COURT FILE NO.: FC-19-155
DATE: 20191011
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DAVAH E. GEORGAROS-SIMPSON, Applicant
-and-
VASSILIOS “Billy” GEORGAROS, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Beverley Johnson, for the Applicant
Tanya Davies, for the Respondent
HEARD: In writing
costs ENDORSEMENT
[1] On July 30, 2019, I heard a motion brought by the applicant mother seeking the following temporary orders:
primary care of the parties’ three-year-old child, Ari;
interim decision-making authority;
access to the father every second weekend from Friday to Sunday as well as every Tuesday evening;
fixed arrangements related to pickups and drop-offs of the child for access;
a determination that the child shall be registered and attend Broadview Avenue Public School commencing September 2019;
child support in the amount of $1,150 per month, retroactive to the date of the parties’ separation (being May 2018);
a monthly contribution to the child’s daycare expenses in the amount of $144, retroactive to September 2018 and ending on August 31, 2019. Thereafter, a contribution to the child’s s. 7 expenses in proportion to income;
spousal support in the amount of $1,662 per month, retroactive to the date of the parties’ separation (May 2018);
life insurance coverage for both child and spousal support, in the amount of $400,000, and;
health and dental coverage for both herself and the child.
[2] The father sought the following temporary orders:
joint custody of the child;
an equal time-sharing schedule;
summer holiday access;
the appointment of the Office of the Children’s Lawyer (“OCL”), and;
a determination that the child is to be registered and attend Laurier Carriere Elementary School in September 2019.
[3] The father did not dispute his obligation to pay child support, including a contribution to s. 7 expenses, but took the position that any retroactive award should be left for the trial judge. He also did not dispute his obligation to maintain life insurance and health and dental coverage for the children and the mother (on an interim basis) but sought an order that the mother also be required to maintain life insurance in the amount of $150,000 to cover notional child support in the event of her death.
[4] With regards to spousal support, the father did not dispute the mother’s entitlement, but argued that a lump sum payment of $15,000 would fully satisfy the mother’s entitlement. Alternatively, he took the position that a $50,000 income should be imputed to the mother for the purpose of calculating spousal support.
[5] Ultimately, the mother was successful on almost all issues. She was granted temporary sole custody of Ari and the access schedule that she proposed was ordered. I imposed clear arrangements related to pickups and drop-offs of the child for access and determined that Ari should be registered at and attend Broadview Avenue Public School, the mother’s choice of school for him. I made an order for child support in the amount of $1,150 per month, retroactive to the date of the parties’ separation, and required the father to pay a monthly contribution to the child’s daycare and special expenses, retroactively. I declined to make an order requiring the mother to maintain life insurance coverage and refused to appoint the OCL at this particular juncture (although I allowed this request to be presented again in the future, if necessary).
[6] The only issue for which the mother had mixed success was that of spousal support. Rather than the amount of $1,662 per month that she sought retroactively to the date of the parties’ separation (May 2018), I ordered the father to pay the amount of $850 per month for the period of May 2018 to and including August 2019, and the amount of $1,100 thereafter. I did not impose an obligation to maintain a life insurance policy on the mother to secure child support.
The Parties’ Position
[7] The mother seeks her full costs in the amount of $20,811.79 for this motion. Alternatively, she seeks costs in the amount of $15,169.24, being the total of her costs on a partial indemnity basis until May 29, 2019, the date of her first offer to settle, and her costs on a full indemnity basis thereafter.
[8] The father concedes that the mother was the successful party in this motion. However, he is of the view that the amount of costs incurred by the mother for this motion was excessive. He argues that an award of costs in the amount of $10,000 for the motion and of $750 for the case conference would be proportionate, fair and reasonable.
[9] I conclude that the father should pay costs to the mother in the amount of $10,000, for the following reasons.
[10] The mother was the successful party in this motion. As such she is presumptively entitled to her costs on a partial indemnity basis.
[11] The mother made two offers to settle the issues raised in the motion, both of which satisfied all the conditions of rule 18(14) of the Family Law Rules, O. Reg. 114/99. Her first offer was made on May 29, 2019 and her second offer was made on July 29, 2019 (the day before the motion was heard). Her May offer was divided into different parts dealing with each group of issues separately and was severable. Regarding parenting issues, her May offer was more favorable to the father than the outcome he achieved at trial. The mother is therefore entitled to full indemnity costs with regards to parenting issues from May 29, 2019.
[12] The mother’s May offer dealt with child and spousal support as a group. As she achieved mixed success on the issue of spousal support, I find that her May offer was not as favorable as, or more favourable than, the outcome she achieved at the motion. Therefore, the costs consequences set out in rule 18(14) do not apply with respect to financial issues.
[13] Although she did not specifically mention this in her submissions, a review of the mother’s bill of costs confirms that the costs she seeks cover the following steps in the case: the case conference scheduled to proceed on March 8, 2019 but which had to be adjourned to allow the father’s recently retained counsel to review the file and prepare his Answer; the case conference held on March 27 which resulted in a consent temporary order (costs for that case conference was reserved to the motion’s judge); cost of questioning scheduled to proceed on May 8 but which did not proceed as the father did not attend; cost of the father’s questioning which did take place on June 12; cost of the mother’s questioning which took place on July 10; and the motion itself.
[14] I have decided that the mother is only entitled to seek costs for the motion itself and for the parties’ questioning (the purpose of which I understand was to examine the parties on their affidavits), for the following reasons.
[15] Attendance at a case conference is the first step in any family case. It is mandated and required by the Rules. A motion cannot be brought until and unless a case conference has been held and substantive issues discussed with the presiding judge or master. While it is open to the mother to seek her costs for this mandatory step in the case once the trial is completed (or as part of settlement negotiations), I fail to see why the court should be required to determine costs for this step in the case in the context of a motion for temporary relief, absent special circumstances (which I do not find here).
[16] With regards to the failed questioning attempt of May 8, significant costs were imposed on the father by Justice O’Bonsawin on June 18 (when this motion was first scheduled to be heard, and was ultimately adjourned), both to punish him for seriously objectionable conduct but also to compensate the mother for the failed questioning attempt of May 8.
[17] Therefore, the only steps in the case for which costs will be determined by myself are the costs of the motion itself as well as the questioning of both parties which took place on June 12 and July 10. As part of the mother’s costs related to the motion, I include the costs incurred to prepare her cost submissions and her bill of costs.
[18] Also, while the father may very well have behaved in a way that would constitute bad faith or unreasonable conduct in the context of prior steps taken in this case, in the context of the steps for which costs will now be adjudicated, I do not find that he behaved unreasonably or in a manner that would amount to bad faith.
[19] The total amount of the mother’s costs for those steps is roughly $16,000 (inclusive of HST and disbursements). Of this, roughly $6,000 were incurred after the mother’s May offer. I have reviewed the mother’s bill of costs and I find that the hourly rates charged by her counsel and the various employees who assisted her (junior lawyer, law student and law clerks) were reasonable having regard to the nature and level of complexity of the issues raised in this case. The number of hours charged were also reasonable.
[20] Given all the above, I agree with the father’s suggestion that a cost order in the amount of $10,000 represents a proportionate, fair and reasonable cost award in favour of the mother for this motion, and I so order.
Madam Justice Julie Audet
Date: October 11, 2019
COURT FILE NO.: FC-19-155
DATE: 20191011
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: DAVAH E. GEORGAROS-SIMPSON, Applicant
-and-
VASSILIOS “Billy” GEORGAROS, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Beverley Johnston, for the Applicant
Tanya Davies, for the Respondent
costs ENDORSEMENT
Audet J.
Released: October 11, 2019