Court File and Parties

CITATION: Vasilodimitrakis v. Homme, 2020 ONSC 4414

COURT FILE NO.: D24/20

DATE: July 21, 2020

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: GEORGINA EVANTHIA VASILODIMITRAKIS, applicant/appellant

AND:

MICHAEL WAYNE HOMME, respondent/respondent in appeal

BEFORE: MITROW J.

COUNSEL: Farrah Hudani and Christina Doris for the applicant/appellant

Richard M. Gordner for the respondent/respondent in appeal

HEARD: written submissions filed

ENDORSEMENT on costs

INTRODUCTION

[1] This costs decision relates to my endorsement dated April 22, 2020, dismissing the appellant’s motion for a stay pending appeal (see Vasilodimitrakis v. Homme, 2020 ONSC 2355 (Div. Ct.)).

[2] The parties are the father and mother of a daughter, age 14 (“the child”). The child’s medical condition had prompted the appellant to bring an urgent motion in the court below to suspend the respondent’s in-person access, pursuant to an existing final order, because of the increased risk to the child from COVID-19.

[3] The respondent brought his own motion to continue access in accordance with the final order.

[4] Those motions were heard by Bondy J., who made an interlocutory order on April 7, 2020, continuing the respondent’s in-person access visits as specified in the final order, but including some further terms to minimize the child’s risk of infection.

[5] The appellant quickly brought a motion for leave to appeal to the Divisional Court, together with an urgent motion to stay the order of Bondy J. pending appeal.

[6] The motion for a stay first came before me on April 9, 2020 via teleconference. A finding of urgency was made as the respondent was scheduled to have an access weekend commencing the next day, April 10, 2020. On April 9, 2020, the appellant’s motion was adjourned for one week to allow the respondent to file material. The order included that the respondent’s access for the upcoming weekend would be deferred, subject to an order of make-up access depending on the outcome of the motion.

[7] In her motion for a stay, the appellant also sought an order appointing the Office of the Children’s Lawyer (“OCL”) or a private lawyer to represent the child, which was dismissed.

[8] In response to the stay motion, the respondent brought a motion for leave to file fresh evidence consisting of a further medical report from one of the child’s treating physicians, which was also dismissed.

[9] The dismissal of the appellant’s motion for a stay was subject to review, if leave to appeal was granted, at the discretion of the panel granting leave to appeal. Also, the dismissal of the appellant’s motion to appoint OCL or private counsel for the child, and the dismissal of the respondent’s motion for leave to adduce fresh evidence, were both without prejudice to each party’s right to bring a motion for similar relief if leave to appeal was granted.

[10] There is no dispute that the appellant filed a notice, dated April 28, 2020, abandoning her appeal and motion for leave to appeal.

[11] I have reviewed the parties’ written costs submissions, filed electronically as permitted by the endorsement, including the appellant’s response to the respondent’s reply submissions, the latter being specifically permitted pursuant to a brief subsequent endorsement dated May 25, 2020.

[12] The respondent submits that he is the successful party and that he is presumptively entitled to costs.

[13] The respondent has provided a bill of costs for fees, disbursements and HST at a “full indemnity scale” totalling $12,400.34. The fees component is 31.3 hours at $350 per hour, for a total of $10,955. The bill of costs also shows fees, disbursements and HST at a “partial indemnity scale” in the amount of $9,747.67. The fees component is 31.3 hours at $275, for a total of $8,607.50.

[14] The respondent seeks a costs order at a “partial indemnity scale” in the amount of $9,747.67.

[15] The appellant submits that no costs should be awarded. The appellant has not filed a bill of costs.

[16] For reasons that follow, I find that the respondent is entitled to costs in the amount set out below.

DO THE COSTS CONSEQUENCES OF R. 18(14) APPLY?

[17] Although the appellant submits that no costs should be awarded, the appellant does address at some length the provisions of r. 18(14) of the Family Law Rules, O. Reg. 114/99.

[18] The appellant served four offers. She concedes that two offers do not meet all the requirements of r. 18(14). However, the appellant argues that the other two offers do comply with r. 18(14). I disagree with that submission. I agree with the respondent that none of the appellant’s offers comply with r. 18(14).

[19] The appellant identifies her second offer (“offer no. 2”) and her fourth offer (“offer no. 4”) as complying with r. 18(14). For convenience, I set out r. 18(14):

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.

2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.

3. The offer does not expire and is not withdrawn before the hearing starts.

4. The offer is not accepted.

5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[20] Offer no. 2 was received by the respondent’s counsel by email at 3:21 p.m. on April 15, 2020, being the day before the motions were argued.

[21] The first issue is that the offer is conditional, as it provides that the offer shall only be binding if it is reviewed with the child by her counsel and the child expressly agrees to its terms.

[22] Although no order was made appointing counsel for the child, the evidence indicated that the child had retained her own counsel to provide her with advice on this matter. The respondent had not participated in the process of the child locating and retaining counsel. Further, as indicated in the endorsement dismissing the motion for a stay, no request was made before the motion judge to appoint counsel for the child, nor was any request made for the motion judge to hear from the child; also, the motion judge’s reasons do refer to concerns expressed by the child, as reported by the mother, and the motion judge had concerns as to the weight to be placed on that evidence (reasons dismissing appellant’s motion to stay, at paras. 67-68).

[23] I find that the presentation of a conditional offer is not contemplated by r. 18(14). The conditions of r. 18(14), particularly conditions 3 and 4, contemplate an offer that does not expire, is not withdrawn and is capable of acceptance. In the present case, any acceptance of offer no. 2 by the respondent would not resolve the motions because the child’s agreement still would be required and the respondent could not rely on his acceptance as resolving the motions.

[24] Offer no. 2 provided that it shall be open for acceptance on a “without costs” basis until 4 p.m. on the date of the offer. As stated earlier, the offer was received at 3:21 p.m. and, hence, this gave the respondent’s counsel only 39 minutes to obtain instructions to meet the 4 p.m. deadline, a timeframe which I find is unreasonable, as submitted by the respondent.

[25] The offer then provided that if it was accepted after 4 p.m., then the appellant would be seeking costs on a “full indemnity basis.”

[26] As it was unreasonable for the respondent to be able to review and accept the offer by 4 p.m., the reality is that any acceptance by the respondent of that offer would have been after 4 p.m. and would have imposed an obligation for “full indemnity” costs. However, an offer which contains a provision to pay costs makes it impossible to comply with condition 5 because the order that the offer is being compared to would not deal with the quantification of costs.

[27] In Hall v. Hall, 2019 ONSC 4198 (Ont. S.C.J.), I agreed with the analysis by Pazaratz J. in Chomos v. Hamilton, 2016 ONSC 6232 (Ont. S.C.J.), where Pazaratz J. stated the following at paras. 24 and 29:

24 An offer to settle substantive terms which also includes a predetermination of costs perverts the Rule 18(14) analysis, because the party ends up trying to claim credit for accurately predicting a costs determination a judge has not yet made.

29 Rule 18(14) contemplates full indemnity for costs where all of the terms of an offer have been obtained in the trial judgment. An offer which includes costs obligations not yet determined by the court, cannot satisfy the strict requirements of this section.

[28] Further, offer no. 2 adds some new conditions to the order of Bondy J. relating to access and that offer also provides that there shall be no costs, inter alia, of the motions before Bondy J. Those matters were not before me and not part of my endorsement. The addition of these provisions in the offer is another reason why the appellant cannot comply with condition 5 in r. 18(14). As it turned out, Bondy J. did deal with costs and ordered that the appellant pay to the respondent the sum of $1,000 all inclusive: see Vasilodimitrakis v. Homme, 2020 ONSC 2689 (Ont. S.C.J.).

[29] Regarding offer no. 4, that offer was received via email by the respondent’s counsel at 8:07 p.m. the day prior to the motion; accordingly, it is deemed received on the following day (being the day of the motion) pursuant to r. 6(11)(b), which provides as follows:

SERVICE BY FAX OR EMAIL, WHEN EFFECTIVE

6(11) Service of a document by fax or email is effective on,

(b) if the first page of the fax or the email message shows that the document was served after 4 p.m., the following day.

[30] This means that condition 1 has not been met.

[31] I do note that pursuant to O. Reg. 73/20 and O. Reg. 106/20, Schedule 2, made pursuant to the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, that any provisions contained, inter alia, in the Family Law Rules establishing a period of time during which a step in a proceeding must be taken are suspended for the period commencing March 16, 2020 to September 11, 2020. However, the suspension is subject to the discretion of the court: see O. Reg. 73/20, s. 2.

[32] In the present case, I would exercise my discretion not to suspend the operation of r. 6(11)(b). In my view, it is not reasonable to send an offer at 8:07 p.m. and then make a finding that condition 1 of r. 18(14) has been satisfied.

[33] Although offer no. 4 removed the condition requiring the child’s approval, and although the provisions for costs of the stay motion were simplified to provide for no costs with there being no deadline for acceptance, the offer continued to include amendments to Bondy J.’s order and continued to provide for no costs of the motions before Bondy J., thereby creating noncompliance with condition 5 of r. 18(14). Further, offer no. 4 added conditions which in effect prohibited the enforcement of the order if the child did not wish to attend for in-person access. No such order was made in dealing with the appellant’s stay motion.

[34] Pursuant to r. 18(15), the burden of proving compliance with condition 5 falls on the appellant, as she is the party claiming compliance with r. 18(14) and the appellant has not discharged that burden. In coming to this conclusion, I have considered that on the issue of make-up access, which was a minor issue, that the appellant’s offer was more generous than the order providing for make-up access.

[35] The respondent submits that r. 18(14) has not been engaged.

[36] Although the appellant’s offers do not meet the conditions in r. 18(14), the offers still can be considered under r. 18(16).

[37] Although none of the appellant’s offers are signed by the appellant, I am prepared to accept the appellant’s submissions that this irregularity should be overlooked given the situation regarding COVID-19 and the manner of service of documents. The respondent did not specifically object to the fact that the offers were not signed. Although the appellant’s correspondence regarding the offers was via email, that correspondence clearly set out what the offer to settle was, and the offer was capable of acceptance. Accordingly, in the circumstances, the non-signature of the offers by the appellant is not a factor.

DISCUSSION

[38] In relation to fixing costs, I must consider the reasonableness and proportionality of each of the factors set out in r. 24(12)(a) as it relates to the importance and complexity of the issues; r. 24(12)(b) allows for the consideration of other relevant matters.

[39] Regarding behaviour, on the motions before the court, I find that each party behaved reasonably. Regarding the time spent, fees and hourly rate, only the respondent’s counsel provided this information. The respondent’s counsel was called to the bar in 1981. His hourly rate of $350 is most reasonable.

[40] I do not view the time spent as unreasonably high, although I do concur with the appellant that the respondent should have agreed initially to adjourn the motion on April 9, rather than only agreeing to the adjournment during the course of the hearing of the motion. I also agree with the appellant that the time spent by the respondent to prepare an offer to settle that was never served and preparing material for his unsuccessful motion to adduce fresh evidence should not be considered.

[41] The respondent has structured his bill of costs referring to “partial indemnity” and “substantial indemnity.” Those concepts form no portion of the Family Law Rules.

[42] I canvassed this issue in Furtney Estate v. Furtney, 2014 ONSC 2439 (Ont. S.C.J.), at paras. 12-16:

12 The terms "partial indemnity costs" and "substantial indemnity costs" do not appear in the Family Law Rules. These are terms that appear in Rules of Civil Procedures: see for example, the definitions of these terms in r. 1.03(1).

13 In contrast the Family Law Rules throughout refer to "costs". That term is not defined. In addition, there is some reference to "full recovery" of costs (for example r. 18(14) and r. 24(8)). "Full recovery" is not defined.

14 In Sims-Howarth v. Bilcliffe, 2000 CarswellOnt 299 (Ont. S.C.J.), at paragraph 4, Aston J. makes clear that the court is to quantify costs under r. 24 according to the factors in r. 24(11). The two traditional scales of costs are no longer appropriate. The Family Law Rules, in relation to costs, differ significantly from the Rules of Civil Procedure. If a party is liable to pay costs, the court must fix the amount at "some figure between a nominal sum and full recovery".

15 This discussion by Aston J. in Sims-Howarth was approved by the Court of Appeal for Ontario stating that the Family Law Rules demand flexibility in examining the list of factors in sub-rule 24(11) without any assumptions about categories of costs: M. (C.A.) v. M. (D.) (2003), 2003 18880 (ON CA), 176 O.A.C. 201 (Ont. C.A.) at paragraph 42.

16 I apply the principles discussed in Sims-Howarth in quantifying costs.

[43] Although the cases as discussed in Furtney Estate, supra, refer to r. 24(11), the principles discussed are not affected by the fact that the factors formerly in r. 24(11) have been reworded somewhat and are contained now in r. 24(12).

[44] Further, the Court of Appeal for Ontario has stated, again, that under the Family Law Rules that judges are not constrained to the normal scales of costs found in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 since no scales of costs are mentioned in the Family Law Rules: Beaver v. Hill, 2018 ONCA 840 (Ont. C.A.), at para. 9.

[45] In considering the offers to settle, I do agree with the appellant that the two “offers” made by the respondent were more in the nature of suggestions or comments regarding the appellant’s offers and that they were incapable of acceptance.

[46] However, I can still consider the respondent’s offers under r. 24(12)(a)(iii) even if the requirements of r. 18 have not been met.

[47] In my view, both parties were acting reasonably in their approach to resolve this matter. They each made genuine efforts, to deal with a somewhat complex case, in their settlement proposals. The appellant, in particular, provided minutes of settlement designed to resolve all outstanding litigation.

[48] In reviewing the respondent’s emails, it becomes apparent that the parties were, at times, reasonably close in resolving all issues.

[49] However, the parties at the end were unable to bridge the gap, notwithstanding that the gap was not very large. This resulted in both parties losing sight of proportionality and, rather than settling the matter, both parties elected to “roll the dice” and proceed to file material and facta and argue the motions.

[50] In fixing costs, the principle of reasonableness requires the judge, rather than engaging in a purely mathematical exercise, to reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party as opposed to any measure of the actual costs of the successful party: Davies v. Clarington (Municipality), 2009 ONCA 722, 2009 CarswellOnt 6185 (Ont. C.A.), at para. 52.

[51] In the present case, the respondent was required to respond to a motion to stay the order of Bondy J. that he had just obtained.

[52] The respondent was successful. The motion for a stay was dismissed and the respondent is entitled presumptively to costs. Although there was some divided success, given the dismissal of the respondent’s motion to adduce fresh evidence, that motion was a minor matter.

[53] Although the order permitted the appellant to have the dismissal of the motion for stay reviewed by the panel, should leave to appeal be granted, I do not view that provision as having any material effect on the fact that the respondent was successful.

[54] The appellant shall pay to the respondent his costs of the motions fixed in the amount of $5,000 inclusive of HST and disbursements, payable within 30 days.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: July 21, 2020