Court File and Parties
Court File No.: FS-09-00352671 Date: 2018-05-31 Superior Court of Justice - Ontario
Re: Theodora Georgia Lafazanidis, Applicant And: Konstantinos Lafazanidis, Respondent
Before: Kiteley J.
Counsel: Sage Harvey, for the Applicant Jacqueline Mills, for the Respondent
Heard: April 19, 2018
Endorsement As To Costs
1On March 15, 2018 I gave reasons for decision [ONSC 1851] with respect to the Respondent’s motion for an order that the Applicant be found in contempt of paragraphs 2(ii) and (iii) of the order dated May 29, 2014. Amongst other things I held as follows:
As indicated earlier, to make a finding of contempt, I must be satisfied beyond a reasonable doubt. I am satisfied on a balance of probabilities that the Applicant mother has been and continues to be in breach of paragraph 2(ii) of the order. I am not satisfied beyond a reasonable doubt.
Having found that the order is clear and unequivocal and that the Applicant mother deliberately and willfully breached the orders means that I must determine a remedy, even if I am not satisfied beyond a reasonable doubt as to her contempt of the order. The conduct of the mother is very serious. Steps must be taken to re-establish the relationship between Demetri and his father immediately.
2I reserved the issue of costs. On April 19, 2018 I heard submissions from counsel on costs.
3Counsel for the Respondent asked for full indemnity costs in the amount of $27,030 and disbursements for Brayden Supervision Services Inc. in the amount of $429. In addition, she asked that the costs incurred by the Respondent in cancelling the trip to Ireland as a result of what had occurred should be paid by the Applicant in the amount of $6,664 for a total of $34,123.
4Alternatively counsel asked for partial indemnity costs in the amount of $22,182 plus $429 for disbursements and $6664 for the cancelled trip for a total of $29,275.
5Counsel for the Applicant took the position that each party should be responsible for their own costs or that a modest award of costs be made not exceeding $2,000 payable within 30 days. He provided a costs outline at a much reduced rate to reflect his 2013 year of call to the bar that totalled $7,532.44 plus HST of $979.22 for a total of $8,511.66.
6As I indicated on April 19, 2018, I intended to order the Applicant to pay some amount of costs and I reserved to consider the amount.
7The Respondent is entitled to costs. He brought an important motion with serious consequences that necessitated multiple attendances. I specifically distinguished between proof beyond a reasonable doubt that is required for a finding of contempt and proof on a balance of probabilities. I did not find that the third branch of the test for a finding of contempt had been established beyond a reasonable doubt. But having found that the order was clear and unequivocal and that the Applicant had deliberately and willfully breached the orders meant that a remedy was required. He was not successful on achieving a finding of contempt but he was successful in that I made serious findings against the Applicant.
8Counsel for the Respondent prepared a comprehensive record and made oral submissions under pressure because of the serious disruption in the parent/child relationship that had to be addressed immediately. It was reasonable for him to retain a senior experienced family law lawyer. Had I found the third branch of the test had been met beyond a reasonable doubt, I would have accepted counsel’s submission as to full indemnity costs and the Brayden invoice. Having not made that third finding beyond a reasonable doubt, I conclude that recovery on a partial indemnity basis is the maximum amount that I should consider.
9As indicated above, there is considerable difference between the hourly rates applied by counsel. In my view, it would be within the contemplation of the parties that the amount that the Applicant should pay would be an amount that takes into account that difference. I conclude that it would be fair given the issues involved and the outcome that the Applicant should be required to pay an award of costs that represents an amount that is approximately mid-way between the cost of legal services for each of them. On that basis I will order that the Applicant pay $15,000 including HST plus $429.
10I am not prepared to make an order requiring the Applicant to pay the costs of the cancelled trip to Ireland. Even though the circumstances created a crisis with respect to the imminent departure date, I am not satisfied that the Respondent had no alternatives, for example, whether he could have cancelled that trip but taken a credit on a future trip.
11Counsel for the Applicant took the position that if the costs awarded exceeded the modest amount he suggested, that his client would need time to pay. He provided a form 13 financial statement along with the Applicant’s 2017 income tax return, 2016 notice of assessment and the record of employment that indicates that she was laid off from her customer service representative job in August 2016. In 2016 her line 150 income including wages, EI and spousal support was $50,458. In 2017 her income including EI, spousal support and interest of less than $100 was $32,359. In her form 13, she lists her current income as spousal support of $1640, child tax benefits of $192 and self-employment as an artist at $225 for a total of $2057 per month or $24,685 per year. Her expenses are almost double that amount or $44,356. As a result of the 9 day trial in 2014, [2014 ONSC 3287] the Respondent was ordered to pay an equalization payment of $308,068 and she received 50% of the proceeds of sale of the jointly owned property in Utah. The Applicant has liquid assets of almost $200,000 and a debt against a line of credit of $18,000. Based on the difference between her current income and expenses and the reduction in capital, I assume that the Applicant routinely relies on her capital. It would be reasonable to expect her to use her capital both for her own legal expenses and to pay the costs of the Respondent.
12As indicated in the reasons for decision dated March 15, the evidence from the Respondent was that the conflict seemed to have arisen because his lawyer had written to the Applicant indicating that the Respondent wanted to vary the amount of spousal support he had been paying for 8 years. I do not want this order to become a source of conflict and for that reason, I will prohibit both parties from discussing the issue of costs with the child.
ORDER TO GO AS FOLLOWS:
13The Applicant shall pay to the Respondent costs in the amount of $15,000 inclusive of HST and $429 for disbursements no later than July 15, 2018.
14Neither the Applicant nor the Respondent shall communicate to the child, directly or indirectly, the fact that the Applicant has been ordered to pay costs and any details of this endorsement and order.
Kiteley J.
Date: May 31, 2018