Court File and Parties

COURT FILE NO.: FS-22-28437-000 DATE: 2023-04-17 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

RAVINDER SINGH PARMAR Applicant – and – PARMINDER KAUR FLORA Respondent

Counsel: Kristen Humphrey, for the Applicant Farrah Hudani & Jessica Luscombe, for the Respondent

HEARD: In writing

M.D. Faieta J.

Costs Endorsement

[1] The Applicant father’s Application under the Hague Convention on Civil Aspects of International Child Abduction for the return of his daughter to Florida was dismissed: See Parmar v Flora, 2022 ONSC 3079 (“the Decision”).

[2] In respect of that Application, the Respondent mother seeks her costs of $64,379.73 on a full indemnity basis. The Respondent also ask that the costs order be deemed to be enforceable as a “support order” under the Family Responsibility and Support Arrears Enforcement Act, 1996, SO 1996, c 31 (“FRSAEA”).

[3] The Applicant submits there should be no order as to costs given the Respondent’s allegedly unreasonable behavior in taking their daughter to Canada and from withholding their daughter from any contact with the Applicant after he commenced a divorce petition in Florida on December 10, 2021 and until he retained counsel in Ontario.

Analysis

[4] In a family law proceeding, the award of costs is informed by the following principles:

1. An award of costs is in the discretion of the court and should promote the following objectives: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants; (4) to ensure that cases are dealt with justly as required by Rules 2(2) and 2(4) of the Family Law Rules, O. Reg. 114/99: Mattina v. Mattina, 2018 ONCA 867, para. 10;

2. Under Rule 24(1) a successful party is presumed to be entitled to their costs of the proceeding subject to the following factors: (1) Rule 24(12) (proportionality and reasonableness of costs); (2) Rule 24(4) (unreasonable conduct of a successful party); (3) Rule 24(8) (bad faith); (4) Rule 18(14) (offers to settle): Mattina, para. 13.

3. Proportionality and reasonableness are the “touchstone considerations” to be applied in fixing the amount of costs: Beaver v. Hill, 2018 ONCA 840, para. 12.

4. In setting the amount of costs, Rule 24(12) requires a court to 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.

5. A successful party who has behaved unreasonably during a case may be denied their costs or ordered to pay an unsuccessful party’s costs: Rule 24(4)

6. In deciding whether a party has behaved reasonably a 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: Rule 24(5);

7. Unreasonable behavior “in relation to the issues” includes behavior that: (1) is disrespectful of other participants or the court; (2) unduly complicates the litigation, (3) increases the cost of litigation: Beaver v. Hill, 2018 ONSC 3352, para. 51, rev’d 2018 ONCA 840 (on other grounds);

8. Other relevant considerations include: a. A party’s ability to pay costs is a relevant consideration in assessing the amount of costs payable only for the purpose of justifying a reduction, not an increase, in the amount of costs awarded: Beaver, para. 18; b. The absence of an offer to settle cannot be used against a party in assessing costs unless it was realistic to expect an offer to settle to be made. Further, if an offer to settle that is not compliant with Rule 18 is made, it may be considered in assessing costs if it contains a “true element of compromise”: Beaver, para. 16; c. An award of costs may be adjusted to reflect the parties’ divided success: Rule 24(6); Beaver, para. 21.

9. Multiple counsel for a party on a motion and at trial is uncommon. The costs of more than one counsel for a party should not be recovered in costs unless the factual complexity of the motion or trial dictate a need for additional counsel: Whiteside v. Govindasamy, 2021 ONSC 2991, paras. 30-32.

10. Costs should only be awarded to a self-represented litigant who can prove that: (1) they devoted time and effort to do the work that ordinarily would be done by a lawyer; and, (2) they had to give up remunerative activity in order to perform such work: A.A. v. B.B., [2021] O.J. No. 1217 (C.A.), para. 46.

11. A successful party is presumptively entitled to its costs on a full recovery basis when that party obtains a result that is at least as favourable as its offer to settle: Rule 18(14); C.A.M v. D.M., [2003] O.J. No. 3707 (C.A.), para. 43.

12. 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: Rule 24(8). In Scalia v Scalia, 2015 ONCA 492, at para. 68, the Ontario Court of Appeal stated: The legal test for bad faith in the family law context, as set out in S. (C.) v. S. (M.) (2007), 38 R.F.L. (6th) 315 (Ont. S.C.J.), at para. 17, aff'd 2010 ONCA 196, 262 O.A.C. 225 (Ont. C.A.), is that the impugned behaviour must be shown to be carried out with "intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court." In short, the essential components are intention to inflict harm or deceive.

13. One example of bad faith conduct is when a parent engages in a campaign to alienate a child from the other parent in order to inflict emotional harm on that parent: S. (C.), para. 21.

14. In a family law proceeding, a judge is not constrained by the scales of costs found in the Rules of Civil Procedure: Beaver, para. 12. The appropriate approach is for a court to apply the factors in Rule 24 of the Family Law Rules and fix the amount of costs at some figure between a nominal sum and full recovery without any assumptions about categories of costs: Beaver, para. 52.

15. Further, the view that “the preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably, and the costs claimed are proportional to the issues and the result” expressed in Forrester v Dennis, 2016 ONCA 214, at para. 22, was clarified by the Ontario Court of Appeal in Mattina, para. 15 where the court stated that “the Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14)”. Also see Beaver, paras. 10 and 13, and Fearon v Fearon, 2021 ONSC 2305, paras. 37-42. There is no provision in the Family Law Rules that provides for a general approach of "close to full recovery" costs: Shinder v. Shinder, 2022 ONSC 1121, para. 12.

[5] A court has the authority to designate that a costs order is a “support order” under section 1(1)(g) of the FRSAEA, and thus, enforceable by the Director of the Family Responsibility Office under s. 5(1) of the FRSAEA, when the costs arise “in relation to support or maintenance”. A costs award in a family law proceeding cannot be characterized as being “in relation to” a support order when support is neither claimed nor adjudicated upon in that proceeding: Clark v. Clark, 2014 ONCA 175, paras. 73-74. However, if a support claim is a principal issue in a multi-issue family law proceeding, the allocation of costs as between support and non-support issues may be both impractical and inappropriate. In such circumstances, a court has the discretion to designate the entire amount of the costs of the proceeding as support for the purpose of FRO enforcement: Clark, para. 81.

Success

[6] The Application was dismissed and thus the Respondent was the successful party.

Offer to Settle

[7] Both parties made offers to settle.

[8] The Applicant offered to settle the Application on the basis that the Respondent return their daughter to Florida.

[9] The Respondent offered to settle the Application on the basis that: 1) the Application be withdrawn; 2) he withdraw his “Florida application” which is his Petition for Divorce filed on December 10, 2021 in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County that is Hague Application in Florida, that amongst other things seeks an order for the return of their daughter to Florida; 3) he attorn to the jurisdiction of Ontario to arrange a parenting schedule and contact order in accordance with Ontario laws; 4) neither party remove their daughter from Ontario without a court order or written agreement; 5) the Respondent hold their daughter’s passports.

[10] Despite the Respondent’s assertion that the Final Order was more favourable than her offer, it is clear that it was not. It sought relief which was not granted on this Application. The Decision simply dismissed the Application.

[11] Both parties attended mediation over two days in March and April, 2022. They both made an effort to try to resolve this matter.

Reasonableness of Each Party’s Behaviour

[12] The Applicant submits that the Respondent acted unreasonably as follows: (a) The Respondent misled the Applicant into thinking that she was only taking their daughter on a trip back to Toronto in July 2021; (b) The Respondent’s behaviour of withholding their daughter from any contact with the Applicant after he commenced a divorce petition in Florida on December 10, 2021 and until he retained counsel in Ontario.

[13] In her reply submissions, the Respondent does not reply to the first allegation of unreasonable behaviour. Given the evidence described in the Decision, including the finding that the date of wrongful retention was December 10, 2021, and the lack of any response to this assertion, I accept the Applicant’s assertion that the Respondent misled him into thinking that he was only taking their daughter on a trip back to Toronto in July 2021. Such behaviour was disrespectful of the Applicant and unreasonable. However, such behaviour occurred prior to the commencement of this litigation and has no connection to issues.

[14] In respect of the second allegation of unreasonable behaviour, the Respondent states that she “agreed to all in-person parenting time that the Father has requested in Ontario”. The Respondent further states that the first such in-person parenting occurred on April 23, 2022. The Respondent also states that she facilitates video calls between the Applicant and their daughter on Tuesdays and Thursdays for 15 minutes and every other day for 30 minutes.

[15] Other than her submission that he should face full indemnity costs consequences for failing to accept her offer to settle, the Respondent made no allegations of unreasonable behaviour by the Applicant.

Bad Faith Conduct

[16] Neither party alleges bad faith conduct.

Full Indemnity Costs

[17] The Respondent’s claim for full indemnity costs is dismissed as she has not established any basis for such award under the Family Law Rules.

Reasonableness and Proportionality of Costs

[18] This Application involved one issue, namely, what was the habitual residence of their daughter at the time that she was allegedly wrongfully removed from the United States. The outcome of the Application was obviously of great importance to the parties however the issue was not complex.

[19] The Respondent’s bill of costs is $60,002.49 in fees and $4,377.29 in disbursements. The Applicant states that the Respondent’s bill of costs is unreasonable as it is more than twice the amount of his bill of costs ($26,105.83 with no disbursements charged) despite having produced greater materials (11 supporting affidavits) than the Respondent. The Applicant did not respond to this assertion. I accept the Applicant’s position.

[20] The Applicant further states that there was no need for two “senior-like” lawyers to be arguing this matter. Ms. Hudani was called to the Bar in Ontario and billed at a rate of $545 per hour with about 50 hours billed. Ms. Luscombe is a 2014 Call and was billed at a rate of $300 per hour until April 1, 2022 when rate increased to $350 per hour. She billed about 77 hours. The time charged on their bill of costs amounts to 127 hours. The Applicant’s bill of costs shows that a total of about 95 hours was charged. Ms. Humphrey’s rate is $250 per hour (2019 Call) and Mr. Gill’s rate is $175 per hour (2021 Call) however he only billed about 7 hours.

[21] I find that the time billed by the Respondent’s counsel was excessive in the circumstances and this likely resulted from two counsel significantly involved in the preparation for the hearing of this Application. The complexity of this Application did not require two counsel.

[22] On the other hand, the Applicant retained relatively junior lawyer who billed at an hourly rate significantly less than the Respondent’s lawyers. However, this does not necessarily make the Respondent’s choice of more senior and expensive counsel unreasonable as a litigant is entitled to retain counsel of their choice.

Other Matters

[23] The relief sought in the Application was for the return of the child to Florida. It did not raise support issues nor were such issues engaged at the hearing of this Application. Applying the legal principles described above, I find that the Respondent’s costs in relation to this Application were not in relation to support or maintenance and thus I dismiss the Respondent’s motion for an order declaring that such costs are enforceable by the Director under the FRSAEA.

Conclusions

[24] Having regard to the factors described above, the objectives of a costs award in a family law proceeding and the touchstone considerations of reasonableness and proportionality, I find that it is just to order that the Applicant pay costs of $35,000.00, inclusive of disbursements and taxes, to the Respondent within 30 days.

Mr. Justice M.D. Faieta

Released: April 17, 2023