CITATION: Zigrovic v. Zigrovic, 2025 ONSC 1886
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CHRISTOPHER ZIGROVIC, IN HIS CAPACITY AS POWER OF ATTORNEY FOR PERSONAL CARE AND PROPERTY FOR SHARON ELIZABETH LEVICK, Applicant
AND:
SHARON ELIZABETH LEVICK and ELIZABTH TOBY ZIGROVIC, Respondents
BEFORE: B. Dietrich J.
COUNSEL: Daniel Walker, for the Applicant
Peter Neufeld, for the Respondents
HEARD: In writing
Costs endorsement
1The applicant/moving party, Christopher Zigrovic (the “Applicant”), brought a motion for directions pursuant to s. 68 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”) in the within application. I released Reasons for Decision on the motion on January 28, 2025.
2The Applicant sought the following relief on the motion:
an order that the respondent, Elizabeth Zigrovic (the “Respondent”), produce the powers of attorney executed by Sharon Elizabeth Levick (“Ms. Levick”) while under the control and supervision of the Respondent;
an order for the disclosure, in writing, of Ms. Levick’s current location;
an order permitting the Applicant, with the assistance of the police, to apprehend Ms. Levick;
an order for production of all medical records relating to Ms. Levick;
an order for production of the solicitor’s file of each of Irit Gertzbein and Mona Jitendra Vora regarding Ms. Levick’s powers of attorney;
an order permitting the parties to examine Irit Gertzbein and Mona Jitendra Vora;
an order for the transfer of Ms. Levick to Ressam Gardens in Hamilton;
an order for protective measures regarding Ms. Levick at Ressam Gardens;
an order directing the Public Guardian and Trustee (the “PGT”) to arrange for the legal representation of Ms. Levick; and
an order for the preservation and tracing of Ms. Levick’s assets; and
an order that Ms. Levick submit to a capacity assessment to assess her capacity to manage her property and her personal care.
3The Respondent responded to the motion and asserted that much of the relief sought should be denied. The Respondent also sought certain relief on the Applicant’s motion.
4Shortly before the hearing of the motion, the Respondent produced copies of the powers of attorney executed by Ms. Levick. This left to be determined ten of the eleven matters in respect of which the Applicant was seeking relief, including the appointment of s. 3 counsel, which he had not pleaded in his notice of application.
5Of the remaining ten matters, I ordered the appointment of s. 3 counsel, which the court may do on its own initiative. I also ordered that Ms. Levick submit to a capacity assessment.
6I declined to order any other relief sought by the Applicant.
7I also declined to grant any relief sought by the Respondent because it was unsupported by any cross-motion or pleading.
8Both parties made written submissions on costs.
The Applicant’s Position
9The Applicant submits that he is the Attorney for Property for Ms. Levick and that he was successful on key elements of his motion and should, therefore, be awarded his costs on a partial indemnity basis in the amount of $8,019. Alternatively, he submits that the costs should be borne by each party, respectively, given the divided success on the motion, and in the further alternative, he submits that the costs should be reserved to the judge hearing the application.
10A key element to which the Applicant refers is the order that Ms. Levick submit to a capacity assessment. He submits that while most of the other relief he sought was not granted (e.g., production and disclosure), he was not precluded from seeking it later.
11The Applicant submits that the issues were very important to him as they related to the well-being, safety, and financial security of Ms. Levick. The Applicant submits that the Respondent failed to disclose relevant information regarding Ms. Levick’s medical condition, financial information, and the circumstances relating to the most recent powers of attorney made by Ms. Levick. He submits that this conduct justifies an award of costs against the Respondent.
12The Applicant also submits that the Respondent was granted none of the relief she sought as it was not properly before the court.
The Respondent’s Position
13The Respondent submits that she was largely successful in opposing the Applicant’s motion since he was, essentially, only granted one of the orders he sought based on his pleadings. Therefore, she should be entitled to her costs. She seeks costs, on a partial indemnity basis, of $8,739.
14The Respondent submits that she was required to respond to the Applicant’s urgent motion, which included preparing three affidavits.
15She submits that her full indemnity costs ($13,899) are in line with the Applicant’s full indemnity costs ($15,160.95) and are therefore, objectively reasonable, fair, and proportionate. Accordingly, she submits that it is just that the Applicant pay her partial indemnity costs.
16The Respondent further submits that the issues were very important to her. In her view, her response to the motion was necessary to protect Ms. Levick from the potential harm of a police-enforced apprehension, and a move to a care facility in Hamilton. The Respondent also submits that the Applicant failed to disclose a restraining order respecting Ms. Levick’s property, the Applicant, and the Applicant’s residence, and that such important non-disclosure should factor into the costs decision and be sanctioned with costs.
Analysis
17The general principles when fixing costs are that: a) costs are awarded to indemnify the successful party for the legal fees incurred to encourage settlement and to discourage unnecessary steps in the litigation; b) costs should be fair, reasonable, and proportionate; and c) the court must consider the factors set out in rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg, 194 (“Rules”), when awarding costs.
18In my view, the Respondent was overall successful on the motion. She successfully opposed nearly all the relief sought. Her costs are very similar to the costs that the Applicant seeks and, therefore, should be within the Applicant’s reasonable expectation.
19Having considered the parties’ costs outlines, their written submissions on costs, and the relevant factors set out in rule 57 of the Rules, I find that the Respondent is entitled to her partial indemnity costs, which I fix at $8,000, inclusive of HST and disbursements. This award is fair, reasonable, and proportionate in the circumstances of this case. These costs are payable by the Applicant within 30 days.
B. Dietrich J.
Released: March 25, 2025