Court File and Parties

Court File No.: FS-18-258-00 Date: 2024-04-05 Superior Court of Justice - Ontario

Re: Ashley May Baxter v. David Lawrence Pykari

Heard: In writing

Before: Nieckarz J.

Counsel: M. Cupello, for the Applicant N. Melchiorre, for the Respondent

Endorsement on Costs

[1] The Applicant, Ms. Baxter, seeks an order for costs as against the Respondent, Mr. Pykari, related to Mr. Pykari’s motion to vary child and spousal support on a temporary basis. Mr. Pykari sought the variation retroactively to 2019. The motion was heard January 15, 2024.

[2] For written reasons delivered February 8, 2024 (see Baxter v. Pykari, 2024 ONSC 857), I dismissed Mr. Pykari’s motion. I found that the evidence was insufficient to allow me to properly determine the income of the parties for the purpose of retroactive and ongoing temporary child and spousal support. I found that Mr. Pykari’s business income and the arguments of the parties as to imputation of income applicable to Ms. Baxter are issues that are best left for trial on a more complete evidentiary record. I further found that the arguments with respect to entitlement to spousal support have already been determined on a temporary basis and should proceed to trial. The matter is quite dated and there appeared to be no reason as to why the matter could not proceed for a final determination as opposed to another temporary order.

[3] Ms. Baxter argues that as the successful party on the motion she is presumptively entitled to her costs, and there is no reason to deprive her of them. She seeks $9,958.13.

[4] Mr. Pykari argues that costs should be reserved to the trial judge. In the alternative, the quantum of costs should be reduced to account for unreasonable and unprepared conduct. He further argues that the costs sought are excessive, filing his counsel’s bill of costs in the total amount of $7,906.50 on a partial recovery basis.

[5] For the following reasons costs are awarded to Ms. Baxter in the amount of $8,500 inclusive of fees, disbursements, and HST payable within 30 days of the date of this endorsement.

Legal Framework

[6] An award of costs is a matter in the discretion of the Court by virtue of s. 131(1) of the Courts of Justice Act.

[7] Family cost rules are designed to foster four fundamental purposes: a. To partially indemnify successful litigants; b. To encourage settlement; c. To discourage and sanction inappropriate behaviour by litigants; and d. To ensure that cases are dealt with justly under r. 2(2) of the Family Law Rules, O.Reg. 114/99. Mattina v. Mattina, 2018 ONCA 867, at para. 10.

[8] Rule 24(1) of the Family Law Rules provides that there is a presumption that a successful party is entitled to their costs.

[9] Rule 24(4) of the Family Law Rules provides that a successful party may be deprived of all or part of their costs if they have behaved unreasonably.

[10] In deciding whether a party has behaved reasonably, Rule 24(5) of the Family Law Rules requires a court to consider: a. The party’s behaviour in relation to the issues from the time they arose, including whether they 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: Rule 24(5).

[11] Unreasonable behaviour in relation to the issues includes behaviour that is: a. disrespectful of other participants or the court; b. unduly complicates the litigation; c. increases the cost of litigation; or d. persists in advancing unreasonable positions. Harper v. Smith, 2021 ONSC 3420, at para. 6, citing Beaver v. Hill, 2018 ONSC 3352, para 51, rev’d 2018 ONCA 840 (on other grounds).

[12] In addition to any matter deemed relevant, Rule 24(12) of the Family Law Rules requires the court to consider the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: a. each party’s behaviour; b. the time spent by each party; c. any written offers to settle, including offers that do not meet the requirements of rule 18; d. any legal fees, including the number of lawyers and their rates; e. any expert witness fees, including the number of experts and their rates; and f. any other expenses property paid or payable.

[13] In determining the amount of costs the court must also keep in mind that a costs award should represent a “fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs of the successful litigant”: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (Ont. C.A.); Kamboh v. Majeed, [2021] O.J. No. 1067, 2021 ONSC 1465 (Ont. S.C.J.). A “fair and reasonable amount” is that 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, at para. 9.

Analysis

[14] Ms. Baxter was the successful party. Mr. Pykari was not successful in any of his claims. Rule 24(1) of the Family Law Rules presumptively entitles her to her costs.

[15] Rule 24(10) of the Family Law Rules requires a prompt determination of costs following each step in a case, or alternatively for the court to reserve the decision on costs for determination at a later stage.

[16] I do not agree that costs should be reserved to be determined at trial. While at trial there is a possibility that Mr. Pykari may be successful in the arguments he made on the motion with respect to child and spousal support, I made findings that these arguments are best made at trial and not on a motion. This is particularly so given that the spousal support issue had already been the subject of a judicial determination on a motion, and there appeared to be no reason as to why this matter could not proceed to trial. The dated income information was also problematic. The motion materials were served in October 2022 and the matter was not scheduled for argument until January 2024, 15 months after the motion was served. Income information was not updated and was necessary to assist in a determination of the issues. This delay in having the motion heard was not due to the Court’s schedule. A trial could have taken place in the time it took for the parties to have the motion heard.

[17] In my Reasons on Motion, I accepted Ms. Baxter’s arguments that the issues raised by Mr. Pykari are issues for trial and not a motion. I see no reason not to determine the issue of costs at this stage.

[18] With respect to quantum of costs, I have considered the facts in Rule 24(12) of the Family Law Rules and the parties’ arguments with respect to unreasonable behaviour. I make the following findings: a. I accept that the issues raised by the motion were sufficiently important to both parties to devote the resources allocated by their counsel. b. There are no dockets attached to the Applicant’s bill of costs. Mr. Cupello claims for 42 lawyer hours and 4 law clerk hours. His rate claimed is $225 per hour, which is reasonable given his 40 years’ experience. I compare this to Mr. Pykari’s bill of costs, which as a claim for 50.50 lawyer hours (32.30 hours for Mr. Melchiorre with the balance being other lawyers in the same firm) and 19.20 law clerk hours. Mr. Melchiorre is a lawyer with 19 years’ experience. While this may seem like a lot of hours for a half day support motion, it did take 15 months for the motion to get argued and there was questioning. Given the comparable bills of costs, the amount claimed should be within the reasonable expectation of Mr. Pykari. c. With respect to complexity, the issues were more complicated because of Mr. Pykari’s self-employment and the arguments with respect to imputation of income to Ms. Baxter. Ms. Baxter’s income was relevant because of the shared parenting arrangement between the parties, and the issue of spousal support. Ms. Baxter also operated her own business for a portion of the time in question, and Mr. Pykari did not accept her income as reported. There were large volumes of materials filed by both parties. This was not a simple support motion. d. With respect to Mr. Pykari’s argument that the motion was necessitated by Ms. Baxter’s refusing to recalculate the child support annually as required by the terms of their existing temporary order, I disagree that her conduct was unreasonable such that it should either deprive her of costs or otherwise reduce the amount payable to her. Financial disclosure was a significant issue in this motion. The nature of Mr. Pykari’s income made it difficult to do a simple recalculation. In deciding the motion, I found that the evidentiary record was incomplete such that it was difficult for me to make any determinations of income. The specific concerns are noted in my Reasons on Motion. e. Mr. Pykari also argues that there were numerous adjournment requests made by Ms. Baxter’s counsel, including adjournments of questioning, which delayed the argument of the motion. He further argues that a lack of financial disclosure, including a failure to satisfy undertakings, contributed to my inability to make the determinations requested. There do appear to have been a number of adjournments initially requested to deliver Ms. Baxter’s materials. The delay did add to the cost of the matter. Questioning also needed to be rescheduled because of Ms. Baxter’s schedule, which was a short delay, but this too increased costs. There was also a rescheduling of questioning necessitated by Mr. Pykari, who did not attend. Counsel had prepared for the questioning and waited for approximately an hour before deciding that they could not proceed. This in turn necessitated an adjournment of the motion, as did outstanding disclosure that was required from Mr. Pykari. It took four months for questioning to be rescheduled. As of the time of the motion Ms. Baxter had undertakings outstanding, which impacted a determination of her income, and Mr. Pykari had not provided the full disclosure required to determine the motion. Both parties need to accept some responsibility for the delays and lack of disclosure. This is reflected in the amount of costs awarded. f. With respect to offers, Ms. Baxter made an offer the day of the motion for spousal support to be reduced to $0 per month, the balance of the motion with respect to child support and retroactivity to be withdrawn, and costs reserved to the trial judge. Mr. Pykari also made an offer the morning of the motion that provided for the termination of spousal support effective December 31, 2023, without prejudice to his right to argue for a retroactive termination or adjustment, and the child support issues withdrawn pending trial. The offer also provided for payment on account of arrears fixed in the amount of $1,000 per month. This offer was withdrawn an hour after it was made. Nonetheless, both offers having been made the day of the motion hearing were made too late to impact costs.

[19] In light of the foregoing, I find that a fair and reasonable amount for Mr. Pykari to pay Ms. Baxter on account of costs of the motion is $8,500. This amount was solely on account of support and shall be enforceable as such. An order shall issue accordingly.

Released: April 5, 2024 The Hon. Madam, Justice T. J. Nieckarz