Court File and Parties
COURT FILE NO.: FS-20-99206-00
DATE: 2023 02 01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Thabotharan Hamshaayini, Applicant
AND:
Subramaniam Thabotharan, Respondent
BEFORE: McGee J.
COUNSEL: S. Duraiappah, for the Applicant
M. Mikhailitchenko, E. Berlin, M. Hou, S. Sinivasan, Agents for the Respondent
HEARD: January 31, 2023
COSTS ENDORSEMENT ON EXPARTE MOTION
MCGEE J.
Overview
[1] On June 2, 2022 Justice Barnes heard in chambers the applicant, Ms. Thabotharan’s ex-parte motion dated May 31, 2022. He granted her a Certificate of Pending Litigation on five properties and required the respondent, Mr. Subramaniam to disclose the addresses of the proposed added respondents.
[2] If Mr. Subramanian failed to disclose the addresses, and it became necessary for Ms. Thabotharan to search for their addresses, Justice Barnes also ordered that Mr. Subramaniam would be required to pay the costs of those searches.
[3] Justice Barnes gave further directions on the conduct of the litigation. At paragraph 11 of his June 2, 2022 Order he provided that costs of the urgent motion were to be determined by the Justice hearing the balance of the motion.
[4] The balance of the motion came before me on November 21, 2022. The added respondents were present, and Mr. Subramanian consented to an Order that the Certificates remain on title until the claims were determined.
[5] Upon hearing initial submissions on November 21, 2022, and on consent, I converted the balance of the motion to a conference. After canvassing the issues in dispute, I organized the next steps in the proceeding. On the applicant’s urging, I permitted costs submissions on her ex-parte motion to be provided to me on a timetable: applicant by December 20, 2022 and respondent by January 22, 2022.
[6] For the reasons set out below, I decline to grant the Applicant costs on her ex-parte motion dated May 31, 2022.
Reasons for No Costs Award
[7] Rule 14(4) of the Family Law Rules states that no motion may be brought before a case conference is held on the substantive issues. Rule 14(4.2) is the exception to that rule. Subrule (4) does not apply if the court is of the opinion that there is a situation of urgency or hardship, or that the interests of justice do not require a case conference.
[8] Ex-parte Orders preserving property are unusual. There must be compelling evidence that providing notice of the motion or proceeding first to a case conference would risk the preservation of the disputed property.
[9] Ms. Thabotharan argues that she should receive a full recovery of her costs on this motion because she was successful, or more successful on her motion.
[10] But that is not the case. She was only successful in registering five of the requested Certificates of Pending Litigation. She was not successful on the balance of relief sought: to set aside a list of property conveyances that she claims were fraudulent, that she be given exclusive possession of the matrimonial home, or that her former spouse continue to pay the carrying costs for that home.
[11] The request to set aside the conveyances was not available without notice and was not urgent. No transactions were pending. Nor was the request for an Order that Mr. Subramaniam pay the carrying costs of the home available on a motion without notice before a case conference. The expenses of the home were in good standing and at the time, Mr. Subramaniam was not aware that Ms. Thabotharan considered the marriage over on a final basis.
[12] In her costs submissions, Ms. Thabotharan does not identify the amount of costs sought, or the scale of costs requested. As a result I have considered her requests for costs on a full recovery basis, which is a difficult starting point. A full recovery of costs is generally unavailable absent an Offer to Settle with as favourable, or more favourable terms (see Rule 18(14) of the Family Law Rules) or a judicial finding of bad faith.
[13] Neither party has served an Offer to Settle any of the terms in this ex-parte Motion, either before its June 2, 2022 hearing in chambers, or prior to its return on November 21, 2022. No finding of bad faith has been made.
[14] Ms. Thabotharan’s Bill of Costs shows a total amount of $10,689.48 in costs; being $5,400.00 in fees, HST thereon of $702 and disbursements of $4,587.48. The cost of disbursements includes the costs of title searches for 9 properties ($1,017) the registering of Certificates of Pending Litigation ($1,186.50) and Ministry of Transportation searches for the added respondents ($1,084.80.)
[15] The subject properties on this motion were five in number and Ms. Thabatharan does not indicate in her submissions that Mr. Thabotharan refused to provide the addresses of the added respondents.
[16] The Respondent, Mr. Sabramaniam asks that no costs be paid. He first argues that the amount sought is exaggerated and unjustified. That position is challenging because he incurred even greater costs after service of the ex-parte Order to answer the motion and claim: $12,571.25.
[17] His second objection to an award of costs is compelling. He deposes that Ms. Thabotharan gave no notice of her claims and never requested that he voluntarily preserve the properties in advance of the motion. When the matter returned to court, he agreed to the Certificates remaining on title and the matter proceeding as a case conference.
[18] The four fundamental purposes of an award of costs are well and often cited: (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 under subrule 2 (2) of the Family Law Rules). See: Mattina v. Mattina, 2018 ONCA 867.
[19] No purpose is achieved by indemnifying a moving party who has acted precipitously, or by making an award of costs against a party who has acted reasonably and taken a legitimate position.
[20] In the ordinary course, a party asking the Court to preserve property without notice to its titled owner will have first attempted to obtain assurances on a voluntary basis and been refused, and/or recently learned that the disposition of the property is imminent.
[21] In this manner, a court can be satisfied that absent immediate intervention, there is a material likelihood that the owner will dispose of the property.
[22] When a party moves without notice, it is unknown what position the other party would have taken unless they were first given an opportunity to consent to the relief sought. For that reason, costs are generally not ordered against a non-participating party on an ex-parte motion brought before a case conference. Instead, it is the moving party who is often most at risk of an award of costs should the motion prove not to be urgent or unfounded.
[23] Ms. Thabotharan’ costs submissions set out no reasons why she needed to move without notice and I now have the benefit of Mr. Subramaniam’s responding materials to the Motion and his Answer.
[24] I find that the urgency to preserve property was overstated in Ms. Thabotharan’s May 31, 2022 motion materials that were before Justice Barnes. There was no imminent disposition of the property(ies) and upon learning of the CPL, Mr. Subramanian did not dispute its placement.
[25] The fact that Mr. Subramaniam consented to the CPLs remaining on title at the November 21, 2022 return of the motion does not confirm the success of Ms. Thabotharan’s motion. To the contrary, it demonstrates reasonable litigation behaviour on the part of Mr. Sabramaniam, which was in turn, the foundation for converting the attendance to a comprehensive case conference.
[26] I am not prepared to find that Ms. Thabotharan was successful on the May 31, 2022 ex-parte motion and its return, as contemplated in Rule 24(1) of the Family Law Rules.
[27] I award no costs on this ex-parte motion or its return on November 21, 2022.
McGee J.
Date: February 1, 2023
COURT FILE NO.: FS-20-99206-00
DATE: 2023 02 01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Thabotharan Hamshaayini
- and -
Subramaniam Thabotharan
COSTS ENDORSEMENT ON EXPARTE MOTION
McGee J.
Released: February 1, 2023