Court File and Parties
COURT FILE NO.: FC1268/19-01 DATE: 20221007 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: Shelley Gioiosa, Applicant AND: Antony Gioiosa, Respondent
BEFORE: MITROW J.
COUNSEL: Self-represented for the Applicant Self-represented for the Respondent
HEARD: Written submissions filed
Costs ENDORSEMENT
[1] Pursuant to the trial judgement (“the order”) dated July 22, 2022[^1], the parties have provided the court with their written costs submissions.[^2]
[2] The parties settled equalization payment during trial. The sole issue left for determination at trial was the applicant’s claim for spousal support – both ongoing and retroactive. The applicant was awarded $1100 per month ongoing spousal support, together with spousal support arrears fixed at $15,000, payable $250 per month.
[3] Both parties are self-represented.
[4] The applicant, in her initial submission, sought $2495.50 for fees based on 161 hours at $15.50 minimum wage. She sought a further $575.59 in disbursements for which receipts are attached. The total amount sought was $3071.09. In addition, the applicant refers to 75 emails of communication, claiming she did not know how to include the emails as part of her costs.
[5] The respondent claims that he was the more successful party. In making that submission, he relies on an offer he made dated April 15, 2021. The respondent seeks costs of $5550.62, to be paid by the applicant. This amount was arrived at by reference to legal costs incurred by the respondent earlier in this proceeding when he had counsel - his legal bill, inclusive of HST, was $10,121, and the respondent in effect, seeks an order to compensate him for a portion of the legal fees that he has incurred.
[6] In her reply submissions, the applicant claims to be the successful party. She seeks to add as a disbursement, a lawyer’s bill of $871 for some work done to assist the applicant. Also, the applicant claims an additional 20 hours “for preparing costs submissions.” The applicant now seeks $4,252.
WHO IS THE SUCCESSFUL PARTY?
[7] I am unable to accept the respondent’s submission that he is the more successful party.
[8] The respondent focuses on that portion of his offer that deals with ongoing spousal support. His offer provides for $1207 per month commencing May 1, 2021. The order provides for $1100 per month commencing January 1, 2022.
[9] The respondent does acknowledge that his offer provided for no arrears of spousal support, whereas the order awarded $15,000. The respondent has done some calculations on the assumption the order continues until he attains age 65. The respondent notes, on that basis, that the money to be received by the applicant under the order overall would not be significantly more than under the respondent’s offer. (Both the order and the offer provide that the respondent’s retirement at age 65 is a material change in circumstances).
[10] The respondent claims that at trial he was “100% successful” on the issue of monthly ongoing spousal support.
[11] However, the respondent’s offer has other relevant parts which cannot be ignored. An important consideration is that no portions of the respondent’s offer were severable.
[12] The issue of the continuation of the respondent’s employer health benefits was critical to the applicant. The respondent’s offer allowed him to substitute a new partner, either common law, or by marriage, to receive his employer health benefits.
[13] Further, the offer provided that the respondent may proceed with his claim for divorce.
[14] In contrast, the order required the respondent to keep the applicant covered under his health benefits without the right to substitute a new partner, and the claim for divorce was withdrawn by the respondent. The withdrawal of the divorce claim avoided the potential of the applicant becoming ineligible for coverage under the health plans.
[15] The respondent’s analysis fails to consider the monetary value of the applicant’s expenses that are covered by the respondent’s employer health plans.
[16] The respondent’s offer only requires him to name the applicant as a beneficiary of his optional group life insurance with his employer, whereas the order includes both group life and optional group life.
[17] The respondent’s offer provided that the parties would bear their own costs of the proceeding. This offer was made approximately 18 months after the application was issued in October 2019. Acceptance of the offer would have deprived the applicant of an opportunity to seek costs. By “burying” costs into his offer, the respondent increased for the applicant the cost of accepting the offer.
[18] It is noted that the respondent’s offer does not engage the costs consequences of r. 18(14). However, the respondent’s offer remains a factor to be considered in relation to quantum of costs.
[19] I conclude that the applicant was the more successful party and is presumptively entitled to costs.
DISCUSSION
[20] The factors to consider in setting costs are listed in r. 24(12)(a):
(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) …
[21] The issues of property (which settled during trial) and support were important to the parties.
[22] The respondent did not provide any details as to the time spent. The applicant claimed that she only kept time records from January 2022 – that she “understood” that the costs were from January 22, 2022, to the end of trial. I give little weight to this submission. The final order was clear (para. 16) that the parties were to make written submissions in relation “to costs of this proceeding.” I consider only the time spent by the applicant as set out in her submissions, without speculation as to what other time involvement, if any, she may have had.
[23] In considering each party’s behaviour, I find that neither party engaged in any unreasonable conduct. However, having regard to the offers of both parties, I find that the respondent, on the issue of quantum of support, was more realistic. The amount sought by the applicant for ongoing spousal support was excessive, and in my view, contributed to the proceeding being longer than necessary. At the outset of trial, the respondent’s draft order proposed ongoing spousal support of $1100 per month, being the amount ordered after trial.
[24] In terms of disbursements, the applicant’s claims include $357 for a laptop to use at trial, and $45.19 for luggage to transport documents to and from trial. I do not view those specific disbursements as appropriate to include in a costs award.
[25] Modern family cost rules are designed to foster three fundamental principles – (1) partially indemnify successful litigants; (2) encourage settlement; (3) discourage and sanction inappropriate conduct by litigants; and a fourth fundamental purpose to ensure that cases are dealt with justly is added by r. 2(2): Mattina v. Mattina, 2018 ONCA 867 (Ont. C.A.) at para 10.
[26] Although self-represented litigants are not entitled to costs on the same basis as litigants represented by counsel, they can recover costs when they devote time and effort to do the work ordinarily done by a lawyer: see Fong v. Chan, 1999 CanLII 2052 (ON CA), 1999 CarswellOnt 3955, [1999] O.J. No. 4600 (Ont. C.A.); and Jordan v. Stewart, 2013 ONSC 5037 (Ont. S.C.J.) at paras. 74, 75.
[27] Having regard to the amount claimed by the applicant, considering the foregoing discussion, and applying the factors in Rule 24(12)(a), I fix costs at $2500 inclusive of disbursements.
ORDER
[28] I make the following order:
The respondent shall pay to the applicant her costs of this proceeding fixed in the amount of $2500, payable within 30 days.
The full amount of this costs order shall constitute a support order within the meaning of the Family Responsibility and Support Arrears Enforcement Act, 1996, and shall be enforceable by the Director.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: October 7, 2022
[^1]: Reasons for judgement reported at Gioiosa v. Gioiosa, 2022 ONSC 4281 (Ont. S.C.J) [^2]: The written costs submissions consisted of the applicant’s initial submissions, the respondent’s submissions, and the applicant’s reply.