Court File and Parties

COURT FILE NO.: FS-12-11977-01 DATE: 202004 29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Georgina Evanthia Vasilodimitrakis Applicant – and – Michael Wayne Homme Respondent

Counsel: Sarah A. Weisman, for the Applicant Richard M. Gordner, for the Respondent

HEARD: IN CHAMBERS IN WRITING

Endorsement on Costs

BONDY J.

A. Introduction

1) Background

[1] This is the decision as to costs, and reasons for that decision, with respect to a motion brought by the applicant mother Georgina Evanthia Vasilodimitrakis.

[2] I found this to be a high conflict case.

[3] By way of background, the applicant and the respondent father, Michael Wayne Homme, ("the respondent") resided together from 2005 until 2010. They have one biological child, Mileena Evanthia Homme-Vasilodimitrakis ("Mileena"), born April 13, 2006.

[4] Mileena suffers from "oligoarticular juvenile idiopathic arthritis" and as part of that condition, has developed "uveitis" which has affected her eyes. As a result, she is required to take medications which include, without limitation, a weekly injection of methotrexate. Methotrexate suppresses her immune system.

[5] Mileena is under the care of nine different doctors as a result of these conditions.

[6] There was consensus that Mileena is medically fragile and does have an unusually high risk to Covid-19 as a result of her conditions.

[7] There was also consensus that Mileena must "stay home".

[8] The applicant mother maintained that the respondent father was unnecessarily exposing Mileena to risks from the Covid-19 virus and sought to terminate Mileena's face-to-face contact with her father on that basis. In the end, I concluded that he had done so.

[9] However, I also found that the conduct of the mother similarly exposed Mileena to unnecessary risks. Further, I found that her conduct regarding Mileena was significantly less than compliant with what she maintained the medical advice dictated.

[10] Accordingly, I found that the applicant mother had failed to demonstrate that Mileena was any better off at her home than she was at that of the respondent father. I also found that Mileena would not be exposed to any excessive risk if each parent conducted themselves in accordance with my order and if transportation between the respective homes was carried out in accordance with that order.

[11] Important to the issue of costs, as was observed in my reasons for judgement, the affidavits originally filed by both parties were more of an attempt by each party to vent their frustrations with the other than to explore Mileena's safety and best interests. The failure to focus on Mileena's best interests only served to inflame an already difficult situation, unnecessarily prolong the process, and create an emergency which could have potentially been avoided through focused negotiations. This conclusion finds support in my observations above that both parties had exposed Mileena to unnecessary risks after they had become aware of those risks. Had they been cooperative and focused on Mileena's safety, that never would have occurred.

[12] However, notwithstanding the applicant mother's lack of success, the motion did serve the very important function of bringing the failure of both parents to appropriately protect Mileena's health to the attention of the court. As a result, the court will be in a position to continue to monitor the conduct of both parties in the future, if necessary.

[13] Consistent with that observation, in my decision I observed that this may not be an appropriate case for costs, but notwithstanding, gave counsel an opportunity to make submissions if they disagreed with my observations. The respondent elected to do so.

B. Costs Submissions

1) The Applicant’s Position

[14] The applicant relies upon my finding that the respondent unnecessarily exposed Mileena to risk of infection by the Covid-19 virus. She also maintains that the respondent was not reasonable in negotiations essentially because he would not settle for anything less than continued face-to-face access with Mileena. Applicant's counsel also observes that I found the evidence of the respondent father internally inconsistent from time to time.

2) The Respondent’s Position

[15] The respondent submitted a cost outline which claims $3,969.12 on a partial indemnity basis and $7,138.77 on a full indemnity basis. Both amounts include HST.

C. Analysis

1) Introduction

[16] Modern costs rules are designed to advance five purposes in the administration of justice:

(1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements.

See:

[17] The jurisdiction to award costs is found in s. 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43. The discretion granted by that section is subject to the overriding principle of reasonableness: see Davies v. Clarington (Municipality), 2009 ONCA 722, [2009] O.J. No. 4236, at para. 52. Similarly, at para. 26 of the decision in Boucher v. Public Accountants Counsel for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.). Armstrong J.A. held that the fixing of costs is not to be regarded as a mere mechanical exercise. Rather, “the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.” The failure to address the overriding principle of reasonableness can produce a result that is contrary to the fundamental objective of access to justice: see Boucher, at para. 37: see also Delellis v. Delellis and Delellis, [2005] O.J. No. 4345 (S.C.), at para. 9. Consistent with that observation, costs in family law matters must be proportionate to the issues and results given that the primary objective of the rules is to enable the courts to deal with cases justly.

[18] In summary, as was observed by Nordheimer J.A., “proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs”: see Beaver v. Hill, 2018 ONCA 840, [2018] O.J. No. 5412, at para. 12.

[19] The reasonable expectations of the parties is also a relevant factor: see Boucher, at para. 38. Those expectations can be measured by two methods. To be clear, they are not mutually exclusive. The first method is by the unsuccessful party revealing what their costs were, and the second method is by application of the principles delineated in the rules: see Hague v. Liberty Mutual Insurance Co., [2005] O.J. No. 1660, [2005] O.T.C. 290, at para. 15.

[20] As to the first method, the applicant did not provide a bill of costs, and accordingly I was unable to obtain any guidance through this method. "The failure to volunteer that information may undermine the strength of the unsuccessful party's criticisms of the successful party's requested costs": see Frazer v. Haukioja, 2010 ONCA 249, [2010] O.J. No. 1334, at para. 73; and Hague v. Liberty Mutual Insurance Co., at para. 16.

2) Analysis

24(1) Successful party presumptively entitled to costs

[21] I reiterate the respondent was the successful party and accordingly is presumptively entitled to costs.

24(4) Successful party who has behaved unreasonably

[22] See my comments below related to reasonableness of the parties.

24(5) & 24(12) the reasonableness or unreasonableness of each party’s behaviour in the case

[23] Rule 24(5) provides that in deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; (b) the reasonableness of any offer the party made; and (c) any offer the party withdrew or failed to accept.

[24] See my comments below related to reasonableness of the parties.

24(6) Divided success

[25] Although the respondent was successful in continuing Mileena's access with him, I find that the success was somewhat divided nonetheless. That is because the Motion served the very important function of altering the conduct of both the applicant and the respondent, and put the court in a position to oversee the conduct of both in the future, if necessary.

24(7) Absent or unprepared party

[26] As said above, neither party was properly prepared when the motion was first scheduled to be heard. The affidavits originally filed by both parties are more of an attempt by each party to vent their frustrations with the other than to explore Mileena's safety and best interests.

24(8) Bad Faith

[27] This factor does not apply.

24(10) Costs to be decided at each step

[28] This factor supports making a costs decision at this stage.

24(12)(a)(i) the reasonableness and proportionality of each party’s behaviour as it relates to the importance and complexity of the issues

[29] As said above, the affidavits originally filed by both parties are more of an attempt by each party to vent their frustrations with the other than to explore Mileena's safety and best interests. In other words, the materials filed suggest that the primary objective of each was to injure what they each perceived to be their opponent, rather than to protect their daughter. Several adjournments were required in order to redirect the evidence to the central issues before the court.

[30] Further, I found the evidence of both to be internally inconsistent. I also found that each had, from time to time, made less than full disclosure.

24(12)(a)(ii) the reasonableness and proportionality of the time spent by each party as it relates to the importance and complexity of the issues

[31] I refer to my comments above.

24(12)(a)(iii) the reasonableness and proportionality of any written offers to settle, including offers that do not meet the requirements of rule 18 as it relates to the importance and complexity of the issues

[32] I am not aware of any written offers to settle.

24(12)(a)(iv) the reasonableness and proportionality of any legal fees, including the number of lawyers and their rates as it relates to the importance and complexity of the issues

[33] As said above, the respondent submitted a cost outline which claims $3,969.12 on a partial indemnity basis and $7,138.77 on a full indemnity basis.

[34] In this case, I estimate that respondent's counsel has been at the bar for 35 or 40 years. He seeks $350 per hour on a full indemnity basis. I find that amount reasonable.

[35] I say that because the Costs Subcommittee of the Civil Rules Committee suggests a maximum of $350 per hour for lawyers with 20 years or more experience when fixing partial indemnity costs [emphasis mine]: see Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041, [2013] O.J. No. 717, at para. 13. Price J. suggests that based upon the Bank of Canada Inflation Calculator the 2014 equivalent of the hourly rates in the Cost Bulletin is $409.16 for lawyers of over 20 years experience: see J.J.A.S. Catering and Banquet Inc. v. Vesia, 2015 ONSC 1417, [2015] O.J. No. 1151, at para. 21. Respondent's counsel's partial indemnity equivalent of the requested fees are well below that amount.

[36] Rule 1(7) of the Family Law Rules, Ont. Reg 114/99, provides that if those rules do not cover a matter adequately, reference may be had to the Courts of Justice Act, R.S.O. 1990 c. C.43, and if the court considers it appropriate, to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Rule 1.03 provides that substantial indemnity costs (which by definition are less than full indemnity costs) means a cost award an amount that is 1.5 times higher will would be awarded in accordance of the now defunct Part I of Tariff A. Importantly, the rates in that the Cost Bulletin referred to above mimic that Tariff. It follows that the $300 per hour on a full indemnity basis for a lawyer with 35 or 40 years of experience is far below the recommendations of the Costs Subcommittee.

[37] However, I find the number of hours claimed excessive. That is because some of the costs related to a motion brought by the respondent which was not heard. The law is well established that costs, no matter what the scale, are limited to those which have been reasonably incurred: see, for example, Smith Estate v. Rotstein, 2012 ONSC 4200, [2012] O.J. No. 3375, at para. 59.

24(12)(a)(v) the reasonableness and proportionality of any expert witness fees, including the number of experts and their rates as it relates to the importance and complexity of the issues

[38] See my comments below as to disbursements.

24(12)(a)(vi) the reasonableness and proportionality any other expenses properly paid or payable as it relates to the importance and complexity of the issues

[39] See my comments below as to disbursements.

24(12)(b) any other relevant matter

[40] The heading "other matters" includes the ability to pay costs: see, for example, Biant v. Sagoo, [2001] O.J. No. 3693 (S.C.), [2001] O.T.C. 695, at paras. 17 & 21; C.A.M. v. D.M. (2003), 67 O.R. (3d) 181 (C.A.), 176 O.A.C. 201, at para. 42.

[41] There was nothing to suggest that the applicant is in any different financial position than the respondent.

24(12.1) Any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court

[42] Subject to my comments immediately below with respect to the respondent's motion, I found the respondent's bill of costs appropriate.

3) Conclusions as to Fees

[43] The fees claimed by the respondent on a full indemnity basis are $7,138.77. For the reasons above, I find that $6,000 inclusive of HST can properly be supported by the dockets. Also for the reasons above, I find that the cost award in this situation should be very limited due to the respondent's conduct. Accordingly, I find an award of $1,000 for fees inclusive of HST to be appropriate in the circumstances of this case.

4) Disbursements

[44] There was no claim by the respondent for disbursements made.

D. Order

1) Costs

[45] Costs are fixed at $1,000 all-inclusive payable by the applicant Georgina Evanthia Vasilodimitrakis to the respondent Michael Wayne Homme.

2) Time

[46] The applicant shall have 30 days to pay the costs from the later of the date of this order and the date of the final disposition of any appeals.

3) Interest

[47] This costs order shall bear interest in accordance with the Courts of Justice Act, R.S.O. 1990 c. C.43.

Christopher M. Bondy “Electronically signed and released by Bondy J.” Justice

Vasilodimitrakis v. Homme, 2020 ONSC 2689

Case Summary