SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-12-377644
DATE: 20121119

RE: Marisa Maltezos
Applicant

and

Konstantin’s Maltezos
also known as Gus Maltezos
Respondent

BEFORE: Kruzick, J.

COUNSEL:
Vincenzo Ruso, for the Applicant
Louise A. Scrivener, for the Respondent

E N D O R S E M E N T

Background

[ 1 ] On August 30, 2012, on a motion before me, the Respondent was largely the successful party and now seeks an award of costs.

[ 2 ] Although invited to do so, counsel were not able to resolve the issue of costs and made submissions on the issue.

[ 3 ] The Respondent seeks to be fully indemnified in the amount of $13,171.50 composed of $8,880.00 for fees, $2,778.60 disbursements with HST of $1,512.90, alternatively $10,161.58 in partial indemnity. The submission of the Applicant is that if an award is made, it should be on a partial indemnity basis.

[ 4 ] It is argued that the timing of the motion was such that the Respondent was forced to defend the motion without having the benefit of her counsel to appear on the return date.

[ 5 ] The issues before me concerned the children’s school and afterschool daycare and were of some urgency given the commencement of the school year. The order made, favoured the Respondent’s position. The Applicant had some success on this motion as I also ordered the listing for sale of the former matrimonial home. However, as pointed out by the Respondent, his offer to settle, which was open to the commencement of the motion, consented to the sale of the former matrimonial home.

[ 6 ] The Applicant argues that notwithstanding the Respondent’s success on the motion he earns a salary nearly three times more than the Applicant, so that he is able to fund the ongoing litigation and where she is not.

Analysis

[ 7 ] The general principles of costs are established by s.131 of the Courts of Justice Act ,

131. (1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. R.S.O. 1990, c. C.43, s. 131 (1) .

[ 8 ] In family law, the general principles are set out in Rule 24 of the Family Law Rules, O.Reg. 114/99 with the standard that a successful party is entitled to costs barring unreasonable behaviour or other circumstances which would result in disentitlement to a costs award.

[ 9 ] The issue of costs in family law matters was reviewed thoroughly by the Ontario Court of Appeal in the decision of Andrews v. Andrews , 1980 1913 (ON CA) , [1980] 32 O.R. (2d) 29, Ont. S.C. The matter before the Court was an appeal from an order for costs made in divorce proceedings. The Court of Appeal referred to Rule 810, [now by analogy Rule 24 ]. In allowing the appeal, Houlden J.A. delivering the judgment of the court at pages 35 and 36 stated, in part:

In exercising the discretion conferred by Rule 810, we believe the following factors will be relevant (the list is not intended to be exhaustive):

(a) the success of the parties: see Kalesky v. Kalesky (1974), 1974 792 (ON CA) , 5 O.R. (2d) 546.

In matrimonial cases success is frequently divided; hence the success of the parties is not as important as in ordinary civil litigation;

(b) the conduct of the parties prior to the commencement of the litigation …;the conduct of the parties during litigation …;

(c) the income and assets of each party, the relative means of each party to bear his or her own costs, and the effect of the award on the ability of a party to meet the obligations imposed on him or her by the judgment: see Dill v. Dill (1972), 9 R.F.I. 119; Weir v. Weir , supra .

[ 10 ] Rule 24 has enshrined these costs principles. I am also bound to consider complexity of the issues, the lawyer’s hourly rate, time properly spent, disbursements and any other relevant matter. Additionally, Rule 20(14) provides for offers to settle.

[ 11 ] This motion was, I find, necessary. The Respondent made an offer dated August 21, 2012 which, I find could have resolved the issues before me. It was not accepted by the Applicant. I agree with the submission of counsel for the Applicant that the consequences of a costs award, are in place to discourage unnecessary and wasteful litigation. For people of modest means, the reasonableness of their position should be assessed very carefully. Unfortunately, that was not the case here. I do however bear in mind the financial circumstances of the parties. Furthermore, I am concerned that a high, or what may be seen to be a punitive costs order may discourage the parties to settle the remaining issues between them.

Conclusion

[ 12 ] Bearing in mind the principles and conclusions set out above, I am satisfied that there should be an award of costs to the Respondent payable by the Applicant. Accordingly, after a review of the bills of costs as filed, costs are fixed in the amount of $ 6,000.00 and payable by the Applicant to the Respondent.

KRUZICK J.

DATE: November 19, 2012