Court File and Parties

Court of Appeal for Ontario Date: 20220707 Docket: C70124 & M53395

Strathy C.J.O., Sossin and Favreau JJ.A.

Docket: C70124 Between Carmela Maria Capone Applicant (Respondent) and Zoran Fotak Respondent (Appellant)

Docket: M53395 And Between Carmela Maria Capone Applicant (Responding Party) and Zoran Fotak Respondent (Moving Party)

Counsel: Zoran Fotak, acting in person Harold Niman and Jen-Yii Liew, for the respondent (C70124) / responding party (M53395)

Heard: May 19, 2022

On appeal from the order of Justice Sharon Shore of the Superior Court of Justice, dated December 10, 2021, with reasons reported at 2021 ONSC 7992.

Costs Endorsement

[1] On May 31, 2022, the panel dismissed Mr. Fotak’s appeal from a motion judge’s dismissal of a motion to stay ten previous court orders. The panel also dismissed Mr. Fotak’s motion to “quash” the decision of a case management judge which had found Ms. Capone’s materials to have been properly served.

[2] The panel’s decision stated that costs would go to the respondent. The parties were invited to provide costs submissions relating to the quantum of the appeal and motion costs within 14 days of the release of the decision. Ms. Capone’s submission was received on June 14, 2022. No submissions from Mr. Fotak were received within the time frame set out in the decision.

[3] Ms. Capone seeks costs of $20,191.12 on a full indemnity basis. In the alternative, Ms. Capone seeks substantial indemnity costs of $16,152.89. She submits that the preparation required for the appeal and motion was extensive. She further argues that Mr. Fotak’s conduct in relitigating matters that have already been settled, breaching court orders and pursuing appeals with little chance of success has resulted in Ms. Capone incurring “enormous fees” to defend the support orders at issue on the appeal.

[4] Rule 24(12) of the Family Law Rules, O. Reg. 114/99, sets out factors to guide this court’s analysis in fixing the quantum of costs in a family law appeal: see Selznick v. Selznick, 2013 ONCA 35, at para. 3. Rule 24(12) provides:

24 In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party's behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

[5] In light of these criteria, and bearing in mind the touchstone considerations of reasonableness and proportionality (Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12, leave to appeal refused, [2019] S.C.C.A. No. 82), we conclude a global costs award covering the appeal and the motion in the amount of $15,000 is appropriate.

[6] Mr. Fotak shall pay costs in the amount of $15,000, inclusive of applicable taxes and disbursements, to Ms. Capone.

“G.R. Strathy C.J.O.”

“L. Sossin J.A.”

“L. Favreau J.A.”