Caparelli v. Caparelli, 2012 ONSC 3532

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-05-1813-2
DATE: 20120621

RE: Chantal Caparelli, Applicant

AND

Pino Caparelli, Respondent

BEFORE: J. Mackinnon J

COUNSEL:
Stephen S. Appotive, for the Applicant
Mark P. Shelston, for the Respondent

HEARD: By Written Submissions

E N D O R S E M E N T R E G A R D I N G C O S T S

1Two motions were heard on April 5, 2012 and decided by Reasons released on April 26, 2012 and May 18, 2012. The Applicant was the successful party on both. The Respondent concedes that she is entitled to costs. The amount of the award is in issue. The Applicant seeks substantial indemnity costs, namely $20,000.00 on a $22,075.00 account. The Respondent submits that costs should provide partial indemnity recovery and suggests that $11,540.00 is a fair and reasonable amount.

2In support of the lower scale of costs, the Respondent correctly notes that he was successful in obtaining an order for custody of Mila. The issue was not conceded by the Applicant for what I would describe as personal rather than legal reasons. I agree that the time spent in this issue should be a factor in reduction of the Applicant’s costs. I assess the appropriate reduction at $1,500.00.

3The Respondent then notes that although the Applicant was successful on the financial issues, there were some variations between her request for relief and the court order. This is correct but overlooks the significant fact that the Applicant’s offer on the financial issues was overall more favourable to the Respondent than the court order.

4The Respondent also submits that there should be some reduction factored in for the time and charges expended by the junior lawyer and law student on the Applicant’s case. I have reviewed the Bill of Costs in this regard and did observe some overlap in some services rendered. With respect to the junior lawyer, this amounted to 2.6 hours. With respect to the student, this amounted to 1.5 hours. I have factored reductions in for these amounts.

5In addition to the overall success of the Applicant, the Respondent’s litigation conduct is an important factor here. He had disobeyed a previous order to seek counseling to which he had consented. That order was made specifically to address his previous alienating behaviour towards the children for whom he now sought the appointment of the OCL in relation to his application for access to them. I found it audacious that his response to his non-compliance was to say that if the OCL determined that the children wanted to see him, and he still did not comply with the outstanding order, the trial judge could take his non-compliance into account.

6The facts with respect to the Applicant’s claim for one half of the equity in the former matrimonial home are very similar. The Respondent consented to an order that the Applicant should receive one half the net proceeds of sale and then misled her with respect to the calculation of the net proceeds, to his advantage.

7For these reasons, I assess the Applicant’s entitlement to costs in the amount of $18,000.00 on an all inclusive basis. I order that these are payable forthwith and, in any event, before the Respondent takes another step in the case.

J. Mackinnon J