Court File and Parties
COURT FILE NO.: FS-17-90027-00 DATE: 2019 04 03 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SHAWN MORRIS, Applicant - and - TINA NICOLAIDIS, Respondent
BEFORE: EMERY J.
COUNSEL: Self-Represented Applicant Heather Hansen for the Respondent
HEARD: In writing
Endorsement on Costs
[1] In my Reasons for Decision released on March 4, 2019, I dismissed parts of four motions where each party was seeking final relief in this family law case. In those reasons, I made a temporary order that varied the consent order made by Justice McSweeney on September 13, 2018 to provide the parties and their children with a fixed schedule that met the principles agreed upon.
[2] At the end of my reasons, I encouraged the parties to resolve the issue of costs between them, and invited them to file written submissions according to a concise timetable if they could not. I have now received written submissions from each party. Ms. Nicolaidis seeks her costs on a partial indemnity basis, fixed in the amount of $20,000. She claims those costs as she considers herself to be the more successful party on all four motions. Mr. Morris opposes those costs, and submits that this court should reserve the costs of the motions to the trial judge.
[3] Before I consider the merits of each position, it is important to recognize two overarching principles. The first is that the law of costs involves a series of objectives that are designed to encourage, modify, or control the behaviour of people litigating before the courts. These objectives were confirmed by the Court of Appeal in Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 as follows:
(1) To indemnify successful litigants for the cost of litigation; (2) To encourage settlements; and (3) To discourage and to sanction inappropriate behaviour by litigants.
[4] The second principle relates to the amount of those costs, if awarded. In Boucher v. Public Accountants Council of Ontario, [2004] O.J. No. 2634, the Court of Appeal stated that the court must assess costs in an amount that would be fair and reasonable to the parties. In particular, the courts are directed to ensure that the amount awarded for costs is fair and reasonable to the party who is to pay them.
[5] I must first determine which of the parties, if either of them, is entitled to costs under the circumstances. Family Law Rule 24(1) contains a presumption that the successful party in any step in a family law case is entitled to costs. Where there has been a lack of success on the part of both parties but one of them has achieved limited success, it is often necessary to refer to the Offers to Settle that have been served. The Offers to Settle are often signposts for the court to read as a guide for awarding costs. If a party was as successful as her or his Offer to Settle, that person may be entitled to costs under the presumption contained in Family Law Rule 24(1).
[6] Ms. Nicolaidis served an Offer to Settle dated December 19, 2018 that met the technical requirements of Family Law Rule 18. This is the Offer to Settle that Ms. Nicolaidis asks this court to use as the measure of her success. I do not consider this Offer to Settle an appropriate basis for Ms. Nicolaidis to claim success on her motion, or her success when opposing the motions brought by Mr. Morris, for the following reasons.
[7] While it is true that Ms. Nicolaidis obtained a temporary order that defined the fixed access Mr. Morris may exercise in accordance with Schedule A to that Offer to Settle, she did not succeed in obtaining orders for Mr. Morris to pay retroactive child support. Nor did she obtain an order allowing her to pay him an equalization payment subject to various set offs on a final basis. I cannot split the success Ms. Nicolaidis achieved on the access issue from the other relief she offered to settle, as her Offer to Settle does not contain a provision that the terms were severable. In an all or nothing Offer to Settle, the result achieved on motion must match or exceed all parts of the Offer to Settle or none of the Offer to Settle is applicable in its entirety for the purpose of seeking costs under Family Law Rules 18(14) or 24.
[8] Mr. Morris grounds his position on two Offers to Settle that he served on Ms. Nicolaidis before the motions were adjudicated. The first Offer to Settle dated February 15, 2018 seeks to resolve issues of custody and equalization on a final basis, and the issue of parenting time on temporary basis. Mr. Morris did not achieve any success on his motion for the court to award joint custody on a final basis. Although he was successful in rebuffing the motion Ms. Nicolaidis brought for a pre-emptive equalization payment, Mr. Morris was actually asking for inconsistent orders. He asked for an equalization order of his own, while at the same time seeking a temporary order to obtain full disclosure on all property and assets owned separately and jointly from Ms. Nicolaidis. I do recognize, however, that although Mr. Morris was unsuccessful on own motion for equalization, the related submissions were primarily focused on the disclosure he required Ms. Nicolaidis to provide for his equalization claim.
[9] I do not consider the Offer to Settle dated February 15, 2018 to apply to the results of this motion because many of the parts that offer were not adjudicated on a final basis. That offer to settle remains open according to its terms, or unless revoked before trial.
[10] I also do not consider the second offer to settle dated December 22, 2018 that Mr. Morris made specifically in reference to these motions to be applicable on costs. He did not achieve success on any of the terms sought in that Offer to Settle on the motions heard by me on December 31, 2018.
[11] It seems to me that I have three options with respect to the costs of these motions, after considering the submissions of the parties and the mixed results they achieved. The first option is to decide that success was divided, and to apply Family Law Rule 24(6) and award no costs at all. I do not think that would be fair to either party. In particular, it would not be fair to Ms. Nicolaidis, who has incurred the cost of counsel for these motions, and who obtained successful results on the child related issues. The second option, which preserves the ability of Ms. Nicolaidis to recover her costs if she prevails at trial, and the option consistent with the submissions of Mr. Morris on costs, would be to reserve the costs of these motions to the trial judge.
[12] Family Law Rule 24(10) specifically states that the court shall promptly decide costs at each step of a proceeding. I am in the best position to make that determination here. This direction leads me to the third option, and that is to award costs in a manner allocated to the relative success achieved by the parties under FLR 24(6) and (12) when read together.
[13] I am of the view that the costs for the bringing and opposing the motions for a final order for joint custody and the mutual orders for equalization spell each other off. The access order obtained by Ms. Nicolaidis was moderately more successful than the disclosure that Mr. Morris obtained in that the access order was absolute, while the disclosure requested was not granted in its entirety because of various answers and documents had already been provided. In my view, Ms. Nicolaidis was the more successful party on an overall basis by approximately 20%.
[14] I do not have the benefit of any submissions from Mr. Morris on what he would have claimed for costs on these motions if he had not taken the position that costs should simply be referred to the trial judge. I therefore do not know what he could reasonably expect to recover if found to be the successful litigant, or to pay as the unsuccessful party on these motions. I do recognize that the costs Mr. Morris could likely claim would be far less than the costs claimed by Ms. Nicolaidis because of the fact that Ms. Nicolaidis has counsel, and Mr. Morris does not. However, it is difficult for me to assess his reasonable expectations without the benefit of submissions from him in that regard.
[15] For those reasons, I therefore award the costs of all four motions to Ms. Nicolaidis, fixed in the amount of $4,000, all inclusive. I consider this costs order to be fair and reasonable to both parties, as well as to meet the objectives set out in Serra v. Serra.
Emery J. Released: April 3, 2019
COURT FILE NO.: FS-17-90027-00 DATE: 2019 04 03 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: SHAWN MORRIS, Plaintiff - and - TINA NICOLAIDIS Defendants