CITATION: Tsavaras v. Avati, 2023 ONCJ 307
DATE: July 17, 2023
COURT FILE NO. D82117/15
ONTARIO COURT OF JUSTICE
B E T W E E N:
MARIA TSAVARAS
ALYSSA WARIAS, AGENT ONLY, for the APPLICANT
APPLICANT
- and –
GIUSEPPE AVATI
MEYSA MALEKI AND STEPHANIE ABINAKLE, for the RESPONDENT
RESPONDENT
HEARD: IN CHAMBERS
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
[1] On June 29, 2023, the court heard the respondent’s (the father’s) motion for summer parenting time with the parties’ 10-year-old daughter. On the return of the motion, the parties were able to reach an agreement regarding the summer parenting schedule. However, they were unable to reach an agreement about whether the parenting time should be supervised and asked the court to determine this issue.
[2] The court found that there was no need for supervision. However, to ease the child’s transition to the father, the court ordered that a third party would monitor the first and last half hour of the father’s first two visits. The father’s parenting time was increased to accommodate this.
[3] The father was given permission to make written costs submissions. He seeks his costs of $11,643. The mother asks that no costs be ordered.
Part Two – Brief background
[4] The child lives with the mother in Toronto.
[5] The father lives in Australia. He often comes to Canada during the summer to exercise in person parenting time with the child.
[6] The parties litigated this matter from 2015 to 2017. They eventually consented to a final order dated December 19, 2017. This order provides that the mother has custody of the child and that the father has both virtual and in person access with the child.
[7] In July 2019, the father brought a similar urgent motion for summer access. The mother, as she did here, sought supervised access. She was unsuccessful and unsupervised access was ordered by Justice Melanie Sager. The parties eventually resolved the summer schedule and Justice Sager ordered the mother to pay the father’s costs of $12,500.
[8] The mother has not paid any of those costs.
[9] The mother obtained counsel for the purpose of the motion. Counsel worked well together on the motion date to resolve the summer parenting time schedule, save and except for the supervision issue.
Part Three – Legal principles
3.1 General principles
[10] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that 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 subrule 2 (2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).
[11] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[12] An award of costs is subject to the factors listed in subrule 24 (12), subrule 24 (4) pertaining to unreasonable conduct of a successful party, subrule 24 (8) pertaining to bad faith, subrule 18 (14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.
2.2 Success
[13] Subrule 24 (1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (SCJ- Family Court).
[14] To determine whether a party has been successful, the court should examine who was the successful party, based on the positions taken in the litigation. See: Lazare v. Heitner, 2018 ONSC 4861. This assessment includes the positions taken in the pleadings, and the specific relief sought at the hearing, if different. See: Kyriacou v. Zikos, 2022 ONSC 401. The court may also take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson, 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (SCJ); Todor v. Todor, 2021 ONSC 3463; G.E. v. J.E., 2023 ONSC 1743; Kyriacou v. Zikos, supra.
[15] Subrule 24 (6) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.
[16] Divided success does not equate with equal success. It requires a comparative analysis. Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine. See: Jackson v. Mayerle, 2016 ONSC 1556, paragraph 66.
3.3 The amount of costs
[17] Subrule 24 (12) reads as follows:
24 (12) In setting the amount of costs, the court shall consider,
a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party’s behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle including offers that do not meet the requirements of rule 18,
iv) any legal fees, including the number of lawyers and their rates,
v) any expert witness fees, including the number of experts and their rates,
vi) any other expenses properly paid or payable; and
(b) any other relevant matter.
[18] In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.
[19] A useful benchmark for determining whether costs claimed are fair, reasonable and proportionate is to consider the amount that the unsuccessful party paid for their own legal fees and disbursements in the same matter. See: Smith Estate v. Rotstein, 2011 ONCA 491 (Ont CA); Durbin v. Medina, 2012 ONSC 640 (SCJ); Scipione v. Del Sordo, 2015 ONSC 5982 (SCJ); Zhang v. Guo, 2019 ONSC 5767 (Div Ct); Laidman v. Pasalic and Laidman, 2020 ONSC 7068.
Part Four – Success
[20] The parties both made offers to settle the motion. Neither offer satisfied the preconditions for the costs consequences set out in subrule 18 (14) to apply.
[21] The father was the more successful party on the issue argued at the motion. The court found that supervision of his parenting time wasn’t warranted. It only ordered monitoring of the beginning and end of his first two visits to ease the transition for the child.
[22] The motion was necessary for the father to obtain a meaningful summer parenting time schedule with the child. The mother was slow to respond to his parenting time request and she proposed to restrict it, as she had done in 2019.
[23] The court disagrees with the mother’s submission that the father waited until the last minute to bring the motion and then overwhelmed her with court documents. The mother should have responded to his parenting time request earlier. She was also offered an opportunity to adjourn the motion on terms and declined.
[24] The father’s motion contained requests for relief beyond what the court needed to decide on an urgent basis. The mother had to respond to this.
[25] The father also sought overnight parenting time. A compromise was reached on the motion date and the father will not have overnight parenting time this summer. The mother was successful on that issue.
[26] Overall, the father was more successful than the mother on the motion. The presumption that he is entitled to costs was not rebutted.
Part Five – Amount of costs and order
[27] This motion was important to the parties. It was not difficult or complex.
[28] The father acted reasonably. He raised the summer parenting time issue in a timely manner and tried to resolve the issue without court intervention. He made a reasonable offer to settle.
[29] The mother was initially unreasonable on the parenting time issue. She was more reasonable after she was served with the motion materials and retained counsel for the motion. She made a constructive offer to settle. However, this was only after the father was put to the cost of bringing this motion.
[30] The rates and amount of time claimed by the father’s counsel are excessive. Many of the heads of relief sought by the father on the motion were unnecessary for the purpose of the urgent motion. This extra time won’t be allowed for the purpose of this step.
[31] The balance of the time claimed by the father, for what was essentially a one-month parenting time schedule, is also not reasonable and proportionate. The court finds that the mother’s bill of costs of approximately $6,125 for the motion is a better indication of what are reasonable costs for this motion.
[32] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.). The mother earns a minimal income and is in receipt of Ontario Works.
[33] Difficult financial circumstances are a factor but are not always a reason to deprive a successful party of costs or to reduce the amount of costs. See: Beaulieu v. Diotte, 2020 ONSC 6787. This factor is even more resonant where the mother has already had one costs order made against her for unnecessarily restricting the father’s parenting time with the child.
[34] Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3338; Balsmeier v Balsmeier, 2016 ONSC 3485.
[35] The mother should have reasonably expected to pay the costs that will be ordered if she was unsuccessful.
[36] The court will not order a payment schedule for costs. The mother has acted unreasonably by failing to pay any of the costs ordered by Justice Sager.
[37] An order shall go that the mother shall pay the father’s costs of $3,500 for fees plus 13% for HST, being $455, for a total of $3,955. The costs are due and payable in 30 days.
Released: July 17, 2023
Justice S.B. Sherr