Siciliano v. Siciliano, 2012 ONSC 5276

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 03-FL-1205-1
DATE: 2012/09/19

RE: James John Siciliano, Applicant

AND

Mary Elizabeth Siciliano, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL:
Tania Pompilio, for the Applicant
Peter Liston, for the Respondent

HEARD: September 13, 2012

DECISION ON COSTS

1The parties have presented their submissions with respect to costs pursuant to my Endorsement of July 11, 2012 regarding the Motion to Change.

2Mr. Siciliano is seeking costs on a “substantial indemnity” basis of $21,984.21. Ms. Siciliano asks me to dispense with costs entirely.

3I have assessed the issue and the parties’ positions in light of Rule 24, and in particular sub-rules (1) and (4) through (11).

4Regarding sub-rules 24(1) and (6), Mr. Siciliano was entirely successful at the hearing and is presumed to be entitled to costs.

5The successful party behaved reasonably throughout. Both sides were well prepared for the hearing. I did not find any bad faith on the part of a party to the level that would merit a full recovery of costs. The hearing was run efficiently by counsel. As such none of sub-rules 24(4), (7), (8), and (9) impact on my decision.

6This leaves me to consider the factors in sub-rule 24(11). In looking at 24(11)(a), the issues in this hearing were not particularly complex. In looking at reasonableness in 24(11)(b) (and the criteria in 24(5)), at first glance Ms. Siciliano’s position was unreasonable. The relief obtained is the same as was requested in the original application, and is very similar to what was granted at the contested adjournment on application on June 5, 2012. Her approach in the case was to blame others for the family problems rather than deal with the practical realities of the current situation.

7On the other hand, Ms. Siciliano points out that the net effect of the relief requested in the Motion to Change was to end all contact between mother and child. She notes that is an extreme remedy, and submits that she cannot be faulted as a mother for refusing to agree or for conducting a vigorous defence. This point is valid, and in light of it I do not find that the mother’s overall behavior in the case was unduly unreasonable.

8Regarding sub-rules 24(11)(c) through (e), Ms. Pompilio on behalf of Mr. Siciliano has submitted a Bill of Costs calculated both on a full recovery and a substantial indemnity basis. I have not in my analysis made any finding that the costs should be awarded on a scale higher than the generally intended partial indemnity basis: see Cook v. Cook , 2012 ONSC 1141 , at paragraph 24 . Also, I am not awarding costs for preliminary steps (conferences and motions) that have been addressed by another judge where the costs have not been reserved to trial: see Islam v. Rahman , 2007 ONCA 622 , 41 R.F.L. (6th) 10. As clarified in Houston v. Houston , 2012 ONSC 233 , (2012) 12 R.F.L. (7th) 115 (Div.Ct.), steps not requiring any form of judicial intervention, such as the preparation of pleadings, are not covered by this rule. I note that costs on the motion of June 5, 2012, were specifically reserved to me and are a substantial part of the award.

9Regarding sub-rule 24(11)(f) (“any other relevant matter”) it is well established (for example see Murray v. Murray (2005), 2005 46626 (ON CA) , 79 O.R. (3d) 147 (C.A.)) that this can include taking into account the financial situation of both parties. Mr. Siciliano’s Financial Statement sworn September 16, 2011, shows that he earns an income of approximately $246,000. He pays child support to Ms. Siciliano for the other child in her home of approximately $1,000 per month, and spousal support to her of $2,000 per month. Ms. Siciliano per her Financial Statement dated December 8, 2011 earns approximately $51,600 per year not including the support income. The overall means and needs of both parties have been considered in my decision to award costs on a partial indemnity basis.

10In weighing the factors above and the overriding principle that the goal is to fix costs in a way that is fair to the parties and reasonable in the circumstances (per Murray, supra , and Katz v. Nimelman (2008), 2008 14541 (ON SC) , 54 R.F.L. (6th) 177 (Ont. S.C.J.), I make an award of $12,000 costs to Mr. Siciliano inclusive of disbursements and GST, enforceable as support.