COURT FILE NO.: FC-17-497
DATE: 2021/12/15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Afrodity Aliferis, Applicant
-and-
John (Aik) Aliferis, Respondent
BEFORE: Justice Pam MacEachern
COUNSEL: Valerie Akujobi, for the Applicant
Katrina Anders, for the Respondent
HEARD: In Writing
ENDORSEMENT ON COSTS OF MOTION HEARD JULY 13, 2021
[1] This endorsement determines costs of the motion heard on July 13, 2021.
[2] The Applicant seeks costs of the motion on a full recovery basis of $15,735.25 on the basis that the Respondent acted in bad faith and she was the successful party.
[3] The Respondent seeks an order that he be awarded his costs of the motion fixed at $2,500 plus HST. His position is that he was forced to defend the motion because the Applicant’s requests were excessive, and he achieved some success on important issues.
Factors in Determining Costs
[4] Modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly (Rule 2(2) of the Family Law Rules)[^1].
[5] Rule 24(12) of the Family Law Rules sets out factors relevant to setting the amount of costs, and specifically emphasizes “reasonableness and proportionality” in any costs award.
[6] There is a presumption of costs in favour of the successful party. This presumption does not, however, require that the successful party always be entitled to costs[^2]. An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) pertaining to unreasonable conduct of a successful party, Rule 24(8) pertaining to bad faith, Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party[^3].
[7] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:
(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.
[8] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under Rule 18(14).
[9] Rule 18(14) provides that a party is, unless the court orders otherwise, entitled to costs on a full recovery basis from the date an offer was served, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18(14).
[10] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably:
Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.
[11] Rule 24(5) provides guidance on how to evaluate reasonableness:
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.
Where the parties have divided success, the court may apportion costs as appropriate
(Rule 24(6)).
[12] Rule 24(8) discusses the cost consequences for a party who has acted in bad faith:
If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
Analysis
[13] The Applicant achieved some success on the motion, notably an interim lump sum support award to be credited to support amounts found to be owed or other amounts, and an increase in periodic support. But I agree with the Respondent’s position that much of the relief claimed by the Applicant in the motion was excessive, and rejected on the motion. This includes the monthly support amounts that she sought which were significantly higher than what was awarded, that the Respondent should pay $55,000 for her to have a forensic business valuation completed, and a board preservation order.
[14] The difficulty in identifying the “success” of the parties on the motion is that the Applicant did make an offer to settle the motion. The Respondent did make an offer to settle the motion on June 29, 2021, a copy of which was provided with his cost submissions. The Respondent did not achieve a result on the motion that was as good as, or better, than the terms of his offer. But that does not mean that I can automatically assume that the Applicant was the successful party, particularly when I do not have the Applicant’s offer to assist in assessing this.
[15] In all of the circumstances, however, I am prepared to determine costs based on finding that the Applicant achieved more success than the Respondent on the motion, again, because she received higher interim support and an advance.
[16] I have concerns about the conduct of both parties.
a) With respect to the Applicant:
i. The Applicant did not serve an offer to settle the motion, the effect of which was compounded given the Applicant’s claims in her notice of motion were excessive.
b) With respect to the Respondent:
i. He failed to provide an income report for his income for 2018, 2019, and 2020, the effect of which was compounded given that the income report prepared for his income for 2015, 2016, and 2017 reported his income as being significantly higher than what he had previously represented his income to be;
ii. He delayed in providing other income information with respect to 2018, 2019 and 2020.
[17] The Respondent should have been more forthcoming and proactive to comply with his obligation to provide full and frank financial information. I recognize that at the hearing of the motion, the Respondent did not oppose increasing interim support (although not to the extent ordered), preserving the two properties as ordered, and agreed to provide an income report for his income in 2018, 2019 and 2020. But I do not have evidence that he offered to make these concessions in advance of the motion, other than what is set out in his offer.
[18] Some portions of the motion appear to me to be, in reality, non-issues – the Respondent did not oppose an order being made for the bank to provide the mortgage application and the motion, on notice to the bank, would have been required in any event for the Applicant to achieve this order. Some of the issues raised in the motion would have also been more effectively dealt with by proceeding to questioning.
[19] I do not find that the Respondent acted in bad faith to warrant full indemnity costs of the motion. I do not find that the Applicant is entitled to full indemnity costs – she did not serve an offer and, beyond the bad faith issue, I do not find that the Respondent’s conduct was unreasonable to the extent that warrants full indemnity costs.
[20] I have stated my concerns about each party’s conduct above. In weighing these factors, the Respondent’s failure to provide earlier financial disclosure has the most significance, although I do think that the concerns raised with respect to the Applicant’s conduct also contributed to the costs of this motion.
[21] There is a dispute between the parties about whether the Respondent intentionally misrepresented the daughter’s living circumstances at the motion. I do not see this as an issue that impacts costs. The parties have resolved this issue and adjusted the support accordingly.
[22] Similarly, the correspondence from counsel after the motion was heard does not impact my determination of costs.
[23] The Applicant’s submissions are that her total fees, inclusive of HST, are $15,735.25. The Respondent’s position is that these fees are excessive, and states that reasonable fees for the motion should be $4,860, plus HST (which totals $6,318), which is what his fees were.
[24] Although the Applicant provided a brief summary bill of costs, the information contained in that summary is insufficient for me to assess the reasonableness and proportionality of her fees that exceed $6,318. The Applicant has not provided dockets or detailed descriptions of the time spent.
[25] I also discount the Applicant’s fees because of my finding that the relief sought by her was excessive, as detailed above.
[26] On the evidence before me, I find that reasonable and proportional fees for this motion, excluding the “excess”, are $6,318 inclusive of HST.
[27] I find that an award of costs requiring the Respondent to pay costs to the Applicant of $4,000 for the motion, forthwith, best achieves the goals of a cost order. The primary factors in coming to this decision are:
a. The Applicant achieved some success on the motion and I consider her to be the successful party, although on the whole, the relief she sought on the motion was excessive;
b. The Applicant did not serve an offer to settle the motion;
c. The Respondent did serve an offer to settle the motion but did not do as good as, or better, than this offer;
d. The Respondent should have provided financial disclosure, particularly with respect to his income, much earlier;
e. Given the evidence before me, I can only find that reasonable and proportional fees for this motion total $6,318 inclusive of HST.
Therefore, I order, pursuant to the Family Law Rules:
[28] The Respondent shall pay the Applicant her costs of the motion heard July 13, 2021 fixed at $4,000, payable forthwith.
Justice Pam MacEachern
Date: December 15, 2021
COURT FILE NO.: FC-17-497
DATE: 2021/12/15
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Afrodity Aliferis, Applicant
-and-
John (Aik) Aliferis, Respondent
BEFORE: Justice Pam MacEachern
COUNSEL: Valerie Akujobi, for the Applicant
Katrina Anders, for the Respondent
ENDORSEMENT ON COSTS OF MOTION HEARD JULY 13, 2021
Justice Pam MacEachern
Released: December 15, 2021
[^1]: Family Law Rules, rule 2(2); Mattina v. Mattina, 2018 ONCA 867
[^2]: M.(C.A.) v. M.(D.), 2003 18880 (ON CA), [2003] O.J. No. 3707, at para. 40
[^3]: Berta v. Berta, 2015 ONCA 918 at para. 94