Ontario Superior Court of Justice

Barrie Court File No.: FC-10-717-00
Date: 20120222

Ontario
Superior Court of Justice

Between:

Antonio Savoia Applicant – and – Rosa Savoia Respondent

Counsel:
E. Rayson, for the Applicant
J. Craig, for the Respondent

Heard: January 5, 2012

Costs Ruling

Eberhard J.

[ 1 ] On January 5, 2012 I heard a pleadings motion and a several times adjourned substantive motion for support related issues. The substantive motion was for interim relief on a mature file.

[ 2 ] For justice reasons explained, rather than any sympathy for the position put forward by this Applicant Husband, I did not strike his pleadings.

[ 3 ] After release of my ruling there remained the issue of costs. I invited written submissions noting: “the Respondent Wife, having succeeded in the substance of her motion, may submit a written cost memorandum of no more than 2 pages together with a bill of costs and any offers by Feb 1, 2012. The Applicant Husband shall have until Feb.10, 2012 to respond in like manner and the Applicant Wife may reply by Feb 15, 2012. The submissions are to be delivered to the judicial secretary in Barrie.”

[ 4 ] I have reviewed those submissions. The Respondent Wife claims $37,616.66 in full indemnity costs.

[ 5 ] It is pointed out that I omitted to address reimbursement of out of pocket medical expenses. That was by inadvertence. The costs submissions do not specifically request that I deal with that issue omitted in my ruling so I will not do so at this time on my own initiative. Whether I should remains an open question which counsel may address hereafter if they wish.

[ 6 ] A key submission in the Applicant Husband’s costs submissions is that he achieved a finding that he should not pay both support and the home expenses. That was simply never at play in the motion. I agree with the Respondent Wife’s reply submissions that the argument was entirely premised on replacing an obligation to pay direct expenses to a spousal support obligation so that the parties were moving toward separation of their financial interdependence.

[ 7 ] A second submission of the Applicant Husband was that interim disbursement for the expert report upon which the finding of his income turned should not be addressed at an interim stage. Sypher v Sypher, Chaitas v Christopolous .

[ 8 ] This was a mature file in which little could be accomplished by the Respondent Wife on basic issues because of the lack of necessary disclosure. For the distinct step in the proceeding, to move for support at an appropriate level, the expert report was necessary. The alternative was acquiescing to support based on the Respondent Husband’s unsupported assertions as to his income. The proceeding had become protracted already and the interim finding is crucial during this long period until the Respondent Husband generates some other evidence that might potentially persuade a future Trial Judge to different findings. It does not fall from his mouth, so long silent when disclosure was sought, to assert that the Respondent Wife should wait for recovery of a disbursement that was necessary just to get to an interim order.

[ 9 ] This court repeatedly, and through the many opportunities afforded by the conferencing model, emphasizes that frank and complete disclosure is the basis of fair and just result. Those who chose to ignore this imperative must endure the consequences of their choice. One of those consequences is the cost of investigation into the assertions that are unsupported by disclosure.

[ 10 ] By reason of the Respondent Wife’s offer there are insufficient grounds for full indemnity costs. The conduct of the Applicant Husband in the litigation which would have justified striking his pleadings, but for my justice concerns explained in my ruling, do provided grounds for enhanced partial indemnity costs.

[ 11 ] Costs, (including the cost of the disbursement for the expert report) are fixed at $25,000, all in, and enforceable in like manner as support at a rate of no less than $500/month commencing March 1, 2012. Support Deduction order to issue.

EBERHARD J.

Released: February 22, 2012