Court File and Parties

Court File No.: FC-22-2112 Date: 2024/06/10 Superior Court of Justice - Ontario

Re: Judy Petra Maria Van Stralen, Applicant And: Rajah Durai Rasalingam, Respondent

Before: Justice Engelking

Counsel: Carol Craig, For the Applicant Ronan Blake, For the Respondent

Heard: In Writing

Endorsement on Costs

[1] A motion was heard on April 2, 2024. My decision on the motion was released on April 22, 2024. The parties were invited to provide written submissions on costs if they were unable to agree. I have received submissions from both parties. This is my decision on the costs of the motion.

[2] The Applicant was the successful party on the motion. She seeks an order of costs of $18,558.40, $13,359.43 of which is on a full recovery basis from March 20, 2024 onwards, and $4,600.86 of which is on a partial indemnity basis up to March 20, 2024.

[3] The Respondent concedes that as the successful party on the motion, the Applicant is entitled to an order of costs. His position, however, is that the Applicant’s costs are excessive for the issues on the motion. His own costs amounted to $9,941, which he submits should be considered by the court in determining what quantum of costs is reasonable and proportionate.

[4] The Applicant relies on her Offer to Settle sent to the Respondent on March 20, 2024, in support of her request for costs on a full recovery basis from that date. The Applicant submits that her offer was more favorable to the Respondent than the outcome of the motion because it included a disbursement to each party of $100,000 from funds currently held in trust.

[5] The Respondent’s position on the offer is that it also included a clause, which was non-severable, for the repayment of a disputed loan to the Applicant’s corporation of $80,000, with which the Respondent does not agree. Although the order made on the motion otherwise nearly mirrors the offer, he could not accept it for this reason. The Respondent submits, moreover, that as it was non-severable, the cost consequences of Rule 18(14) do not apply.

The Law

[6] The Ontario Court of Appeal has held that the Family Law Rules on costs are “designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants.” Mattina v. Mattina, 2018 ONCA 867, paragraph 10.

[7] Rule 24(12) of the Family Law Rules sets out a list of factors the court shall consider in determining an appropriate amount of costs, including that there be reasonableness and proportionality in any costs award. Factors to be considered include each parties’ behaviour, their time spent, any offers to settle, legal fees, expert witness fees and any other properly paid expenses. Rule 18(14) of the Family Law Rules provides that there are cost consequences to not accepting an offer if the criteria in that rule are met.

[8] Regardless of whether the consequences of Rule 18(14) apply, given the inclusion in the Applicant’s Offer to Settle of the repayment of the $80,000 disputed loan, the outcome of the motion was ultimately more favorable to the Respondent than was the Offer to Settle.

[9] Therefore, the Applicant is, in my view, not entitled to full recovery of her costs from the date of the offer.

[10] I also agree that the hours billed on the motion are somewhat excessive based on the issues to be decided. Although highly disputed, the issues were not complex.

[11] There shall be an order that the Respondent pay to the Applicant $9,600 for the motion, which represents recovery on a partial indemnity basis on a reduced quantum of hours.

Justice Engelking Date: June 10, 2024