NEWMARKET COURT FILE NO.: FC-09-33213-00
DATE: 20120712
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CARMINE GARGANO, Applicant
AND:
TERESA GARGANO, Respondent
BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY
COUNSEL: The applicant is self-represented
D. Cohen, for the Respondent
HEARD: By written submissions
COSTS ENDORSEMENT
[ 1 ] This is the ruling on costs in relation to this court’s order released on January 27, 2012 ( 2012 ONSC 667 ), ruling on the respondent Teresa Gargano’s motion.
[ 2 ] The parties were invited to make written submissions as to costs; the applicant declined to do so.
[ 3 ] The respondent seeks costs on a full indemnity basis on the grounds that the applicant and the added respondent, his brother Daniele Gargano, filed for bankruptcy upon receiving the extensive motion filed by Teresa Gargano. Her counsel submits that this was a tactical decision to defeat Teresa Gargano’s property claims. There is insufficient evidence for the court to conclude that the bankruptcy proceeding has been motivated by a desire to avoid the applicant’s obligations, as at paragraph 26 of the endorsement this court stated:
While the bankruptcy of the applicant is of questionable legitimacy based on the evidence currently before the court, it remains to be proven by the respondent that the bankruptcy was undertaken as a tactical manoeuvre. The court must also remain open to the possibility that the applicant's bankruptcy was an unavoidable consequence of the parties having lived above their means during the marriage, and it being the culmination of the financial consequences to the applicant of the separation.
[ 4 ] The respondent served an offer to settle dated December 23, 2011. In terms of Daniele Gargano and the companies that he operates, the result of the motion was more favourable to the respondent than the terms of her offer. Additionally, although properly served Daniele Gargano did not file material and did not bother to appear on the motion, either on his own behalf or on behalf of New Triumph Fine Woodworking.
[ 5 ] The offer to settle as it relates to the relief sought against the applicant is not clearly more favourable than the order made by the court. However, the court granted the respondent the vast majority of the relief for which she argued, and the motion was necessary in order for her to obtain reasonable disclosure and child support from the applicant.
[ 6 ] Having reviewed the respondent’s counsel’s bill of costs, this court orders that:
- Costs of the motion shall be paid to the respondent Teresa Gargano
(i) by the applicant Carmine Gargano, in the amount of $4,000;
(ii) by the added respondents, Daniele Gargano and New Triumph Fine Woodworking, in the amount of $6,000.
- Such costs are an incident of child support and as such are enforceable by the Family Responsibility Office.
HEALEY J.
Date: July 12, 2012