Court File and Parties

COURT FILE NO.: FC-10-33-00 DATE: 20160429 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHRISTINA KALKANIS, Applicant AND: MICHAEL KALKANIS and RICK KALKANIS, Respondents

BEFORE: THE HON. MADAM JUSTICE M.E. VALLEE

COUNSEL: Ronald Zaldin, for the Applicant Walter Kim, for the Public Guardian and Trustee on behalf of Michael Kalkanis Samil Chagpar, for the respondent Rick Kalkanis

HEARD: By written submissions

Costs Endorsement

[1] On May 25, 2015, the applicant wife and the respondent husband, Christina and Michael Kalkanis, settled most of the issues in this application for the sum of $185,000. On September 23, the court determined that the costs payable by the husband were $142,500.

[2] Payment was not forthcoming. Between October 1 and 23, the wife’s counsel, Mr. Zaldin, wrote three times to the husband’s counsel, Mr. Kim, asking when the money would be paid. On October 23, Mr. Kim replied and stated, “I can assure you that I have repeatedly reminded him that the funds are due and that interest is accruing. Unfortunately, he has yet to provide me with date for refinancing.”

[3] October 28, Mr. Kalkanis himself wrote to Mr. Zaldin, Mr. Kim and the court, stating “I need more time to complete this transaction…[due to] ongoing health issues, adjustment to medications…” On the same date, Mr. Kim stated that Mr. Kalkanis had begun to arrange financing to pay the amounts owing.

[4] Mr. Zaldin followed up on October 29 and November 24 at which time he stated that no further delay would be tolerated and that the wife would bring a motion to appoint an interim receiver to sell a property owned jointly by the husband and his brother, Rick Kalkanis. On November 26, Mr. Zaldin wrote to Mr. Kim and stated that he would not postpone his motion because neither Mr. Kim nor the husband had provided details of any concrete financing efforts. Mr. Kim advised Mr. Zaldin that he was available to attend a motion on various dates including January 7, 2016.

[5] On December 11, Mr. Zaldin served the notice of motion for appointment of an interim receiver returnable on January 7. Seven days later, Mr. Zaldin served the notice of motion and supporting affidavit on Mr. Kim with a copy to Rick Kalkanis.

[6] Rick Kalkanis retained counsel in short order. On December 23, Mr. Chagpar, a solicitor, wrote to Mr. Zaldin stating that he had just been retained by Rick Kalkanis. He requested an adjournment to February 25, March 3 or March 31 with responding materials to be filed in the interim. The wife did not agree to adjourn the motion.

[7] On January 7, the motion for appointment of an interim receiver was before this court. Mr. Chagpar obviously could not attend. Mr. Kim advised that the husband had just been approved for financing the previous day. There was no evidence that this had been communicated to the wife previously. Mr. Zaldin requested a four week adjournment to ensure that the financing proceeded. I granted the adjournment.

[8] Payment has now been made. I must now determine the costs of this motion which did not proceed.

Analysis

[9] Rule 24 of the Family Law Rules sets out the factors that the court shall consider in setting an amount of costs including the unreasonableness of a party’s behaviour.

[10] The applicant wife was justified in bringing the motion because the husband did not respond to inquiries as to when the funds would be paid. Further, there was no confirmation until January 5 that the husband had submitted all of the documents required for financing. Nevertheless, the motion was served on Rick Kalkanis only three weeks prior to the motion date. He retained counsel within three business days, by December 23. Given the fact that Christmas holidays followed, it was unreasonable for the wife to expect that any counsel retained by Rick Kalkanis would be available to attend a motion on January 7 and be ready to argue it.

[11] The court likely would not have proceeded with the motion in the absence of counsel for Rick Kalkanis. The wife should have agreed to adjourn the motion to one of the dates proposed by Mr. Chagpar. The delay would have been only a few weeks. In the meantime, Mr. Kim would have advised Mr. Zaldin that the husband’s financing had been approved on January 6. No court attendance would then have been necessary. The settlement funds and costs were paid to the wife on February 12.

[12] In the circumstances, the wife is entitled to costs except for the costs of her counsel’s attendance on the motion because she ought to have agreed to the adjournment request. Mr. Zaldin’s stated hourly rate is $500. He requests costs of $20,509.50 for fees on a full recovery basis or $16,407.60 on a partial recovery basis. His bill of costs shows that he spent 36.3 hours on this matter. Disbursements claimed total $1,813.25 including HST.

[13] I find that the time spent on this matter was quite excessive, particularly when the proposed interim receiver was paid $900.55 plus HST as a disbursement to prepare the proposed order. In addition, another lawyer was paid $180 plus HST for legal research.

[14] There is no basis for awarding full recovery costs. Having considered the factors in the Family Law Rules and the fact that attendance on the motion was not necessary I conclude that a reasonable amount for the respondent to pay to the applicant for costs is $8,475 ($7,500 plus HST $975).

[15] Regarding disbursements, I note that the invoices for some of them include HST; however, in the wife’s calculation of the disbursement total, a further amount for HST is added. This is not the correct method to use.

[16] I note that $300 is claimed for paying a clerk to file court documents; however, there is no receipt for this amount. It is not allowed. The amount of $75 is estimated for photocopying. At $0.50 per page, this equates to 150 copies which is unrealistic. I allow $38 for photocopying. The amount of $10 is estimated for faxes. Fax charges are minimal. I allow $5 for this item. The total amount of disbursements is $1,269.61 ($1,123.55 plus HST $146.06).

[17] The total amount payable by the respondent to the applicant is $9,744.61 which shall be paid in 30 days.

VALLEE J. Date: April 29, 2016