundamental purposes: (a) to partially indemnity successful litigants for the cost of litigation; (b) to encourage settlement; (c) to discourage and sanction inappropriate behaviour by litigants; and (d) to ensure that cases are dealt with justly in accordance with the primary objective of the Family Law Rules set out in Rule 2(2). See: Ryan v. McGregor (1926), 1925 CanLII 460 (ON CA), 58 O.L.R. 213 (Ont. C.A.), at p. 216; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (S.C.C.); Fong v. Chan, 1999 CanLII 2052 (ON CA), 1999 CarswellOnt 3955, 181 D.L.R. (4th) 614, 46 O.R. (3d) 330 (C.A.); Serra v. Serra, 2009 ONCA 395 (C.A.) and Mattina v. Mattina, 2018 ONCA 867 (C.A.)).

[7] I am not persuaded that the respondent achieved any success in this case, or that her conduct has been reasonable. She has unilaterally retained the child in India, and the evidence disclosed that she communicated to the applicant her decision to keep the child in India while the applicant was boarding a plane from India to return to Toronto, Ontario. This unilateral and calculated action on the part of a parent cannot be sanctioned or condoned, lest it invite other parents to engage in similar unilateral steps. When a parent absconds from Ontario with a child and fails to return to have the parties’ dispute resolved through judicial or alternative dispute resolution processes, a cost order that sanctions such inappropriate behaviour is warranted. This is a motion that should not have been necessary.

[8] While I made interim parenting orders and preservation orders, those orders were necessary and intended to establish an interim status quo while the issues in this case were finally determined at trial or through settlement efforts. My orders were intended to bring about a period of peace between the parties, and to ensure the best interests of the child were met in the interim. I cannot conclude they were rulings made in favour of the respondent. They were necessary orders made as a result of the unilateral conduct of the respondent.

[9] For these reasons, I see no reason not to grant the applicant near full indemnity of his legal costs, which I find were reasonably incurred, given the similar amount of costs the respondent incurred on this motion. I order the respondent to pay the applicant costs, fixed in the amount of $17,000, payable within 30 days.

Justice Mohan D. Sharma

Date: September 1, 2022