CITATION: Ernikos v. Ernikos, 2016 ONSC 6217

COURT FILE NO.: FS-13-77617

DATE: 20161011

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Katherine Joanne Ernikos

Self-Represented

Applicant

• and -

Anastasios Ernikos and Antonia Ernikos

Jose Bento Rodrigues, for the Respondent Anastasios Ernikos;

Howard Reininger, for the Respondent Antonia Ernikos

Respondents

COSTS ENDORSEMENT

M. J. Donohue, J

Submissions

1This family law application was tried and my decision was released August 17, 2016. If the parties were unable to settle costs, I invited the respondents to file written submissions within 15 days of my decision and the applicant to reply within 15 days thereafter.

2The respondent, Antonia Ernikos, served submissions within two days. No submissions were served by the respondent, Anastasios Ernikos or the applicant, Katherine Ernikos.

Issues

3The trial proceeded on the issue of whether Mr. Ernikos had fulfilled his obligations under a prior separation agreement, which had resolved the parties’ equalization. As part of the agreement, Katherine Ernikos transferred her interest in the matrimonial home to Mr. Ernikos.

4After this agreement, the parties reconciled. Some years later, Mr. Anastasios Ernikos transferred the property that had been the matrimonial home to his mother, Antonia Ernikos.

5Katherine Ernikos’ claim as against her mother-in-law, Antonia Ernikos, was that Antonia Ernikos held the couple’s prior matrimonial home in trust for them by way of a resulting, implied or constructive trust.

6This claim failed. Antonia Ernikos was successful in having the application dismissed as against her.

7She seeks substantial indemnity costs of $47,470.89 or partial indemnity costs of $32,139.64.

Scale of Costs Recovery

8Counsel for Antonia Ernikos relied on the Ontario Court of Appeal decision of Berta v. Berta, 2015 ONCA 918 preferring that costs recovery in family matters generally approach full recovery so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result.

9It is correct that a successful party is presumptively entitled to costs. The costs are subject to the factors listed in Rule 24(1); the directions set out under Rule 24(4) regarding unreasonable conduct; Rule 25(8) regarding bad faith; Rule 18(14) regarding offers to settle; and the reasonableness of the costs sought by the successful party.

Rule 24(11) Factors

10(a) importance, complexity or difficulty of the issues;

11Throughout the proceeding, the claim as against Antonia Ernikos was peripheral to the main claim as against Mr. Ernikos. Counsel for Antonia Ernikos was in essence a second chair assisting Mr. Ernikos’ counsel.

12Those issues were not complex or difficult.

13(b)the reasonableness of a party’s behaviour;

14Antonia Ernikos made no submissions on this point.

15I considered Katherine Ernikos, the applicant, although self-represented, to be polite and organized but baffled by the legal issues she was trying to handle. She made efforts to simplify and settle issues as the matter proceeded.

16Although unsuccessful, I do not find that Katherine Ernikos was unreasonable.

17(c)the lawyer’s rates

18Counsel is a 1975 call and his full indemnity rate is $375 an hour. I find this to be appropriate.

19(d)time properly spent;

20Antonia Ernikos’ counsel provided precise and detailed docketed time in his bill of costs.

21(e)expenses, properly paid or payable;

22Three costs orders were outstanding; MacKenzie, J of October 28, 2014; Bielby, J of March 10, 2015 and Emery, J of July 28, 2015.

23These amounted to $2,477.14 and are to be added to the costs I find to be payable.

24(f)any other relevant matter;

25I do not find any bad faith by the applicant nor is any alleged.

26Antonia Ernikos does not produce nor rely on any offers to settle that were made.

27Consideration must be given to whether the costs requested were proportional to the importance, complexity, and difficulty of the issues argued.

28A further relevant consideration is the applicant’s ability to pay, particularly when she is the custodial parent for three children. I note that Katherine Ernikos was self-represented and did not make any submissions on costs. Nonetheless there was evidence that Ms. Ernikos was not employed outside the home and is the custodial parent of three children. There was sufficient evidence that she is a person of very limited means.

29On consideration of all the factors above I find that a partial indemnity scale of recovery is appropriate in this case, rather than full recovery.

Quantum of Costs

30As noted above there are prior costs orders of $2,477.14.

31This matter spanned three years with several conferences, a questioning of the applicant and ultimately three days of trial.

32In my discretion, I consider a total of $30,000, inclusive of the prior orders, HST and disbursements, to be fair in the circumstances.

Order

33The applicant, Katherine Ernikos is ordered to pay costs of $30,000 to the respondent, Antonia Ernikos.

M. J. Donohue, J