ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 05-FD-305300FIS
Date: 20130130

B E T W E E N:

SETSUKO STEFANOU

Phyllis Brodkin, for the Applicant

Applicant

• and -

GEORGE STEFANOU

George Corsianos, for the Respondent

Respondent

HEARD: in writing

MESBUR J

ENDORSEMENT ON COSTS:

[1] In December of last year I released my decision in this case. I found Ms. Stefanou entitled to a net payment of $63,284.18, plus $50,000 representing her interest in the parties’ jointly owned yacht, once she conveyed it to Mr. Stefanou. I dismissed her claim for spousal support.

[2] Ms. Stefanou now seeks costs of the action on a full recovery basis. She puts those costs at a figure $123,710.76 all inclusive[^1], plus the costs of her expert of $US 38,414.88.

[3] Mr. Stefanou takes the position that success was divided, and there should be no order as to costs. He also takes the position Ms. Stefanou behaved unreasonably, and should be deprived of costs on that account. Ms. Stefanou takes the position it is Mr. Stefanou who behaved unreasonably, and this should entitle her to full recovery costs.

[4] I disagree with both parties. In my view, there is no reason for an order for full recovery costs, nor is there any reason to deprive Ms. Stefanou of costs.

[5] Each party took firm positions. The issue of jurisdiction was hotly contested, and went all the way to the Court of Appeal. The bill of costs Ms. Stefanou’s counsel presents includes nothing on account of those preliminary issues.

[6] Mr. Stefanou’s lawyer makes reference to unreasonable positions Ms. Stefanou took in 2006 and 2007. They are irrelevant to the costs claimed here. Mr. Stefanou also makes reference to Ms. Stefanou’s position on motions for payment out of frozen funds. Again, costs would have been addressed at those motions themselves. If there was unreasonable behaviour on Ms. Stefanou’s part, I can only assume submissions were made on the motions that Ms. Stefanou should pay costs. Nothing is claimed here on account of these motions.

[7] Mr. Stefanou’s lawyer raises again issues about the initial freezing order, suggesting that Ms. Stefanou acted unreasonably in that regard. Again, costs arising from that initial ex parte order should have been dealt with long ago. If there was unreasonable behaviour on Ms. Stefanou’s part, I can only assume the court has long ago dealt with it with costs. I do not see that issue as reflecting “unreasonable behaviour” for the period covered by the bill of costs, namely June 2009 to the present.

[8] Reasonableness is also measured against parties’ settlement offers, and how they compare with the outcome at trial. Neither party made any settlement offer that “beat” the result at trial.[^2] Ms. Stefanou was unsuccessful on the issue of spousal support. While she suggests that this claim was made “in the alternative”, the pleadings (and her submissions at trial) do not bear this out.

[9] That said, on the issue of property, which consumed the bulk of the time at trial, Ms. Stefanou enjoyed success. In my view she is entitled to costs, but at less than full recovery. Her bill of costs must also be reduced in light of her lack of success on the spousal support issue.

[10] On reviewing the bill of costs, I see time charges for items like “researching issue of constitutional challenge of s. 15 of the Family Law Act.” This issue was never pursued. I do not see those charges are appropriate for Mr. Stefanou to pay. The bill of costs must be reduced on that account by $2,182.50.

[11] Similarly, items in the bill of costs that relate to the spousal support issue must also be deducted. These come to $2,180. The overall fees must therefore be reduced by $4,362, bringing them down to $100,338 (rounded).

[12] Mr. Stefanou’s lawyer does not raise any issues about Ms. Stefanou’s lawyer’s dockets or billing rate. Nor do I. It seems to me, however, that on a partial indemnity basis, about 75% of the amount claimed would be appropriate. I would discount that further to recognize that Ms. Stefanou was unsuccessful on the issue of spousal support at trial.

[13] In the result, I fix Ms. Stefanou’s costs of the action at $60,000 for fees, and $5,594.10 for disbursements, apart from the expert’s fees. These amounts will be plus all applicable taxes.

[14] This leaves the issue of Ms. Stefanou’s expert. She is entitled to some compensation for the costs she incurred in retaining him. Having said that, I find his fees excessive, particularly when compared with Mr. Stefanou’s expert. Her fees were € 20,000, compared with $US 38,400 for Ms. Stefanou’s expert. In Canadian funds Mr. Stefanou’s expert’s fees are about $27,000 compared with about $38,000 for Ms. Stefanou’s expert. Although Ms. Stefanou’s expert charged at an hourly rate of $275/hour, which appears more than reasonable, it still seems to me that the total of the bill is disproportionately high in terms of what Mr. Stefanou should be expected to pay toward that cost. Given the overriding requirement of proportionality when addressing the issue of costs, I find it is reasonable to expect Mr. Stefanou to contribute the sum of $US 30,000 to that disbursement.

[15] In the result, Mr. Stefanou will pay Ms. Stefanou’s costs of the action fixed as follows:

a) $60,000 for fees, plus applicable taxes;

b) $5,594 for regular disbursements, plus applicable taxes; and

c) $US 30,000 toward the cost of Ms. Stefanou’s expert.

MESBUR J

Released: 20130130

[^1]: Made up of $104,700.97 for fees, disbursements apart from the expert of $5,594.10 all plus applicable taxes.

[^2]: Mr. Stefanou’s offer in 2011 presupposed that he was the owner of all the parties’ assets, both joint and sole, and that Ms. Stefanou should receive only an additional $205,146. His offers made in 2006, while somewhat closer to the result at trial, were made to expire at the commencement of the first trial, and are therefore of little relevance. Ms. Stefanou’s offer of August 10, 2011 provided for a global payment of $300,000 to satisfy all outstanding claims. It is also far off the result at trial.