Court File and Parties
Court File No.: FC-17- 497 Date: 2024/09/06 Superior Court of Justice - Ontario
Re: Afrodity Aliferis, Applicant - and- John Steve Aliferis, Respondent
Before: Anne London-Weinstein J.
Counsel: Valerie Akujobi/Richard Bowles, for the Applicant Shawn Duguay, for the Respondent
Heard: In Writing
Costs Endorsement
[1]
Background and Positions of the Parties
The Applicant sought payment of $150,000 in interim costs. She was unsuccessful on that motion.
2The Respondent is seeking costs of $78,689.25 which represents partial recovery of his fees of $118,651.13 up to May 10, 2023. He seeks full indemnity costs after May 10, 2023 when his severable Offer to Settle was served.
3The Respondent asks for cost to be fixed at $4,000 and be paid in the cause.
[4]
Analysis
In the circumstances of this case, I am exercising my discretion to leave costs to be determined in the cause. See Rule 131 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as am. and r. 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. While it is normally preferable for the motions judge to determine the costs of the motion rather than leaving that assessment to the trial judge, in this case there are compelling reasons not to do so.
5There has been no final determination of the substantive issues and the preferable course is to issue the question of costs to the trial judge. In this case, the motion was decided on the narrow issue of whether the Applicant had no other means to finance the litigation. The court expressly did not deal with the Applicant's claim that the Respondent misled the court about the ability to pay a disbursement. The trial judge in this case will be required to make findings about the Respondent's income. The issues for trial involve expert evidence regarding the Respondent's financial affairs. I therefore find there is no prejudice in leaving costs of this motion to be determined in the cause. See: 1550988 Ontario Limited v Burnford Realty Limited, 2017 ONSC 4407, at para. 11.
6Further, while I did not grant the Applicant's motion for interim costs, requiring her to pay costs of the motion at this point prior to trial may impact the ability of the Applicant to retain the experts required for trial.
7Therefore, given that the trial judge will have to assess the financial issues in this case which were not addressed on the motion, and my concern regarding impairing the ability of the Applicant to prepare for trial, I am satisfied that it is more just, in the specific circumstances of this case, to assign costs to be determined in the cause by the trial judge.
Anne London-Weinstein J. Released: September 6, 2024