Court File and Parties
Court File No.: D44858/08 Date: November 2, 2015
Ontario Court of Justice
Re: Peter and Pat Viris - Applicant And: George and Evenia Stavrakoukas – Respondents
Before: Justice Roselyn Zisman
Counsel:
- Michael Chilco - for the Applicants
- George and Evenia Stavrakoukas – self represented
Heard On: By written submissions
Endorsement on Costs
Introduction
[1] The Respondent George Stavrakoukas brought a motion to change the order of Justice Brownstone dated July 15, 2009 wherein he was required to pay child support of $700.00 per month based on an income of $46,500.00 for the two children Angie Stavrakoukas born September 3, 1999 and Georgia Stavrakoukas born June 22, 2001. The children had been placed in the custody of the Applicants, the maternal grandparents, by order dated February 9, 2009.
[2] A motion by Mr. Chilco, counsel for the Applicants, to add as a party the Respondent Evenia Stavrakoukas, who is the children's biological mother, was subsequently granted. Ms Stavrakoukas was required to serve and file her financial statement. Costs of $1,500 were ordered payable by the Respondent Evenia Stavrakoukas.
[3] A further order was granted to permit the Respondent Stavrakoukas to amend his motion to change to add a claim for access and custody. There is a temporary order dated June 3, 2009 that permits access to the Respondents supervised by the Children's Aid Society of Toronto or an adult approved of by the society. The final order is silent as to access and a previous motion for access on June 28, 2011 was dismissed. The Respondent George Stavrakoukas is estranged from the children.
[4] There was also a motion by the Respondent George Stavrakoukas to attend one of children's graduation that was dismissed. Costs of $1,000 were ordered payable by him.
[5] The Respondents also filed several Form 14B motions that were either dismissed or adjourned to be dealt with on notice to the Applicants.
[6] A temporary order was made on May 13, 2015 that varied the order of July 15, 2009 to provide that based on the combined income of both of the Respondents namely, $46,500 that the Respondents pay a total of $700.00 per month subject to any variation on the hearing of the motion to change.
[7] The parties agreed to the motion to change proceeding before me by means of a short focused trial. It was agreed that the parties would each rely on the affidavit material filed, provide short updating oral evidence for one hour and be permitted to cross-examine the opposing party for one hour.
[8] On the trial date of July 17, 2015 the Respondents agreed that the temporary order of May 13, 2015 be made final. On consent the parties agreed to the Office of the Children's Lawyer being appointed.
[9] Counsel for the Applicants advised that he was seeking costs and was directed to provide written submissions and his Bill of Costs. The Applicants' submissions and Bill of Costs were served on the Respondents on August 13, 2015. No response was filed by the Respondents.
[10] The Applicants seek full recovery of their costs of $24,675 less $3,500 already ordered and paid by the Respondents, for a total of $21,175 inclusive of disbursements and applicable taxes on the basis that:
a. Within days of the Applicants being served with the motion to change, counsel wrote to the Respondent indicating that the Applicants would prefer to resolve the matter by agreement and not through the court process. The Respondent responded by making it clear that he intended to use the court process to complicate and delay and cause distress to the Applicants. He also denied knowing why counsel was writing to him despite the fact that Mr. Chilco had been representing the Applicants throughout the court process since 2008;
b. The Respondent, George Stavrakoukas then attended at the police station and attempted to have a charge of harassment laid against counsel and also attended at the Law Society to have a complaint made against counsel;
c. There were two attendances with respect to the motion to add the Respondent Evenia Stavrakoukas as a party and one attendance with respect to attendance at the graduation and further attendances for conferences and the trial;
d. A total of 12 affidavits were prepared and a number of Form 14Bs including an attempt to change the venue to accommodate the Respondent and extensive correspondence was exchanged;
e. Lack of complete financial disclosure by the Respondents particularly with respect to the source of their interest income of $3,000 per year as shown on their tax returns but not referenced on their financial statements; and
f. On the day of trial, the Respondents agreed to the temporary order of May 13, 2015 being a final order and in effect agreeing to no change on the final order of child support as had been requested in the motion to change. The Applicants therefore incurred unnecessary legal fees for counsel who had spent time preparing for the trial.
Settlement Attempts
[11] As indicated counsel for the Applicants attempted to negotiate a settlement without proceeding to court.
[12] No offers to settle were submitted by the Applicants. In the circumstances given the lack of any merit to the motion to change and the resistance to the Respondent Evenia Stavrakoukas being added as a party it would have been advisable for counsel to have served an offer to settle.
Applicable Legal Principles
[13] Rule 24(1) of the Family Law Rules provides guidance on costs on a family law context. Rule 24 (1) sets out the basic assumption that a successful party is entitled to costs. This provision still permits a court broad discretion in determining if costs should be paid, by whom and in what amount.
[14] Rule 24 (11) provides a further list of factors a court should consider in dealing with costs:
A person setting the amount of costs shall consider,
a. the importance, complexity or difficulty of the issues;
b. the reasonableness or unreasonableness of each party's behavior in the case;
c. the lawyer's rates
d. the time properly spent on the case, including conversations between the lawyer and the party, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
e. expenses properly paid or payable; and
f. any other relevant matter.
[15] In Serra v. Serra 2009 ONCA 395, [2009] O.J. No. 1905 at para. 8, the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:
to partially indemnify successful litigants for the cost of litigation;
to encourage settlement; and
to discourage and sanction inappropriate behavior by litigants.
[16] I also agree with the comments by Justice Perkins in Biant v. Sagoo, [2001] O.J. No. 3693 (S.C.J.) that:
the preferable approach in family law cases is to have cost recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result.
[17] I am also mindful that the court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher v. Public Counsel (Ontario) (2004), 2004 CarswellOnt 2521, [2004] O.J. No. 2634 (Ont. C.A.), the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.
Application of Legal Principles to the Facts
[18] The Applicants were totally successful in responding to the Respondent George Stavrakoukas's motion to change his child support obligation and in having the Respondent Evenia Stavrakoukas added as a party. The Applicants are presumed to be entitled to their costs.
[19] In determining the amount of costs, I have considered the legal principles and the following factors as set out in Rule 24 (11) as follows:
a. The importance, complexity or difficulty of the issues: The issues were not complicated or difficult but it was important to the Applicants that they continue to receive child support. The conduct of the Respondents and in particular George Stavrakoukas unnecessarily prolonged and complicated the court process.
b. The reasonableness or unreasonableness of each party's behavior in the case: The Respondents did not act reasonably with respect to this motion. They sought relief such as an order prohibiting the Applicants from removing the children from Ontario, asking to attend a graduation when the Respondent George Stavrakoukas had not seen the children for years and making allegations that the Applicants were unable to care for the children despite the fact they have done so for almost 6 years. They failed to comply with orders to file updated financial statements and failed to provide complete financial disclosure. They decided not to proceed with the trial on the day of the trial thereby causing the Applicant to incur unnecessary legal fees.
c. The lawyer's rates: The Applicants' counsel was called to the bar in 1978 and is an experienced family law counsel. Although his hourly rate of $450 is reasonable, the Bill of Costs is calculated at the hourly rate of $400 which is the rate I have considered.
d. The time properly spent: Counsel has included in his Bill of Costs costs with respect to two motions for which the Applicants were already awarded costs. Despite the fact that the actual legal costs for those motions are higher than the amounts previously awarded it is not permissible for counsel to now seek further costs for those motions. There was one attendance for which costs were reserved as the Respondents requested an adjournment and I am prepared to order costs for a wasted attendance. The time spent as docketed is appropriate with respect to interviews with the parties, preparation of affidavits, financial statements and responses to the Respondents' amended pleadings, correspondence, attendances at the first appearance, preparation of Court orders, and preparation for trial.
e. The expenses properly paid and payable: The usual disbursements are claimed for service, filing and photocopies. The total cost of $685.20 is reasonable.
f. Any other relevant matter: Applicants' counsel anticipated that the Respondents would submit that they do not have the financial resources to pay costs but that in the circumstances of this case that should not be a factor due to the lack of financial disclosure by the Respondents. However, as the Respondents have not filed any response to the Applicants' cost submissions I assume they have the financial resources to pay any cost order that is made. Further, even self-represented litigants need to be aware that if they commence and continue with court proceedings that are without merit, they run the risk of being responsible for legal fees. It is incumbent on all litigants to continually re-assess the merits of their case and not assume that just because they are self-represented they can continue to litigate with impunity and without any financial consequences.
[20] In considering all of these factors, I find that the Applicants are entitled to close to full recovery of all of their costs, except for the costs of motions that have already been awarded and that the Respondents should be required to pay the Applicants costs of $15,000 inclusive of disbursements and applicable taxes. As the main issue of the motion to change pertained to child support the costs order is properly enforced for the Family Responsibility Office as a support order.
[21] The issue of appointing the Office of the Children's Lawyer was on consent and any issues with respect to the Respondents' claim for access and or custody will be deferred pending the outcome of the investigation by the Office of the Children's Lawyer.
Order
The Respondents shall pay to the Applicants costs fixed at $15,000.00 inclusive of disbursements and applicable taxes payable within 60 days.
The Family Responsibility Office shall enforce this order as a support order.
Support Deduction order to issue.
Counsel for the Applicants shall prepare this order and the approval of the Respondents as to form and content is hereby dispensed with.
Justice Roselyn Zisman
Date: November 2, 2015