2024 ONSC 801, 2024 ONSC 801

CITATION : D’Mello v. Ramsunahi, 2024 ONSC 801 COURT FILE NO.: FS-12-2897 DATE: February 6, 2024 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) Denise D’Mello ) ) ) Self-represented Applicant )) ) - and - ) ) ) Roy Ramsunahi ) ) ) Self-represented Respondent ) ) ) ) HEARD: In writing REASONS ON COSTS MANDHANE J. [ 1 ] The parties appeared me for a four-day trial at which they were self-represented. The three issues at trial were equalization of net family property, ongoing and retroactive child support, and parental decision-making for the parties’ three children.

I released my Reasons for Judgment on January 22, 2024: D’Mello v. Ramsunahi , 2024 ONSC 474 . At trial, the Mother was awarded primary decision-making authority after consultation, retroactive child support based on the Father’s imputed income of $55,000, and post- separation adjustments of $60,000. There was no equalization payment owing. [ 2 ] The Mother was successful on all the issues and asks me to award costs of $95,000 on a full-indemnity basis.

The Father asks me to show “mercy” towards him in because he says he is impecunious and unable to pay any costs. [ 3 ] I have a broad discretion when it comes to awarding costs : Courts of Justice Act , R.S.O. 1990, c. C.43, s. 131(1) . To properly exercise my discretion, I must consider and apply Rule 24 of the Family Law Rules , O. Reg. 114/99 . The Mother says that the most important factors for me to consider here are her offers to settle, the Father’s behaviour, and her legal fees. [ 4 ] First, the Mother notes that she was more successful at trial than all her severable offers to settle.

a) Her October 18, 2021 offer provided that the Father pay retroactive child support based on an imputed income of $41,779, and

that he receive an equalization payment of $97,000 from the Mother.

b) Her February 4, 2022 offer provided that the Mother have primary decision-making after consultation, that the Father pay retroactive child support based on an imputed income of $50,000, and that he receive an equalization payment of $109,000 from the Mother.

c) Her December 5, 2023 offer provided that the Mother have primary decision-making after consultation, that the Father pay retroactive child support based on an imputed income of $50,000, and that he receive an equalization payment of $285,000 from the Mother.

d) Her December 19, 2023 offer provided that the Mother have primary decision-making after consultation, that the Father pay retroactive child support based on an imputed income of $50,000, and that he receive an equalization payment of $300,000 from the Mother. [ 5 ] I agree that the Mother was much more successful at trial than all her offers to settle. In particular, she was not ordered to pay anything to the Father in equalization, and I ordered that the Father pay significant child support arrears on an imputed income of $55,000.

On this basis, at a minimum, the Mother is entitled to substantial indemnity costs from October 18, 2021 onwards. [ 6 ] Second, I agree that the Father approach to this litigation was unreasonable and caused excessive delay. Foremost, the Father only becoming engaged in the litigation some four years after the Mother filed her Application, and only after the Family Responsibility Office commenced enforcement action against him for payment of child support arrears. After that, he brought a number of parenting motions while refusing to provide basic financial disclosure.

The Father’s conduct at trial also lengthened the proceedings unnecessarily. At para. 15 of my Reasons for Judgement, I stated as follows: The Father was also an argumentative witness who refused to concede basic facts. Up until trial, the Father refused to accept the accounting in the trust ledgers provided by real estate lawyers, even after the Mother provided him with the primary source business documents showing how the proceeds of sale for each property were disbursed.

It was only after a time-consuming and meticulous cross- examination by the Mother, that the Father conceded that it was “possible” that the proceeds of sale were used to pay off the parties’ debts, to pay off some of his personal debts, to pay off fines and penalties owed to the lenders, to pay for real estate lawyers, to satisfy costs orders made against him, and to provide the Mother with a without prejudice disbursement of $10,000.

Even in his closing submissions, the Father maintained that I should rely entirely on the Mother’s 2012 pleadings to find that there was $400,000 in equity in the properties as of valuation date, even though the properties were disposed of after her pleadings were filed. [ 7 ] Finally, while the Mother was self-represented at trial, she says that she paid a number of lawyers to assist her during the long history of this matter and that these fees were reasonable. I agree.

The Mother’s legal fees reflect the preparation of offers to settle; preparation, service and filing of extensive trial materials and submissions; and support for the Mother during the trial itself. Given the extent to which I relied on the Mother’s evidence and materials in arriving at a final amount for child support arrears and equalization, I find that the legal fees that she claims were reasonable given the complexity and importance of the matters.

However, since the Mother switched lawyers once, I find that there was some duplication of work, and would discount the legal fees by $10,000 to account for this. [ 8 ] Overall, I am prepared to award the Mother $75,000 in costs on a substantial indemnity basis. ______________________ Mandhane J. Released: February 6, 2024 CITATION : D’Mello v. Ramsunahi, 2024 ONSC 801 COURT FILE NO.: FS-12-2897 DATE: February 6, 2024

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Denise D’Mello Applicant - and - Roy Ramsunahi Respondent REASONS ON COST Mandhane J. Released: February 6, 2024