ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-08-63549-00
DATE: 2012-03-30

BETWEE N:

DAVID DEL MASTRO

Catherine Willson, for the Applicant

Applicant

• and -

CHEMAYNE MICALLEF DEL MASTRO

Marvin Kurz, for the Respondent

Respondent

HEARD: December 15, 2011

ENDORSEMENT RE COSTS

Van Melle, J.

[ 1 ] On February 10, 2012 I dismissed David’s motion for a variation. I granted Chemayne’s motion for contempt insofar as David had not complied with my Order of September 16, 2011 wherein I ordered, inter alia , sale of the matrimonial home.

[ 2 ] Chemayne asks for costs on a substantial indemnity basis of the motion before me and the November 22, 2011 attendance. In requesting costs on a substantial indemnity basis, Chemayne relies on her substantial success on the motion, the importance of the motion to her and the bad faith and unreasonable behaviour of David.

[ 3 ] I granted Chemayne her costs on a substantial indemnity basis in relation to the motion of September 16. On that occasion she had served a very reasonable Offer to Settle. No offer was served in relation to this motion.

[ 4 ] Chemayne seeks total fees and disbursements with HST of $36,015.08. She seeks costs on a partial indemnity basis including fees and disbursements and HST in the amount of $28,794.38.

[ 5 ] David takes the position that the amount of time spent by counsel preparing materials for the motion appears to be minimal.

[ 6 ] I do not accept David’s submission that the costs should be fixed and payable in the cause in the amount of $4,000.00.

[ 7 ] Although Chemayne’s motion to have David’s pleadings struck was dismissed, it was none the less an appropriate request because David is and remains in breach of various court orders. The dismissal of that part of her motion has no bearing on her entitlement to costs.

[ 8 ] With all due respect to Justice Mossip, her decision of May 7, 2009 to award no costs has no bearing on my costs decision at this time.

[ 9 ] In my view, given my comments in September 2011, it should have been obvious to David that he would not succeed on this motion, unless he had very compelling evidence to support his motion, which he did not.

[ 10 ] I accept that the time and preparation required by Chemayne’s counsel would have been less for the arguing of this motion than it was for the September 2011 motion which raised almost identical issues.

[ 11 ] In my view, the amount of $15,000.00 all inclusive is an appropriate amount for costs in all the circumstances and I so order.

Van Melle, J.

Released: March 30, 2012

COURT FILE NO.: FS-08-63549-00
DATE: 2012

SUPERIOR COURT OF JUSTICE - ONTARIO RE: DAVID DEL MASTRO v. CHEMAYNE MICALLEF DEL MASTRO BEFORE: VAN MELLE J. COUNSEL: David Del Mastro, self Marvin Kurz, for the Respondent COSTS ENDORSEMENT Van Melle J.

Released: March 30, 2012