Court File and Parties

COURT FILE NO.: FC-19-1222 DATE: 2023/04/14 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Jennifer DeGiorgio Applicant – and – Nicola DeGiorgio Respondent

Counsel: Sarah Giamberardino for the Applicant Alexi Durgali for the Respondent

HEARD: In Writing

Decision on Costs For May 9 – 20, 2022 Trial on Parenting

Justice Engelking

[1] A bifurcated trial of this matter was held, with the parenting issues being addressed in the May 2022 trial sittings, and the financial issues being addressed in the September 2022 trial sittings of September 2022. On November 28, 2022, my decision on the parenting issues was released to the parties. In it, I invited written submissions on the issue of costs of the trial if the parties were unable to resolve same. I received submissions from both. This is my decision on the costs of the May 2022 trial.

[2] Jennifer proposes that the parties bear their own costs.

[3] Nicola seeks an order for $237,073.53 in costs for the trial, composed of the following:

a. $64,876.19 paid to Lyon Family Law b. 63,522.41, being 2/3’s of fees paid to Tanya Davis on a partial indemnity basis, and c. $108,674.93 as costs thrown away on a full indemnity basis for the adjournment of the trial in May of 2021.

[4] The Ontario Court of Appeal has held that the Family Law Rules, O.Reg. 114/99 on costs are “designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and (3) to discourage and sanction inappropriate behaviour by litigants.” [1]

[5] Rule 24(12) of the Rules sets out a list of factors the court shall consider in determining an appropriate amount of costs, including that there be reasonableness and proportionality in any costs award. [2] Factors to be considered include each parties’ behaviour, their time spent, any offers to settle, legal fees, expert witness fees and any other properly paid expenses. [3] Rule 18(14) provides that there are cost consequences to not accepting an offer if the criteria in that rule are met. [4]

[6] Nicola was the more successful of the parties at trial. He obtained decision-making authority over health-related matters for the children, he obtained holiday parenting time in accordance with his January 26, 2022, Offer to Settle, and he obtained more regular parenting time than was proposed by Jennifer, albeit one less overnight every two weeks than was contained in his Offer.

[7] Jennifer submits that delays in the case were caused by Nicola, which caused the parties to incur more costs. These included three adjournments of trial and changes of counsel, and either non-responsiveness or delayed responses to proposals around parenting assessors and/or counsellors for the children. Nicola disputes that he personally caused delay, indicating that the death of one counsel and the illness of another were the causes of two delays. He also seeks full indemnity costs thrown away for the delay caused by the adjournment of the trial in May of 2021. Jennifer indicates that the delay was, in fact caused by the requirement for fulltime childcare due to the closure of school/daycare resulting from the pandemic.

[8] I cannot find that Jennifer be responsible for full indemnity costs of $108,000 thrown away by the adjournment of the May 2021 trial. Although Nicola indicated in his testimony that Jennifer would not agree with his proposal for childcare, the adjournment was on consent. Costs thrown away are typically for wasted preparation time; however, if Nicola was required to change counsel subsequently, even if by necessity (i.e. the death), Jennifer cannot be held entirely responsible for that. Nicola will receive some compensation for the time thrown away, but not to the value of $100,000.

[9] Jennifer also indicates that her legal fees to the end of the May trial were $139,678.90. She submits that the costs award requested by Nicola is excessive in comparison. With this, I agree. While a party may retain whomever they like to conduct their litigation, this does not mean that the other party will be responsible to pay that chosen counsel’s fees. While Mr. Durgali’s hourly rates are reasonable, Ms. Davis’ were not. Additionally, several of the items billed by Ms. Davis related to members of her firm talking to or receiving instructions from each other, and not to direct contact with the client or direct work being done for Nicola. Indeed, part of Nicola’s claim for compensation from the Law Society relate to duplicated billings or specific work not being done. As a consequence, I would reduce both the hourly rate for work done by Ms. Davis and the number of hours billed by her firm.

[10] Additionally, Nicola has requested an order for full indemnity fees for work done after his Offer to Settle of January 26, 2022. However, while he did as well or better on some aspects of his offer, others were more favorable to him than the outcome of the trial, specifically the schedule of regular parenting time. I would only award costs on a partial indemnity basis for this period.

[11] Jennifer submits that any costs award contemplated should be reduced to account for her limited means and the effect such an award would have on the children. She continues to owe approximately $70,000 of her own legal fees, has considerable debt and earns approximately $30,000 per year. While a lack of means can be considered in determining a quantum of any costs award, it is not a shield from liability.

[12] I find that Nicola is entitled to the following costs:

a. $44,662 for Lyon Family Law b. $30,000 for Tanya Davis Law Office c. $30,000 for costs thrown away for the May 2021 trial.

Order

[13] There shall be a final order as follows:

1. The Applicant shall pay to the Respondent costs of $104,662 for the trial of this matter.
2. This costs award may apply as a credit towards the child support and spousal support arrears owed by the Respondent to the Applicant pursuant to my Reasons for Decision dated April 14, 2023, on the trial of the financial issues.

Engelking J. Released: April 14, 2023

Footnotes

[1] Mattina v. Mattina, 2018 ONCA 867, paragraph 10 [2] Rule 24(12), Family Law Rules, O.Reg. 114/99, as am. [3] Ibid. [4] A party is entitled to costs on a full recovery basis if the offer was made at least one day before the motion, did not expire or was not withdrawn, is not accepted and the order made is as or more favorable than the offer.