SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-02-013483-01
DATE: 20120514

RE: DULCIE MARY IERULLO, Applicant

AND:

**ANTHONY JOSEPH IERULLO, Respondent

BEFORE: The Honourable Madam Justice L.M. Olah

COUNSEL: The Applicant is Self-Represented
C. MacLean, for the Respondent

HEARD: By written submissions

COSTS ENDORSEMENT

[ 1 ] A review of the file discloses that the costs submissions, properly served on the applicant by the respondent on July 28, 2011, were misplaced in the Barrie Court House.

[ 2 ] As a result, I gave both parties a further opportunity to submit their costs submissions.

[ 3 ] Despite my ordered extension for the submissions of costs, the applicant has not provided her costs submissions.

[ 4 ] The applicant commenced her motion to change in April 2010. She moved to western Canada and failed to deal with the litigation in a timely or reasonable manner.

[ 5 ] Further, she did not respond to any of the respondent’s motions. She breached court orders, including the production of financial documents, payment of costs ordered and payment of a security for costs.

[ 6 ] Such inaction by the applicant required the respondent to proceed with a summary judgment motion.

[ 7 ] The applicant sent the respondent’s counsel many emails from March 14, 2011 to June 28, 2011, many of which were extremely lengthy, and, in excess of sixteen pages.

[ 8 ] The applicant’s behaviour increased costs significantly.

[ 9 ] The respondent was entirely successful in his objection to the applicant’s request to have her motion proceed via telephone, and, the respondent was entirely successful in his summary judgment motion which was brought at the direction of the case conference justice.

[ 10 ] On the return of the summary judgment motion the applicant failed to serve any responding material.

[ 11 ] As a result, the respondent was successful in obtaining a final order with respect to custody. The respondent was successful in setting off his ongoing spousal support obligation pursuant to the minutes of settlement against the overpayment of child support from February 1, 2010 to December 1, 2010 and having the applicant’s motion to change dismissed in its entirety.

[ 12 ] On the return of the summary judgment motion on June 28, 2011, the applicant’s request for an adjournment of the summary judgment motion was heard over the telephone. The applicant was permitted to make her submissions via telephone from British Columbia. However, her request for the adjournment was denied. And, she was given the opportunity to stay on the telephone and listen to the proceedings, which she rejected. The applicant chose to hang up the phone and not listen to the submissions or the court’s decision because, according to what she told the court when she was still on the telephone, she was going to appeal the decision anyway. Ultimately, the applicant chose not to file any responding materials to the summary judgment motion and chose not to participate in the motion to the extent that was offered to her. Essentially, the summary judgment motion was uncontested.

[ 13 ] In light of the above, pursuant to Rule 24, the respondent was wholly successful in his summary judgment motion.

[ 14 ] The respondent seeks costs from the initiation of the motion to change for the respondent’s and his counsel’s appearances on various returns including case conferences and motions. On March 23, 2011 the respondent successfully obtained a costs order in the amount of $14,000. Accordingly, and pursuant to the case of Rosen v. Rosen [1] , I will not address these costs. However, pursuant to the order of Justice Gilmore on April 29, 2011, costs were reserved to the summary motions judge, and, I intend to award costs from that date to and including the date for the motion for summary judgment.

[ 15 ] Having reviewed the offer to settle, clearly, the respondent achieved success to a greater extent than did the applicant. Further, in light of the applicant’s history of non-compliance with court orders, full indemnity costs are appropriate in the amount of $14,000 inclusive of HST and disbursements.

[ 16 ] Pursuant to Rule 24, an order will go that the applicant pay to the respondent the sum of $14,000 as and for costs, within 30 days of the release of this costs endorsement.

OLAH J.

Date: May 14, 2012

[1] Rosen v. Rosen , 2005 480 (ON SC)