Sonia v. Ratan, 2023 ONSC 982

COURT FILE NO.: FS-20-14738

DATE: 2023-02-27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FARZANA RATAN SONIA Applicant/Responding Party

– and –

ABDUL HANNAN RATAN Respondent/Moving Party

COUNSEL: Obaidul Hoque, for the Applicant/Responding Party Syed Kabir, for the Respondent/Moving Party

HEARD: In writing and on February 10, 2023, by videoconference

COSTS ENDORSEMENT

P.J. Monahan J.

Introduction

1On December 2, 2022, I found that the parties had been validly divorced in Bangladesh on March 2017 (the “Divorce”), and that the Divorce should be recognized as valid under Canadian law, including for purposes of the Divorce Act¹ and the Family Law Act².³ This finding had two significant consequences for the Applicant’s spousal support and property claims she commenced in Ontario on January 7, 2020 against the Respondent.

2The first consequence was that I dismissed the Applicant’s claim for spousal support, since a spouse who has previously been divorced in a foreign jurisdiction cannot bring a claim for spousal support under either the Divorce Act or the Family Law Act. The second consequence was that, although the Applicant did have a claim for equalization of net family property under the Family Law Act for a period of two years after the Divorce became effective (namely, until March 17, 2019), she had not pleaded or sought an extension in the limitation period, nor would any such extension have been justified since the delay in seeking the extension was not incurred in good faith. Accordingly, I ruled that her claim for equalization of net family property is barred by s. 7(3)(a) of the Family Law Act.

3This endorsement deals with the cost consequences of the above findings. I also resolve a dispute over the terms of the orders that should issue in respect of certain of my previous endorsements in this matter.

Background

4The facts in this proceeding are detailed and complicated, as reflected in the length and detail of the December 2022 Endorsement,⁴ as well as by the volume of evidence and documentary material filed by the parties.⁵ It is not necessary or appropriate to attempt to summarize all this material in this costs endorsement which will, instead, merely focus on those matters which are most relevant to the costs issues I must now decide.

5The parties were married in Bangladesh on September 6, 1998. There are three children of the marriage: a son, SMR (born August 1, 1999, who is now 23 years old), and two daughters, FRA (born November 30, 2001, who is now 22 years old) and FRF (born January 5, 2005, who is now 18 years old). The parties lived in Bangladesh throughout their marriage, until the Respondent and the parties’ three children obtained landed immigrant status in Canada in 2015, and the Applicant joined them in February 2017.

6On January 7, 2020, the Applicant filed an application in this court seeking a divorce and corollary relief from the Respondent under the Divorce Act and the Family Law Act (the “Application”). In his Answer filed in early February 2020, the Respondent disputed the Applicant’s claims on various grounds, including that the parties had already been divorced in Bangladesh in March 2017. The Respondent maintained that on November 17, 2016, while the parties were in Bangladesh, he delivered a written notice to the Applicant informing her of his intention to divorce her (the “Divorce Notice”), and that the Divorce became effective on March 17, 2017, in accordance with the relevant provisions of Bangladeshi law.

7In her February 22, 2020 Reply, the Applicant argued, inter alia, that the Respondent’s claim that they had been divorced in Bangladesh was a fabrication and, in any event, that he had failed to follow the proper divorce procedure required under Bangladeshi law. The Applicant said that the first time she found out about the Divorce was when she received fake and fraudulent divorce documents from the Respondent on January 28, 2020. The Applicant maintained that, prior to that date, she had never received the Divorce Notice from the Respondent, nor had the parties ever been divorced.

8Given these diametrically opposed positions of the parties, along with the seriousness of the allegations of fraud, it was obvious that my findings would turn primarily on an assessment of the parties’ respective credibility.

9For the detailed reasons set out in my December 2022 Endorsement, I found that the Applicant’s evidence was not credible and, accordingly, no weight should be attached to it. In essence, I found that over the course of the litigation the Applicant had been unable to keep her story straight. For instance, the Applicant provided contradictory accounts of how and when she had come to know of the alleged fraud perpetrated by the Respondent. She further claimed that it was impossible for the Respondent to have delivered the Divorce Notice to her at the Dhaka airport on November 17, 2016, since the parties had been in India at that time, only to later admit that that she and the Respondent had in fact been at the airport together that evening waiting to travel to India. The Applicant claimed for close to three years that the parties had separated in December 2018, only to change her position in October 2022 and claim for the first time that the separation had actually taken place in late December 2019. What this overlooked was the fact that her new, revised separation date was about a week later in time than the day on which she had signed the Application, in which she had claimed to have already been separated from the Respondent. The Applicant repeatedly alleged that all the documents submitted by the Respondent relating to the Divorce were “fakes”, “forgeries” or “frauds”, and that the Respondent had bribed various public officials to further his fraudulent scheme, without any credible evidence in support.

10The most compelling evidence contradicting the Applicant’s claims of fraud was that of the parties’ two older children, SMR and FRA (together, the “Eldest Children”), who testified that the Applicant had confirmed to them that she had received the Divorce Notice in November 2016. Moreover, the Eldest Children both testified that it was well understood within the family, including by the Applicant, that the parents had been divorced in 2017, even though they were all residing in the same apartment. In fact, in March 2020, shortly after commencing this litigation, the Applicant admitted to the Eldest Children that she knew her allegations against the Respondent in this litigation were false but had filed the Application because her lawyer advised her to do so.

11Although the Applicant claimed that the Eldest Children were lying because of pressure from the Respondent, her counsel chose not to cross-examine SMR at all, while the cross-examination of FRA only served to bolster her credibility. FRA expressed bewilderment and dismay over the fact that her mother was continuing with litigation that she had known from the outset had no merit. When FRA first learned of this litigation in early 2020, she was so distressed that her high school grades suffered, and she almost failed to gain admission to university. I found the Eldest Children’s evidence to be essentially uncontradicted and wholly credible, and I accepted their evidence in its entirety.

12Turning to the issue of the Respondent’s credibility, I found the Respondent’s evidence regarding the Divorce to be internally consistent and, apart from bare denials or allegations by the Applicant, largely uncontradicted. This includes the Respondent’s evidence regarding how he went about obtaining the Divorce Notice from the office of the local nikah⁶ registrar (the “Registrar”) on November 17, 2016, and the fact that he hand-delivered a copy of the Divorce Notice to the Applicant when they were both at the Dhaka airport that evening waiting for a flight. The Respondent’s evidence regarding these facts and circumstances is corroborated by the viva voce evidence of the Eldest Children, both of whom testified that they spoke with their parents on the telephone on the evening of November 17, 2016 and were told by the Applicant that she had received a copy of the Divorce Notice that very evening. During that telephone call, the parties also assured the children that, although they were getting divorced, they would both do their utmost to ensure it did not disrupt the lives of their children.

13The Respondent’s evidence regarding the Divorce was also corroborated by a detailed affidavit that was provided by the Registrar. Although the Applicant claimed that the Registrar was an active participant in the Respondent’s fraudulent scheme, no credible evidence in support of these allegations was ever provided. In fact, I found that a document tendered by the Applicant, purporting to be a certificate from the Registrar stating that the Divorce Notice was a forgery, was itself fraudulent.

14The only significant credibility concern with respect to the Respondent related to his evidence regarding his Canadian tax returns. The Respondent claimed that he was unaware of the fact that, on his Canadian tax returns for the years 2017, 2018 and 2019, he originally identified himself as married. I rejected the Respondent’s evidence on this issue and found that he must have been aware that he declared himself to be married on those tax returns.

15Despite this concern, I found that it did not call into question the Respondent’s extensive and largely uncontradicted evidence regarding the Divorce itself. On balance, I found his evidence on issues relating to the Divorce to be credible and accepted his evidence that he divorced the Applicant in Bangladesh in 2017 as he claimed. Moreover, because the Applicant admitted to the Eldest Children in March 2020 that she knew the claims she was advancing were without merit, and also admitted that she had manufactured false documents to support her unfounded claims, I found that the Applicant commenced this proceeding in bad faith.

16I went on to conclude that the Divorce satisfies the common law test for the recognition of foreign divorces, as most recently affirmed by the Court of Appeal in Novikova v. Lyzo.⁷ It is therefore recognized and presumed to be valid for purposes of Canadian law, in accordance with s. 22(3) of the Divorce Act.

17None of the grounds upon which a Canadian court may refuse to recognize a foreign divorce apply in this case. There was no breach of natural justice in obtaining the Divorce, since the Respondent delivered a copy of the Divorce Notice to the Applicant on November 17, 2016, as well as to the mayor of the local municipality. Public policy considerations also favour the recognition of the Divorce in Canada. Canadian public policy requires, at a bare minimum, that a party not advance legal claims which the party knows to be untrue or without merit. Because the Applicant has acted in a manner contrary to this minimum required standard of conduct, she cannot now invoke principles of Canadian public policy to deny recognition of the Divorce.

Positions of the Parties

18The Respondent argues that he is presumptively entitled to his costs since he is the successful party in the proceeding and has behaved reasonably throughout. Moreover, since I found in my December 2022 Endorsement that the Applicant commenced this proceeding in bad faith, the Respondent argues that he is entitled to his costs on a full recovery basis, pursuant to r. 24(8) of the Family Law Rules⁸. The Respondent equates full recovery to 85 percent of the actual fees and disbursements incurred since his current counsel was retained in August 2020.

19The Respondent further argues that the Applicant’s baseless fraud allegations have been published in newspapers and other electronic media in Bangladesh, causing damage to his reputation, mental and emotional distress, and financial losses. The stain on the Respondent’s reputation created by the Applicant’s meritless litigation will be difficult to remove. In his submission, this is a further ground justifying an award of costs on a full recovery basis.

20The Respondent’s costs outline indicates that 2 counsel spent a total of approximately 900 hours on this matter, while 2 law clerks spent an additional 310 hours, resulting in total actual costs (inclusive of disbursements and HST) of approximately $347,000. He seeks a costs order of $298,292.34, which is equal to 85 percent of his total costs incurred.

21The Respondent made an offer to settle on November 15, 2022. That offer proposed that the Applicant pay the Respondent table child support for the three children of the marriage, (who have resided and continue to reside with the Respondent), based on an annual income of $30,000. The Respondent’s offer proposed that all other claims in the litigation would be dismissed.

22The Applicant argues that although she was unsuccessful, no costs should be awarded in this matter. She maintains that she had a legitimate ground for bringing her application, and she pursued relief which she considered to be legally available to her.

23The Applicant further maintains that the quantum of costs and the time spent by Respondent’s counsel is excessive. The Applicant submitted her own bill of costs, which discloses that 3 lawyers in 2 separate law firms spent a total of 928 hours on this proceeding, while 2 law clerks spent an additional 308 hours. The Applicant’s total costs, inclusive of disbursements and HST, were approximately $562,000. She calculates that if she had been awarded costs on a “substantial indemnity” basis, she would have been entitled to an award of $475,000, while her partial indemnity costs would have been approximately $377,000.

24The Applicant did not make any offers to settle.

Legal Framework Governing Costs Awards in Family Law Litigation

a. General Principles

25It is well established that modern family cost rules are designed to foster four fundamental purposes: (i) to partially indemnify successful litigants; (ii) to encourage settlement; (iii) to discourage and sanction inappropriate behaviour by litigants; and (iv) to ensure that cases are dealt with justly.⁹

26Rule 24 of the Family Law Rules creates a presumption of costs in favour of the successful party, while in cases where success is divided the court may apportion costs as appropriate.¹⁰ Although consideration of relative success is the starting point in determining costs, this presumption does not automatically require that the successful party be awarded his or her costs.¹¹

27Fixing of costs is not merely a mechanical exercise involving a review of the receiving party’s cost outline. The overarching principles governing awards of costs in family law proceedings are proportionality and reasonableness.¹² As Nordheimer J.A. stated in Beaver v. Hill “[p]roportionality is a core principle that not only governs the conduct of proceedings generally but is specifically applicable to fixing costs in family law matters”.¹³ This conclusion flows directly from the fundamental Boucher principle, applied by Ontario courts on innumerable occasions, that costs awards should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”.¹⁴

b. Where a Party Has Acted in Bad Faith, Costs Shall be Awarded on a Full Recovery Basis

28Rule 24(8) requires that if a party has acted in bad faith, the court shall award costs on a full recovery basis. Although “bad faith” is not defined, it is well established that it requires a high threshold of egregious behaviour and, as such, a finding of bad faith is rarely made.¹⁵

29The leading case on the definition of “bad faith” continues to be S.(C.) v. S.(M.), where Perkins J. defined bad faith as including the knowing concealment of relevant information, or an attempt to knowingly deceive the other party or the court.¹⁶ As such, bad faith is not synonymous with bad judgement or unreasonableness but, rather, requires conscious wrongdoing motivated by a dishonest purpose. As Pazaratz J. noted in Jackson v. Mayerle, “[b]ad faith involves intentional duplicity, obstruction or obfuscation… The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose.”¹⁷ The Court of Appeal confirmed that a finding of bad faith within the meaning of r. 24(8) requires evidence of significant wrongdoing, dishonest purpose, or moral iniquity.¹⁸ Knowingly bringing an action that is without merit for an ulterior motive can, inter alia, lead to a finding of bad faith, especially if a party intended to deceive the court in the process and provided fraudulent documentation to the court to do so.¹⁹

30The Family Law Rules do not define “full recovery” either. However, it is generally accepted that “full recovery” of costs does not necessarily equate to the amount legal counsel has billed the successful client. The quantum of costs must always meet the test of proportionality and reasonableness, considering the importance and complexity of the issues at stake in the litigation.²⁰ The kind of conduct that will justify elevated costs is not limited to conduct in the proceedings and can include the circumstances that gave rise to the litigation.²¹ But full indemnity costs should only be granted in cases involving especially egregious conduct,²² such as intentionally making allegations of fraud or otherwise lying to the court.²³

c. Elevated Costs May be Ordered Against a Party Who Has Made Baseless Allegations of Fraud That, at the Time They Were Made, Had No Reasonable Prospect of Being Proven

31It is well established that allegations of fraud should not be made lightly. The mere making of such allegations in a public court proceeding can cause significant damage to a person’s reputation that may be impossible to fully repair, even if the court subsequently finds the allegations to have been baseless or without merit. For this reason, courts have repeatedly instructed litigants that “allegations of fraud and dishonesty are simply not to be made unless there is every reasonable likelihood that they can be proved”.²⁴ If a party ignores this caution and advances allegations of fraud or dishonesty which lack a proper evidentiary foundation and have no reasonable prospect of being established, that party is subject to cost sanctions.²⁵

d. Considerations Governing Quantum of Costs Awarded

32In fixing the amount of costs, r. 24(12) directs the court to consider the reasonableness and proportionality of a number of factors in light of the importance and complexity of the issues in the case. The factors to consider include each party’s behaviour, the time spent by each party, and any legal fees, including the number of lawyers and their rates. In submitting bills of costs, there is no absolute requirement for an itemized “by date and task” format. There is also no requirement to provide dockets along with the bill of costs either unless alleging excess by the other party.²⁶ What is necessary is that the party seeking costs provide sufficient information to enable the court to properly assess whether the time spent and the tasks performed were reasonable and proportionate given the importance and complexity of the issues in the case.²⁷

33Where the unsuccessful party challenges the reasonableness and proportionality of the costs claimed, it is helpful if that party has filed their own bill of costs. This is because one measure of a fair and reasonable amount that the unsuccessful party should pay in costs is what that party has paid their own lawyer.²⁸ At the same time, there is no necessity for the losing party to file their own bill of costs, and the failure to do so is merely one factor to be considered in assessing the reasonable expectations of the losing party.²⁹

Analysis: Entitlement to Costs

34There can be no doubt that the Respondent is entitled to his costs in this proceeding. He is obviously the successful party, given that I accepted his assertion that the parties had been divorced in 2017, and I dismissed the Applicant’s claims for spousal support and equalization of net family property. I also agree that the Respondent has behaved reasonably throughout the litigation. In particular, both the Respondent and his counsel have displayed a remarkable deal of restraint and patience in responding in a measured and responsible manner to the numerous allegations of fraud that have been levelled against both of them, and which were in the public domain for almost three years while they waited for a judicial determination of their merits.

35In considering the appropriate scale of costs, I note that I have already found that the Applicant commenced and has conducted this entire litigation in bad faith. Although the Applicant was well aware that she and the Respondent had been divorced in Bangladesh in 2017, she commenced this Application in January 2020 on the false premise that she knew nothing about any such divorce and that she and the Respondent continued to be married. The fact that the Applicant was well aware of the falsehood upon which this entire litigation has been constructed is confirmed by her admission to that effect made to her Eldest Children in March 2020.

36But the Applicant did not stop there. She prepared a fraudulent certificate, purporting to have been signed by the Registrar, stating that all of the Divorce documents produced by the Respondent were frauds. Moreover, as the Respondent marshaled rebuttal evidence showing that the parties had in fact been divorced in 2017, the Applicant was forced to expand her allegations of fraud to include any third parties who provided evidence in support of the Respondent’s position. Thus, by November 2022, the Applicant was claiming that the Respondent was engaged in an ongoing fraudulent conspiracy involving a dozen individuals, including the Registrar, the Special Superintendent of Police Immigration at the Dhaka airport, the General Manager of the Better Life Hospital in Dhaka, and various police officers in Dhaka who had investigated the Applicant’s allegations of fraud and found them to be without merit. None of these alleged participants in the Respondent’s ongoing conspiracy had any significant prior connection to the Respondent, or to each other. Nor did any of them have any obvious reason to want to cheat the Applicant out of her lawful entitlements in a family law proceeding in Ontario. Yet the Applicant maintained that it was plausible to believe that the Respondent was capable of single-handedly orchestrating such a complicated conspiracy because he is “politically influential”, “cunning” and “can prepare any type of fraudulent documents from Bangladesh and submit in the Court where it is really difficult to prove the genuineness of such documents”.³⁰

37That said, given the seriousness of the allegations and the number of persons implicated, the Applicant surely had an obligation to ensure that she had some plausible or credible evidence supporting the existence of the conspiracy. But, taken at its highest, the Applicant provided little more than conjecture and speculation in support of her claims.

38Consider the following as illustrations of the above.

i. The Applicant claimed that the Respondent bribed the Registrar to produce fraudulent documents regarding the Divorce. However, the only ‘evidence’ in support of this allegation was a single sentence in her November 28, 2020 affidavit that, “it came to my attention that [t]he Respondent met the Marriage Registrar and bribed him”. No explanation of how this matter “came to her attention” has ever been provided.

ii. The Applicant claimed that the Respondent was lying when he said he delivered a copy of the Divorce Notice to her on the evening of November 17, 2016 at the Dhaka airport, since her position was that they had taken a flight to India earlier that day. The Respondent attempted to rebut that claim by providing documents from by the Police Immigration Branch at the Dhaka airport showing that the parties had departed the airport together on an evening flight that day. The Applicant claimed that these documents were fraudulent, primarily on the basis that her lawyer had attempted to send an email to the police office at the airport and it had bounced back as “undeliverable”.

iii. The Applicant alleged that the Respondent bribed a number of police officers in Dhaka so that they would prepare a fake report concluding that the Applicant’s fraud claims were without merit. The basis for this allegation was that “the Applicant was advised from the credible source that Police has also been bribed and manipulated by the Respondent”. The Applicant never disclosed the identity of this “credible source”.

iv. Applicant’s counsel was directed to obtain medical records from the Better Life Hospital in Dhaka to determine whether they disclosed Towfique Ahmed’s marital status when he was checked into the hospital in April 2021.³¹ The records indicated that the Applicant had identified herself as Mr. Ahmed’s wife when she checked him into the hospital in April 2021. Even though these records were provided in response to an inquiry that had been made by her own counsel, the Applicant claimed that the documents were fraudulent and part of an orchestrated attempt by the Respondent to mislead the court. The primary basis for this claim was that it was “mysterious” that the email address used to send the documents to her counsel did not appear to be associated with the hospital. The Applicant therefore asserted that the documents did not actually come from the hospital and must, instead, have been fraudulently prepared at the direction of the Respondent.

v. The Respondent provided affidavits from six individuals who said they had personal knowledge of a May 2020 wedding between the Applicant and Mr. Ahmed, including from an imam who said he performed the wedding ceremony and from Mr. Ahmed’s sister-in-law. The Applicant claimed, without any evidence, that these affiants might not even exist and, even if they did exist, they were part of an ongoing scheme of fraud being perpetrated on the court by the Respondent.

vi. Significantly, the Applicant also claimed, again without evidence, that the Respondent’s counsel, Mr. Kabir, was aware of the fraudulent nature of these affidavits and was himself participating in the Respondent’s attempt to perpetrate a fraud upon the court.

vii. To properly address these allegations, I directed that the third-party affiants who claimed to have personal knowledge of the wedding between Mr. Ahmed and the Applicant attend for questioning before me via Zoom over three days in May 2022. Within days of receiving my direction, all the third-party affiants reported separately to counsel for the Respondent that they had been personally threatened to prevent them from testifying and were now fearful for their personal safety if they did so. Upon learning this, counsel for the Applicant claimed that the alleged fears on the part of the third-party affiants were being concocted by the Respondent and his counsel. He proposed that they should not be permitted to testify via Zoom, as I had earlier directed, since testifying in that manner would make it easier to misrepresent their evidence to the court. He proposed, instead, that the witnesses be ordered to attend at a court in Dhaka and testify before a retired judge, and that Applicant’s counsel be permitted to attend the questioning in person.

viii. I denied the Applicant’s request for the third-party witnesses to testify in person at a court in Dhaka for a variety of reasons, including that what was being proposed would be likely to further intimidate the witnesses and might cause them to refuse to testify at all. I also regarded it important that they testify before me, rather than before a retired judge with no knowledge of the history of the matter, so that I could properly manage the questioning and assess the credibility of the affiants. I directed certain arrangements be put in place to guard against the possibility of these witnesses perpetrating a fraud on the court and confirmed my earlier direction that they testify before me via Zoom. This questioning took place as directed on May 25-27, 2022, at which time it became obvious that the third parties were not involved in a conspiracy with the Respondent and were in fact attempting to tell the truth to the best of their ability.

ix. the Applicant claimed that the affidavits filed by the parties’ Eldest Children were false, on the basis that the Respondent was a “violent man”, and the children would suffer “unspeakable abuse” if the Eldest Children didn’t provide these false affidavits. However, no explanation was provided as to the nature of this “unspeakable abuse”, nor did Applicant’s counsel ask either of the Eldest Children about such abuse when they testified in November 2022. Moreover, in her testimony, FRA volunteered that she had never observed “any type of mental or physical violence. There were disagreements, yes, but that does not mean it was mental/physical violence. I have seen that myself. My dad has been cordial, respectful.”

39In some instances, the Respondent was able to offer rebuttal evidence that was sufficiently compelling that even the Applicant was forced to recognize that a particular allegation of fraud was no longer sustainable. However, in these cases the Applicant simply modified or tailored her position in such a way as to dismiss the significance of the rebuttal evidence, while still maintaining her overall claim of a fraudulent conspiracy directed by the Respondent.

40For example, through additional documents obtained by the Respondent from the Police Immigration Branch at the Dhaka airport, it became apparent that the Applicant and the Respondent had in fact departed on a flight in the evening of November 17, 2016, as the Respondent had claimed. The Applicant then acknowledged that she had been mistaken about the time of the flight and the Respondent had not been lying about that particular matter, but he was still lying about having delivered the Divorce Notice to her at the airport that evening.

41Similarly, it became apparent that the medical records from the Better Life Hospital (showing that the Applicant had identified herself as Mr. Ahmed’s wife when she checked him into the hospital in April 2021) were genuine. The Applicant acknowledged that she may well have so identified herself to the hospital staff, but she did so because otherwise the hospital might not have treated Mr. Ahmed for his COVID-19 symptoms.

42As discussed above, courts have consistently pointed out that fraud allegations can cause irreparable damage to a person’s reputation, even if the allegations are subsequently found to be without merit by a court. The Respondent claims that this is precisely what occurred in this case, as there was widespread reporting of the Applicant’s allegations against him in the media in Bangladesh.

43Significantly, the court was provided with copies of articles published in national newspapers in Bangladesh which described the Applicant’s claims not as mere allegations that had yet to be proven, but as facts that had already been established at true. For example, an article published in The Bangladesh Today on October 29, 2020 under the headline “Man cheats wife with fake divorce certificate”, stated that the Respondent “took the initiative to make a fake paper” showing that he was divorced from the Applicant. The article further stated that an “investigation revealed that the divorce decree … was illegally made” by the Respondent. It was also noted that the Applicant had filed a complaint against the Respondent with police in Dhaka. A police officer was quoted as saying: “[w]e have received a complaint. I am investigating the matter. I will be able to give details about this next month.”

44This incorrect description of mere allegations of fraud as proven facts was obviously damaging to the Respondent’s reputation in Bangladesh. Moreover, while it was true that at the time of the article’s publication in October 2020 the police were in fact investigating the complaint filed by the Applicant, the police report that was completed the very next month found the Applicant’s allegations to be without merit. There is no indication that there has ever been any correction or retraction of these inaccurate reports by the media.

45Significantly, these media reports were provided by the Applicant to suggest that since the media was reporting these allegations as already proven, this somehow corroborated or bolstered the credibility of her claims. This is troubling since it appears to reflect an utter disregard on the part of the Applicant for the significant damage that can result from irresponsibly advancing meritless claims of fraud in a court proceeding.

46Neither the Applicant nor her counsel seem to have any regard for the significant harm that can result from baseless claims of fraud against a lawyer such as Mr. Kabir. The Law Society’s Rules of Professional Conduct require that integrity be the fundamental quality of any person who seeks to practice law, and state that dishonorable conduct on the part of a lawyer will reflect adversely not only on that lawyer’s reputation, but on the integrity of the profession and the administration of justice more generally.³² Yet, the Applicant and her lawyer have accused Mr. Kabir of perpetrating a fraud on the court in aid of his client without evidence or proof of any kind. Moreover, despite my admonition that the allegations against Mr. Kabir are baseless and should never have been made, there has been no attempt on the part of the Applicant or her counsel to withdraw them.³³

47In her cost submissions, the Applicant claims that costs should not be awarded against her because she had a genuine belief in the merits of her allegations. Regardless of what the Applicant did or did not believe, mere subjective belief in the merits of an allegation of fraud is not a sufficient basis to plead such fraud in a court proceeding. Any such subjective belief must be supported by some objectively credible basis for the belief. This is precisely the point of the Court of Appeal’s recent direction in Brey that allegations of fraud must not be made unless there is a reasonable likelihood that they can be proved.

48For the reasons explained at length in my December 2022 Endorsement and summarized above, at the time these frauds were alleged, the Applicant did not provide any credible evidence in support of her allegations. Nor has any such credible evidence ever been produced by the Applicant over the close to three years that this proceeding has continued. To the contrary, it has only been through the diligence, persistence and tenacity of the Respondent and his counsel that these fraud allegations have been shown to be untrue.

49In sum, the Applicant (i) commenced this proceeding knowing that she and the Respondent were divorced and (ii) repeatedly advanced meritless allegations of fraud in an effort to prove her false claim. I find this to be egregious and irresponsible conduct that easily meets the high bar that must be satisfied for a court to direct that costs be paid on a full recovery basis, and I would so order.

Quantum of Costs Payable by the Applicant

50As discussed earlier, even where costs are awarded on a full recovery basis, it does not automatically follow that the successful party is entitled to recover all legal costs incurred in the proceeding. The overriding consideration remains what is proportionate and reasonable in the circumstances in light of the importance and complexity of the issues in the case.

51Given the time and money that these parties have devoted to this proceeding, it is obvious that the issue of whether the parties were divorced in Bangladesh in 2017 is important to both. The Applicant’s entitlement to spousal support, as well as her claim for equalization of net family property depends upon whether she and the Respondent were divorced before coming to Canada. The issue is also important to the Respondent, particularly since he has been accused throughout this proceeding of fraud and bribery.

52However, in my view, the legal issues in dispute were not particularly complex. The legal rules governing the validity and recognition of foreign divorces for purposes of Canadian law are relatively well settled. While the proceeding did require a consideration of the legal framework governing divorce in Bangladesh, the foreign law experts were largely in agreement on the relevant law. As for the factual issues in dispute, while it is not necessarily a simple or easy task to assess the credibility of witnesses or determine the authenticity of documents, neither would I describe such determinations as complex.

53In assessing the complexity of the legal and factual issues at stake, I also note that this proceeding was originally scheduled to be completed in two days. That reflected the best judicial estimate of the reasonable amount of time that should have been required to properly address it.

54This brings me to considerations of reasonableness and proportionality in light of the above findings regarding the importance and complexity of the issue at stake.

55It is axiomatic that the most valuable commodity in the administration of justice is time, specifically, court time. I would also note that the demand for court time in family law matters has increased significantly since the onset of the COVID-19 pandemic. The result is that at present, the earliest court dates available for long trials in family matters in this court are in March 2024.

56These parties have been before me 31 time since March 2021, dealing with the narrow issue of whether they were divorced in Bangladesh in 2017. They have taken up approximately 90 actual hours of court time, the rough equivalent of a 4- to 5-week trial. I have issued 19 separate endorsements and, by my conservative estimate, have spent at least 750 hours on the matter, including in reviewing the approximately 11,000 pages of material filed by the parties.

57I regard the amount of court resources devoted to the determination of whether these parties were divorced in Bangladesh in 2017 to be exorbitant and, given the increasing demands for court time in family law matters, bordering on the unconscionable. I fully recognize that this issue is extremely important to these parties. But there are numerous other parties seeking trial time on matters that are equally if not more important to them. Since there is a finite amount of court time available, spending an excessive and unwarranted amount of time on a particular matter inevitably comes at the expense of other parties with equally legitimate claims to court time, thereby increasing the length of time that those other parties are required to wait for their day in court.

58I would also note that, in my judgment, the excessive number of appearances required in this matter is largely attributable to the way the Applicant and her counsel conducted the litigation. Because the Applicant put forth that the Respondent as well as his counsel were engaged in an ongoing conspiracy to defraud her, even relatively routine matters that are normally settled between counsel became a matter of dispute. This resulted in repeated requests by Applicant’s counsel to attend before me, typically on an urgent basis, to address the matters in dispute.

59By way of illustration, as discussed above, on April 28, 2022, I ordered that various third parties testify before me by Zoom regarding their knowledge of the May 2020 marriage between Towfique Ahmed and the Applicant. Because the Applicant alleged that the Respondent’s counsel was actively attempting to perpetrate a fraud on the court, numerous disputes arose between counsel over how that testimony would be given. Over the next three weeks, counsel for the Applicant requested three urgent attendances before me to address his concerns. In my view, all the issues raised by the Applicant’s counsel ought properly to have been resolved on consent. After the third such attendance on May 19, 2022, I directed that no further attendances, urgent or otherwise, would be permitted in advance of the questioning. Only then did the requests for attendances before me cease, and the questioning took place before me without incident on May 25-27, 2022.

60Since the Applicant commenced this proceeding in bad faith and has advanced numerous allegations of fraud that were shown to be without merit, she cannot now complain about the quantum of costs incurred by the Respondent to successfully rebut the allegations. As Gray J. observed in Cimmaster v. Piccione, “[i]t is cold comfort to the successful party, who has been forced to expend many thousands of dollars and many days and hours fighting a claim that is ultimately defeated, only to be told that it should obtain a reduced amount of costs based in some notional concept of proportionality.”³⁴ Gray J. concluded that the concept of proportionality would only apply where a successful party has over-resourced a case, but otherwise should not result in a reduction of costs payable.

61I find no such over-resourcing by the Respondent in this case. Respondent’s counsel spent approximately 900 hours on this matter (not including an additional 300 hours of law clerk time). Although Respondent’s counsel did not include a detailed breakdown of the specific tasks and dates on which this work was performed, I note that Applicant’s counsel (who likewise did not include a breakdown of work performed by task and date) spent even more time on this matter than did counsel for the Respondent.

62The hourly rates charged by Respondent’s counsel are also extremely reasonable. The vast majority of the work on the file was performed by the Respondent’s senior counsel, who was called to the bar of England and Wales in 1999, and the bar of Ontario in 2014. His regular hourly rate is $350 but the hourly rate applied to his services in this proceeding was $305. In contrast, two senior counsel for the Applicant, called to the bar of Ontario in 2014 and 2015 respectively, billed their time at a rate of $450 per hour, while a junior counsel called to the bar of Ontario in 2022 billed his time at a rate of $350 per hour. According to her costs submissions, had the Applicant been the successful party and been awarded costs on a substantial indemnity basis, she would have been seeking approximately $483,000, while her partial indemnity costs would have been $377,000. Both amounts far exceed the Respondent’s substantial indemnity costs of just under $300,000.

63Finally, the Applicant did not make an offer to settle. Although the Respondent did make an offer, it was not made until after the final submissions in November 2022 and, in any event, the terms of the offer exceeded the relief obtained by the Respondent. Thus, the Respondent’s offer does not factor into my consideration of the appropriate costs award.

64Taking all these matters into consideration, I view the cost award sought by the Respondent to be a fair and reasonable amount that should be paid by the Applicant. Accordingly, I order the Applicant to pay the Respondent’s costs in the amount of $298,292.34 within 60 days.

Settling the Terms of the Orders

65On February 8, 2023, while the issue of costs was under reserve, I was informed by counsel for the Applicant that the parties had been unable to agree on the terms of orders to be taken out from my December 2022 Endorsement, as well as from my July 2022 Endorsement. Counsel for the Applicant advised that “there is an urgency in the matter”, since there is an appeal currently pending before the Court of Appeal and, further, Copeland J.A. has directed the parties to obtain the orders “as soon as possible”. Although I was provided with two different sets of draft orders proposed by each of the parties, there was no explanation of the differences between them, or the reasons for those differences. Accordingly, I directed counsel to attend before me on February 10, 2023 to speak to the matter, and my directions below reflect the submissions of counsel.

66With respect to the order that should issue as a result of my December 2022 Endorsement, the endorsement itself specifically sets out the terms of the order to be taken out. Both parties have prepared draft orders which, with minor differences, correctly reproduce what I directed in the December 2022 Endorsement. Based on the draft orders submitted, I have prepared and signed the final order attached to this endorsement.

67No order should issue with respect to the July 2022 Endorsement. That endorsement merely made a finding of fact which was not intended to have any legal consequence or effect. Moreover, as explained in paragraph 24 of my December 2022 Endorsement, the fact I found, (namely, that the Applicant married Towfique Ahmed in May 2020), is collateral to the issue before me, which is whether the parties were divorced in 2017. I therefore decline to sign either of the draft orders submitted by the parties with respect to the July 2022 Endorsement.

P. J. Monahan J.

Released: February 27, 2023

COURT FILE NO.: FS-20-20-14738

DATE: 202302xx

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FARZANA RATAN SONIA Applicant/Responding Party

– and –

ABDUL HANNAN RATAN Respondent/Moving Party

COSTS ENDORSEMENT

P.J. Monahan, J.

Footnotes

1. 1R.S.C. 1985, c. 3 (2nd Supp.).
2. 2R.S.O. 1990, c F.3.
3. 3See Sonia v. Ratan, 2022 ONSC 6340 (the “December 2022 Endorsement”).
4. 4The December 2022 Endorsement consists of 220 paragraphs and more than 23,000 words. In addition, over the course of this proceeding, I issued 18 other endorsements dealing with various procedural, evidentiary, or factual matters, including an endorsement issued in July 2022 that is over 100 paragraphs and approximately 14,000 words.
5. 5Including the most recent appearance before me on February 10, 2023, the parties have been before me 31 times and filed a combined total of nearly 11,000 pages of documentary material (approximately 3500 pages by the Applicant, and approximately 7300 pages by the Respondent).
6. 6Nikah is the marriage contract in Islam.
7. 72019 ONCA 821, 31 R.F.L. (8th) 140, at para. 14.
8. 8O. Reg. 114/99.
9. 9See Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8; Mattina v. Mattina, 2018 ONCA 867, at para. 10.
10. 10See Family Law Rules, rr. 24(1), 24(6). See generally Berta v. Berta, 2015 ONCA 918, 75 R.F.L. (7th) 299, at para. 94.
11. 11See Mattina, at para. 13.
12. 12See Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12.
13. 13Ibid, at para. 19.
14. 14Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O. R. (3rd) 291 (C.A.), at para. 24, citing Zesta Engineering Ltd. v. Cloutier (2002), 2002 25577 (ON CA), 21 C.C.E.L. (3d) 161 (Ont. C.A.), at para. 4.
15. 15See Jackson v. Mayerle, 2016 ONSC 1556, 130 O.R. (3d) 683, at para. 56.
16. 16See S.(C.) v. S.(M.) (2007), 2007 20279 (ON SC), 38 R.F.L. (6th) 315, at para. 17, aff’d 2010 ONCA 196, 76 R.F.L. (6th) 14.
17. 17Jackson v. Mayerle, at paras. 58-59.
18. 18See Scalia v. Scalia, 2015 ONCA 492, 126 O.R. (3d) 241, at para. 68.
19. 19See e.g. Dwaydar v. Mohsen, 2018 ONSC 2037, at paras. 7-9; Di Bratto v Sebastiao, 2015 ONSC 3979 at paras. 26, 29; Dababneh v. Dababneh, 2004 5858 (Ont. S.C.), at paras. 8, 14.
20. 20See MacKinnon v. Ontario Municipal Employees Retirement Board, 2007 ONCA 874, 88 O.R. (3d) 269, at para. 92.
21. 21See Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, 140 O.R. (3d) 81, at para. 43c.
22. 22See Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766, 140 O.R. (3d) 77, at para. 8.
23. 23See Docherty v. Catherwood, 2016 ONSC 2140, at para 25b.
24. 242651171 Ontario Inc. v Brey, 2022 ONCA 205, at para 15, citing Bargman v. Rooney (1998), 83 O.T.C. 345 (Gen. Div.), at para. 19.
25. 25See Family Law Rules, r. 24(11)(c).
26. 26See Jordan v. Stewart, 2013 ONSC 5037, at para. 116; Downs v. Downs, 2022 ONSC 5561, at para. 15; Stephens-Hinds v. Hinds, 2020 ONSC 6187, at para. 23c; Rafeiro v. Bolhuis, 2020 ONSC 7205, at footnote 19.
27. 27See Benzeroual v. Issa and Farag, 2017 ONSC 6225, 97 R.F.L. (7th) 111, at para 55.
28. 28See K.K. W-P. v. M.E. and S.E., 2018 ONSC 1305, at para. 6c.
29. 29See Smith Estate v. Rotstein, 2011 ONCA 491, 106 O.R. (3d) 161, at para 54.
30. 30This statement is ironic, since it highlights the fact that, while it is an easy matter to cry “fraud”, it is much more difficult to prove the authenticity of documents that are alleged to be fraudulent. This is particularly the case in this proceeding, where most of the documents originated in Bangladesh, and many of them were prepared in Bengali. This is yet another reason why, in the circumstances of this case, there was a particular duty on the Applicant to provide credible evidence of fraud before advancing such claims.
31. 31The Applicant had married Towfique Ahmed in May 2020.
32. 32See Chapter 2, “Integrity”.
33. 33See Sonia v. Ratan, 2022 ONSC 3690, at footnote 10 (the “July 2022 Endorsement”).
34. 34See Cimmaster v. Piccione, 2010 ONSC 846, at para. 19.