Court File and Parties

CITATION: Ruffolo v. David, 2016 ONSC 3725

DIVISIONAL COURT FILE NO.: DC-15-2600

DATE: 20160609

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: FRANCO RUFFOLO, Respondent/Applicant

AND:

MICHELLE ANNE DAVID, Appellant /Respondent

BEFORE: MOLLOY, HAMBLY and HACKLAND JJ.

COUNSEL: Franco Ruffolo, in person Jeff Rechstshaffen, for the Appellant/Respondent

HEARD: In writing

ENDORSEMENT AS TO COSTS

Introduction

[1] Franco Ruffolo and Michelle David were married, but separated. There were two children of the marriage, born in 2003 and 2005. The older child is autistic and has special needs as a result. Ms. David applied for support for herself and her two children. After a trial, an Order was made by Healey J. on December 6, 2011 attributing income to Mr. Ruffolo and awarding lump sum and ongoing support to Ms. David. Mr. Ruffolo’s appeal to the Court of Appeal from that Order was dismissed. Subsequently, Mr. Ruffolo brought a motion to vary the Order of Justice Healey, which application was granted by Gray J. by Order dated February 10, 2015. Gray J. found that there had been a material change in circumstances, varied the support retroactively, and ordered Ms. David to pay $10,000 in costs for the motion. Ms. David appealed to this Court from the Order of Gray J. For Reasons dated February 11, 2016, this Court granted the appeal, set aside the decision of Gray J., restored the support Order of Healey J. and directed that costs be addressed in writing.[^1]

[2] The successful appellant, Ms. David, seeks costs of $15,000 for the appeal and $16,000 for the motion to vary. Mr. Ruffolo submits that both sides should bear their own costs, or alternatively, that Ms. David should be awarded costs of $5000.

Costs of the Appeal

[3] Mr. Ruffolo argues that the appeal was successful because the motion judge was found to have erred. He submits that he had no choice but to defend the motion court judge’s decision and should not have to incur costs because he was unsuccessful in doing so. Needless to say, Mr. Ruffolo did have a choice. He actively defended the appeal. He was unsuccessful. There is no reason that the successful appellant should not have her costs.

[4] Mr. Ruffolo accuses counsel for Ms. David of “unethical” conduct in advising this Court in his costs submissions that Mr. Ruffolo has appealed our decision. We do not find the conduct unethical. However, we do agree with Mr. Ruffolo that it is irrelevant to our costs decision and we have not taken it into account. Further, we do not see this as a case for a punitive costs award as suggested by counsel for Ms. David. Counsel for Ms. David also requested an Order that Mr. Ruffolo not be permitted to take any further procedural steps of any kind in any proceeding relating to Ms. David until he has paid all costs in full. We are not prepared to make such an order merely upon a request in a written costs submission. Mr. Ruffolo was not represented by counsel on the costs issue. We leave the issue of unpaid costs to whatever court in which any further steps are taken by Mr. Ruffolo.

[5] The total costs claimed are $15,000, which is within the norm for an appeal of this nature. This is not substantial indemnity costs, as the total bill of costs was for $18,000. The time spent is reasonable, as are the rates claimed. Such an award should be within the reasonable expectation of the parties.

The Costs of the Motion to Vary

[6] The entire decision of Gray J. has been set aside, which includes the $10,000 costs he awarded to Mr. Ruffolo. Ms. David is entitled to her reasonable costs of that motion.

[7] Costs are claimed in the amount of $16,000. A portion of those costs is claimed on a substantial indemnity basis, based on an offer to settle made in writing on June 20, 2014. The offer gave Mr. Ruffolo the opportunity to withdraw his motion to vary without costs. Mr. Ruffolo proceeded, and has ultimately been unsuccessful. We agree that the offer to settle should be reflected in the costs awarded. However, we do note that the offer was not an offer of compromise, but rather of capitulation without costs consequences.

[8] It seems to us that the $10,000 costs award made by Gray J. in favour of Mr. Ruffolo is a reasonable reflection of the time required and complexity of the motion before him. A similar level of costs for Ms. David is appropriate, but with an additional amount to reflect the offer to settle. Accordingly, we would fix costs at $12,000 for the motion.

Costs Order

[9] In the result, costs are fixed in the amount of $27,000.00, inclusive of taxes and disbursements, for the motion to vary and the appeal. Those costs are payable forthwith.

MOLLOY J.

HAMBLY J.

HACKLAND J.

Date: June 9, 2016

[^1]: Ruffolo v. David, 2016 ONSC 754