Court File and Parties

Court File No.: FC-17-FS-52780 Date: 2025-10-28 Superior Court of Justice - Ontario

Re: Monika Kristina Sud, Applicant And: Rakesh Rocky Sud, Respondent

Before: The Honourable Justice J. Breithaupt Smith

Counsel: L. Yamoah, Counsel for the Applicant Respondent is Self-Represented

Heard: In Writing

Costs Endorsement

Introduction

[1] On May 29, 2025 I rendered my decision in this trial held in February and March of this year (reported at 2025 ONSC 1268). Firstly, I apologize for the delay in sending this out, my decision on costs.

Principles Governing Costs Awards

[2] Modern costs rules are designed to foster four fundamental purposes: (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 Rule 2(2) of the Family Law Rules. (See Family Law Rules, rule 2(2); Mattina v. Mattina, 2018 ONCA 867 at paragraph 10).

[3] Cost awards are discretionary and engage two important principles in the exercise of judicial discretion: reasonableness and proportionality. There is no distinction between family cases having a financial component and family cases that focus exclusively on parenting issues; costs consequences and considerations apply equally to all family litigation. Consideration of success is the starting point. Whilst there is a presumption that the successful party is entitled to costs, judicial discretion prevails; a costs award is not automatic (Mattina, supra, at paragraphs 12 & 13). An assessment of reasonableness and proportionality of costs includes the following factors: (See Snelgrove v. Kelly, 2017 ONSC 4625 at paragraph 31 citing Serra, Boucher v. Public Accountants Council (Ontario), [2004] O.J. No. 2634 (C.A.) and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 CarswellOnt 189 (C.A.)):

1. Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay.

2. Costs need to be proportional to the issues and amounts in question and the outcome of the case.

3. Amounts actually incurred by the successful litigant are not determinative.

4. In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.

[4] Of course, the factors set out under Rule 24 are also applicable, portions of which restate the concepts set out in the jurisprudence.

Trial Summary and Agreed Facts

[5] The parties worked diligently to reach three Statements of Agreed Facts which certainly reduced trial time. Further, the following opening paragraphs from my decision summarize my conclusions (the Respondent being "Rakesh" and the Applicant being "Monika"):

[2] Having heard and considered the evidence, I conclude that the Respondent's trust and ownership claims against the parties' former matrimonial home are statute-barred, however his claim for an equalization payment is not. As the former matrimonial home ceased to be so on the date of divorce, the Respondent's claim for occupation rent thereafter has no foundation in law.

[3] Regarding the jointly-owned vacation timeshare, I agree with the Respondent that the appropriate time for the Applicant to seek contribution for carrying costs was in negotiating its sale in 2022: I disallow such recovery now. I address the remaining jointly-owned investment account and household contents.

[4] Regarding spousal support, I find that Rakesh owed spousal support to Monika from the date of separation onward, which obligation ended once Monika achieved stable self-sufficiency.

[5] Regarding child support, it is undisputed that the Respondent paid nothing since April of 2012. His obligation in that regard, together with proportionate contribution toward the Applicant's out-of-pocket contributions to the children's post-secondary education costs, based on an imputed income for certain years, is calculated accordingly.

Respondent's Preparation and Settlement Offers

[6] In that context, it might have been possible to simply indicate that each party achieved success on a primary issue, and thus that success was divided, with no costs flowing to either party. However, this would be inappropriate for two reasons:

(1) only Ms. Sud was represented by counsel, and in view of my determination at trial that Mr. Sud failed to prepare adequately, the bulk of the work fell squarely upon Ms. Yamoah's shoulders; and

(2) Ms. Yamoah, having anticipated all legal issues, guided Ms. Sud through the making of four Offers to Settle, whilst Mr. Sud did not make a single offer.

[7] Regarding the first point, I wrote at paragraph 13:

[13] As Rakesh's testimony unfolded, it became abundantly clear that he had failed to adequately prepare for trial: much grace was granted to him. He had failed to disclose several documents which were nonetheless entered as exhibits and he breached the "rule in Browne v. Dunn" by attesting to narrative theories that had never before been proposed, let alone put to Monika in cross-examination. As a result, I granted leave for Monika to be re-called to testify in reply, which is a remedy to be used only sparingly, on the basis that neither costs nor an adjournment would adequately compensate for the evolving situation.

[8] Regarding the second point, my overall conclusion at trial was that the sum of $103,533.29 was owed by Rakesh to Monika. Thus, the following summary of Monika's Offers is instructive:

• October 19, 2022: Monika offered to pay Rakesh $115,000, plus half of the joint investment.

• June 23, 2023: Monika offered to pay Rakesh $256,000, plus half of the joint investment and certain household contents.

• April 23, 2024: Monika offered to pay Rakesh $275,000, plus half of the joint investment and certain household contents.

• June 3, 2024: Monika offered to sell the matrimonial home and divide the proceeds of sale equally (which was Rakesh's primary concern throughout this litigation), less $112,000 in retroactive spousal support, child support and carrying costs. Assuming that the sale price of the matrimonial home would have been at least $720,000 (as was the evidence of Rakesh's expert witness as of October of 2023), Rakesh would have realized at least $248,000.

Assessment of Respondent's Unreasonable Conduct

[9] For clarity, I assess Rakesh's behaviour as being unreasonable despite his success on the discretionary issue of the limitations period for his equalization claim as contemplated by Rule 24(7) of the Family Law Rules because:

a. he failed to make fulsome financial disclosure at any point during the litigation up to and including during the trial (see paragraphs 33, 34 and 100 of my trial decision);

b. he failed to properly attend to and consider Monika's settlement offers which is evident by the absence of making any counter-offer at any point over this protracted litigation; and

c. he was unprepared at trial, such that he "seemed frequently surprised as the evidence unfolded, even during his own testimony." (See paragraph 28 of my trial decision).

Respondent's Arguments on Costs

[10] In response, Rakesh submits that Monika's request for $113,826.40 in costs on the substantial indemnity basis (80% of the total incurred) is excessive because:

(1) the issues were not novel or complex;

(2) the costs claimed are disproportionate to the value of the dispute when compared with Monika's offers to settle;

(3) the claims include duplications of time expended by counsel and law clerks and inefficiencies in billing; and/or

(4) Rakesh is unable to pay costs having regard to the judgment for spousal and child support such that "the imposition of a further costs award in the amount sought by [Monika] would be crushing and would effectively render [him] destitute."

Court's Response to Respondent's Arguments

[11] Unfortunately, Rakesh misunderstands or misinterprets two significant concepts as determined in my ruling.

Misunderstanding of Statute-Barred Claim

[12] Firstly, he submits that I found that his equalization claim was not statute-barred, and thus that he was justified in his litigation approach. That is not correct. Rakesh's equalization claim was statute-barred under section 7(3)(a) of the Family Law Act as having been advanced after the sixth anniversary of the date of separation (i.e. July 31, 2016); the earliest of the options listed at section 7(3). I exercised my discretion pursuant to section 2(8) to extend that time limit to allow his claim to proceed, primarily because although Rakesh missed the limitation period as calculated from the date of separation (per section 7(3)(b) of the Family Law Act), he was still within the limitation period as calculated from the date of the Divorce Order (per section 7(3)(b) of the Family Law Act), which was November 15, 2019. Notwithstanding his failure, over many years, to make any financial disclosure or advance his claims in any way, I specifically extended the benefit of the doubt to Rakesh in concluding that the delay arose "honestly and with no ulterior motive" (see Hevey v. Hevey, 2021 ONCA 740 and paragraphs 50 and 51 of my trial reasons). Simply stated, as the extension of the limitation period under section 2(8) of the Family Law Act is exclusively discretionary, it would have been impossible for either party to know with certainty how the court would rule on that issue. Thus, Rakesh's litigation approach cannot be defended on the basis of his success on this point; indeed, the unpredictability of discretionary issues should underscore the importance of making a settlement offer, which Rakesh failed to do.

Mischaracterization of Findings of Fact

[13] Secondly, Rakesh suggests that "the evidence also established that he has limited actual earning capacity and has suffered financial hardship as a result of the litigation" and references paragraphs 97–98 and 114–115 of my decision. These were not my findings, and whilst it is open to Rakesh to appeal my decision, until such time as my findings of fact are overturned or reassessed, they stand as the definition of what took place.

[14] It seems that many struggle to appreciate that when a jurist makes a finding of fact, he or she is defining reality. To use the example of a motor vehicle accident, when a judge concludes that Vehicle A entered the intersection after the traffic light turned red, which action caused the collision with Vehicle B, that is what happened. It is no longer a matter of opinion or perspective; the fact – the actual reality – is finalized by the stroke of the jurist's pen. It is a fearful thing: we who sit on the bench must take our responsibility very seriously in making such determinations, as we are shaping reality in the context of the lived experiences of other human beings.

[15] Here, Rakesh puts forward his perspective – that he suffered financial hardship as a result of the litigation – as if it is a fact. It is not. My conclusions were that he was intentionally underemployed and that he ought to have been earning employment income of $74,911.67 in 2014 and $88,750 in each of the years from 2015–2021. I did not conclude that Rakesh experienced undue hardship; certainly, I did not connect Rakesh's financial situation with this litigation in any way.

Court's Analysis of Respondent's Specific Arguments

[16] Returning then to Rakesh's arguments on costs:

(1) Complexity of Issues

I agree that the issues were not novel or complex, however as noted in the outset of this endorsement, that is a mark against him. Because of the absence of complexity, in the context of his choice to self-represent in this litigation, Ms. Yamoah was obligated to do all of the legal work in ensuring that the case could be presented effectively at trial.

(2) Proportionality to Settlement Offers

Rakesh's argument that the costs claimed by Monika are disproportionate to her settlement offers is confusing. It would seem that this point actually underscores Rakesh's failure to accept Monika's offers – he could have had as much as $280,000 in cash, rather than finding himself indebted in the amount of $103,533.29. The difference between those two figures is roughly $383,500, of which the costs sought by Monika are 30%. Litigation is risky – I do not see a 30% rate of exposure as an outlier in contested litigation taken all the way to a ten-day trial.

(3) Billing Duplications and Inefficiencies

Having said this, there are perhaps some billings which could be lessened for the purpose of determining a final figure. I do not wish to be misinterpreted as suggesting that counsel's billings are inappropriate or inconsistent with reasonable and honourable dealings in the legal services marketplace. However, by way of examples, 11.9 hours were expended by Ms. Yamoah personally, plus 2.7 hours by her law clerk, in addition to Ms. Yamoah's two-hour attendance for the Case Conference. 9.8 hours were expended by counsel for the Settlement Conference preparation, with 1.4 hours expended by her law clerk, plus 2.8 hours of counsel's time on account of the attendance. The calculated total of all fees and disbursements, inclusive of H.S.T., is $142,283.84. Payment of $113,826.40 is sought.

(4) Ability to Pay

Regarding Rakesh's submission that he cannot afford an award of costs, the following principles have been previously set down on the question of impecuniosity:

a. A court must consider ability to pay when awarding costs. However, while difficult financial circumstances are a factor, they will not automatically deprive a successful litigant of costs or reduce the amount of costs: Beaulieu v. Diotte, 2020 ONSC 6787, at para. 9.

b. Financial means of a party are relevant but are not a shield against liability: M.B. v. S.B.B., 2019 ONSC 3960 at para. 45.

c. Those who are the least able to afford to litigate should be more motivated to seriously pursue settlement and to avoid unnecessary proceedings: Balsmeier v. Balsmeier, 2016 ONSC 3485 at para. 47.

Costs Award

[17] Overall, I exercise my discretion to conclude that a modest reduction from the amount sought is reasonable. The total amount of costs payable by Rakesh to Monika is fixed in the amount of $99,000.

Enforceability of Costs Award

[18] The final question is enforceability. Section 1(1) of the Family Responsibility and Support Arrears Enforcement Act defines "support order" (for enforcement) as inclusive of "interest or the payment of legal fees or other expenses arising in relation to support or maintenance, and includes such a provision in a domestic contract or paternity agreement…" At paragraph 59 of Wildman v. Wildman, MacPherson J.A. for an unanimous court affirmed the statement: "It seems to me to be both impractical and inappropriate to suggest that this court should attempt to dissect costs awards in order to determine which part of the award relates to the support aspect of the proceedings." This conceptual approach was more recently echoed in Chippewas of Nawash Unceded First Nation v. Canada, 2023 ONCA 787, wherein the Court wrote: "A costs award should follow the overall outcome of an appeal rather than the proportion of issues on which a party succeeded or failed…" I will not therefore engage in parsing the amount of preparation and trial time expended on support issues in this particular matter. Suffice it to say that Monika's claims for unpaid support were raised as a set-off shield against Rakesh's property claims, and thus that all were inextricably intertwined. I therefore order that the entirety of the costs award will be enforceable by the Director of the Family Responsibility Office.

Final Order

[19] Final Order to issue as follows:

1. Costs of this litigation are fixed in the amount of $99,000 payable by the Respondent, Rakesh Sud, to the Applicant, Monika Sud, forthwith.

2. Costs shall be enforceable as support by the Director of the Family Responsibility Office in the full amount owed, namely $99,000.

J. Breithaupt Smith J.

Date: October 28, 2025