Court File and Parties

Court File No.: FS-10-1530-00
Date: 2012-12-27
Superior Court of Justice – Ontario

Re: Elizabeth Xidis, Applicant

AND:

Michael Xidis, Respondent

Before: Ricchetti, J.

Counsel:
S. Codas, Counsel, for the Applicant

D. Aujla, Counsel, for the Respodent

Heard: Chambers

Endorsement

[ 1 ] Both parties filed written submissions on costs.

THE POSITION OF THE PARTIES

[ 2 ] The Mother seeks costs of $15,539 (all inclusive) on a full recovery basis. The Mother states she was successful on the motion and that the order exceeded her Offer to Settle dated September 4, 2012.

[ 3 ] The Father does not dispute that the Mother is entitled to costs but submits that the amount claimed is excessive and exaggerated. The Father points to other cases ( Oliveira v. Oliveira, 2008 36722 and Shamli v. Shamli , 2004 45956 ) as similar cases where the costs awarded were much less ($1,500 and $3,000 respectively).

[ 4 ] The Father submits that the Offer to Settle should not be considered because the Father at the time was not represented and he did not have sufficient time to review it with a lawyer before the cost consequences began to apply (4 days after it was delivered). It is important to note, there is no suggestion the Father wanted to or sought to comply with the Offer to Settle of September 4, 2012 at any time prior to the date of September 17, 2012 set out in the Offer to Settle or even the hearing of the motion on November 29, 2012.

[ 5 ] It is important to review the terms of the Offer to Settle. Essentially, the Mother offered to settle the motion to strike the Father’s pleadings without cost consequences if the Father produced all the financial documentation he had agreed to and was ordered to produce. If he did so within 4 days, the motion would be resolved and there would be no costs consequences of the motion. After the 4 days, the Father could still accept the Offer to Settle by producing the documentation prior to September 17, 2012 and the Mother’s motion would be settled except for the issue of costs of the motion.

THE ANALYSIS

[ 6 ] I agree the Mother exceeded her Offer to Settle and should be entitled to substantial indemnity costs. The Mother was prepared to abandon the motion, and for a time without costs, if only the Father would produce what he was obliged to produce. The Father refused. The Father had every opportunity to avoid striking his pleadings and chose not to comply with the Offer to Settle. Instead, he came to the motion 2 ½ months after the Offer to Settle had been made, without making production and in essence asked for one more chance.

[ 7 ] Quite frankly, the Mother’s position in the Offer to Settle was extremely reasonable in the circumstances.

[ 8 ] This is one of those rare cases where substantial indemnity costs are warranted for a number of reasons:

• It is necessary to discourage and sanction the Father’s behaviour in this litigation. I will not repeat what I set out in my endorsement, but it is clear that considerable costs and delay in this matter are directly and solely attributable to the Father’s conduct. In particular, I note the Father’s pattern of promises, agree to orders and then not comply. The Father’s conduct deserves sanctioning;

• The financial disclosure by the Father is critical to the just determination of the issues before this court. This court is mandated to deal with these cases efficiently and justly. It cannot do so when one party refuses to comply with the rules of litigation or even court orders. The Father’s failure can only be described as egregious; and

• The Mother’s Offer to Settle was exceeded by striking the Father’s pleadings;

[ 9 ] Let me now turn to the quantum to be recovered.

[ 10 ] The Father takes no specific issue with any of the amounts in the Mother’s Bill of Costs. Instead, the allegation is simply that it is excessive.

[ 11 ] It is relevant to a determination of the quantum of costs to be awarded, costs awarded in similar cases. In both Oliveira and Shamli , costs were not ordered on a substantial indemnity basis and it is not known what was claimed or the time spent on the motion. It is not known whether there was an Offer to Settle. Those cases provide little assistance.

[ 12 ] I have reviewed the Bill of Costs. I have considered the complexity of the issues (striking pleadings in a family law proceeding), the importance of the issues to the Mother (support), the senior family lawyer (20 years at the bar) and junior lawyer’s rates, the time spent on the matter including the motion materials, the Offer to Settle, research, preparation of the factum, argument. The only issues I can find in the Bill of Costs is the travel time and the number of hours docketed by the junior lawyer. No doubt the junior lawyer assisting in keeping Mr. Codas’ time down and, therefore, should be allowed in part. As for the travel time, I am not persuaded to allow this on a full hourly rate.

[ 13 ] Therefore, the Mother shall recover the amount of $10,000 (all inclusive) for the motion payable by the Father forthwith.

Ricchetti, J.

Date: December 27, 2012

COURT FILE NO.: FS-10-1530-00

DATE: 2012-12-27

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Elizabeth Xidis Applicant (Wife) -and- Michael Xidis Respondent (Husband) Endorsement Ricchetti J.

Released: December 27, 2012