COURT FILE NO.: FS-17-90027
DATE: 2021 06 14
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Shawn Morris
and
Tina Nicolaidis and Andy Nicolaidis
BEFORE: McGee J.
COUNSEL: Stephanie Tadeo, for the Applicant
G. Stern, for the Respondent Andy Nicolaidis
Tina Nicolaidis, self represented Respondent
COSTS ENDORSEMENT
[1] On April 20, 2021 I granted the respondent Andy Nicolaidis’ summary judgment motion for a final Order dismissing the applicant’s claims against him. He now seeks a full recovery of his costs in the amount of $63,801, which represents the whole of his involvement in the proceeding inclusive of HST. The respondent, Tina Nicolaidis seeks a substantial recovery of her costs in the amount of $13,137.38 which she states is a proportion of her fees, disbursements and HST exclusive to the claims against her father.
[2] Mr. Morris does not contest his former father-in-law and spouse’s entitlement to costs but argues that the amounts sought are excessive. He proposes costs of $16,815.12 and $3,268.53 respectively.
[3] For the reasons set out below, costs payable by Mr. Morris are awarded to Mr. Nicolaidis in the amount of $50,850 and to Ms. Nicolaidis in the amount of $10,268.
The Law of Costs
[4] The parties have comprehensively set out the law of costs in their submissions. Relevant to these reasons, I will emphasize the purpose of a costs award: to partially indemnify successful litigants; to discourage and sanction inappropriate behaviour by litigants; to encourage settlement and; to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules, see Mattina v. Mattina, 2018 ONCA 867.
[5] Rule 24(1) of the Family Law Rules provides that a successful party is presumptively entitled to costs. The specific factors to be considered in an award of costs can be found at Rule 24(12) of the Family Law Rules,
24 (12) In setting the amount of costs, the court shall consider,
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party's behaviour;
(ii) the time spent by each party;
(iii) any written offers to settle, including offers that do not meet the requirements of Rule 18;
(iv) any legal fees, including the number of lawyers and their rates;
(v) any expert witness fees, including the number of experts and their rates;
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter.
[6] Costs awards are intended to change litigation behaviour. However, those costs must be fair, reasonable and proportionate.
[7] A fair and reasonable amount is an amount of costs which the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation: Lupien v. Carmichael, 2017 ONSC 2929. A proportionate amount is an amount that bears a relationship to the complexity and importance of the issues to be decided. Proportionality and reasonableness are “the touchstone considerations to be applied in fixing the amount of costs,” see Beaver v Hill 2018 ONCA 840.
Analysis
[8] Mr. Morris frames his costs submissions around the idea of his claim against Mr. Nicolaidis having been novel, and of particular relevance to today’s reality of parent-assisted home purchases. While I do not disagree that this was ultimately the framing of my decision, his claim was regrettably confused. Absent that confusion, it would have been apparent at a much earlier stage that Mr. Morris’ claim against Mr. Nicolaidis was untenable at law.
[9] I agree with Mr. Nicolaidis’ reply submission that the ambiguous manner in which the claims were pled consumed significant legal resources in response.
[10] At the same time, I do not find that the claims were made in bad faith. As set out in Mr. Morris’ submissions, there was no attempt to conceal relevant information or to deceive the respondents or the Court, familiar prerequisites to a finding of bad faith as set out in S.(C.) v S (M.), 2007 20279 (ON SC), [2007] OJ No 2164.
[11] If Mr. Morris sought a litigation advantage in bringing Mr. Nicolaidis into the Application against his former spouse; in hindsight, such a misperception does not in my view constitute bad faith so much as poor risk management. By engaging both father and daughter as active litigants, Mr. Morris’ exposure to costs was doubled.
[12] I now turn to reasonableness and proportionality. Reasonableness is best viewed from the vantage of Offers to Settle. The Family Law Rules expressly provide that depending on the conduct of the parties and the presence or absence of Offers to Settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded, Beaver v. Hill, 2018 ONCA 840. This principle also applies to contested motions by virtue of Rules 18(14) and 24(5) and 24(12.) The failure to serve an Offer to Settle will be an adverse factor when assessing costs.
[13] Mr. Morris made no Offer to Settle on the issue of the claims issued against Mr. Nicolaidis in July of 2017 until March 1, 2021, five days before the hearing. The first part of his Offer proposed a withdrawal of his motion for a preservation Order with each party bearing his/her own costs. That part was accepted, but it bears noting at that stage that much of the preparation work for a response had already been completed.
[14] The second part of his March 1, 2021 Offer was that the motion for summary judgment be similarly withdrawn. It was not accepted.
[15] Mr. Nicolaidis made an Offer on December 11, 2019 that would have had the effect of releasing him from the litigation. This was a reasonable Offer that would have been more favourable to Mr. Morris that the result on motion. I therefore find that a full recovery of reasonable costs from December 11, 2019 is appropriate.
[16] Mr. Morris asserts that the amount of Mr. Nicolaidis’ costs is excessive.
[17] Proportionality requires an assessment of the factors in Rule 24(12.) In these circumstances, such an assessment is shaped by the fact that, as a party, Mr. Nicolaidis was required to participate in some manner in all the steps in the proceeding. Those steps were not limited to the claims against him and they include responding to and attending many of the conferences and motions which were primarily focussed on the parenting issues. In a lesser, but parallel fashion, Ms. Nicolaidis had to engage with the trust issues at every step of the proceeding. As a result, and as previously referred, this doubled Mr. Morris’ exposure to costs were he not successful.
[18] Mr. Morris sought a recovery not only against the former matrimonial home, but the property purchased by father and daughter post-separation. He took an aggressive litigation approach with neither a sufficient evidentiary basis nor a sound appreciation of the law. Family law litigants are responsible for the positions they take in the litigation. I do not consider Mr. Morris’ proposed account for the same period of $16,815.12 to be realistic.
[19] I have carefully reviewed Mr. Nicolaidis’ Bill of Costs for internal duplication, unnecessary fees and excessive time. Mr. Stern’s office organized the workload so that the lowest hourly rate would be applied. I do not consider communication between respondents’ counsels to be duplicative because efficient litigation required coordination.
[20] I do find some minor basis to reduce the costs sought by Mr. Nicolaidis based on the time spent, but not in relation to counsel’s hourly rate or the necessity of completing specific tasks, both of which were reasonable. I accept Mr. Morris’ submission that Mr. Nicolaidis’ time at questioning would have had to be incurred in any event as a witness; so I have applied a reduction for that participation, mindful that as a witness he may not have required counsel to attend.
[21] When I consider the minor reductions within Mr. Nicolaidis’ Bill of Costs as a whole, the absolute success of his motion for summary judgment, his December 2019 Offer to Settle and the lack of a timely offer from Mr. Morris, I am prepared to award a significant amount of costs.
[22] I assess that significant amount of costs as an award of costs payable to Mr. Nicolaidis of $50,850, being $45,000 in fees and disbursements plus HST of $5,850.
[23] Ms. Nicolaidis seeks a partial recovery of costs in the amount of $13,153.20 based on a total amount spent of $16,421.73. The full amount is difficult to assess given the amount of costs associated with earlier hybrid steps in the proceeding (that is, parenting and support issues for which costs have already been granted or are outstanding), the nature of her assisted self-representation on this motion and the lack of detail in her Bill of Costs.
[24] I do accept her proposal for her costs of the summary judgment motion and I am prepared to augment that amount with a rounded figure for the reasonable and proportionate costs of earlier steps in the proceeding exclusive to the claims against her father. In reviewing all of the accounts from that perspective, I assess costs payable to Ms. Nicolaidis of $10,268, being $9,087 in fees and disbursements plus HST of $1,181.
[25] Mr. Morris has asked for six months to pay the award of costs, so that he can maintain funds for a mediation in July 2021. No response to this proposal is made in either of the respondents’ reply submissions.
[26] Costs of $50,850 and $10,268 payable to Mr. Nicolaidis and Ms. Nicolaidis, respectively, and are payable on the earlier of December 14, 2021 or a resolution of the equalization claim in this Application.
McGee J.
DATE: June 14, 2021
COURT FILE NO.: FS-17-90027
DATE: 2021 06 14
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Shawn Morris
and
Tina Nicolaidis and Andy Nicolaidis
BEFORE: McGee J.
COUNSEL: Stephanie Tadeo for the Applicant
G. Stern for the Respondent, Andy Nicolaidis
Tina Nicolaidis, self-represented Respondent
ENDORSEMENT
McGee J.
DATE: June 14, 2021