BARRIE COURT FILE NO.: FC-11-1503-00

DATE: 20120103

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARTHA ANN MACDONALD CAPIRCHIO, Applicant

AND:

DINO CAPIRCHIO, Respondent

BEFORE: McDermot J.

COUNSEL:
Ms. Brigitta D. Tseitlin, Counsel, for the Applicant
Mr. Eli Seth Antel, Counsel, for the Respondent

HEARD: By written submissions

ENDORSEMENT

[ 1 ] On November 10, 2011, I heard argument on an urgent motion brought by the applicant for temporary custody of the children. She had removed the children from the matrimonial home several days earlier, and moved into her own residence with the children. She offered her husband very limited access with the children and based her position largely on several incidents where her husband had acted inappropriately; on at least one incident, the children were present. Mr. Capirchio brought a counter-motion for shared custody and a nesting arrangement.

[ 2 ] The matter was brought on an emergency basis prior to a case conference. Both parties acknowledged urgency; the urgency was largely caused by the applicant’s actions in removing the children from the home contrary to a long standing status quo.

[ 3 ] Essentially, I agreed with the husband’s submissions that a nesting arrangement be put into place, with the children residing in the home, and each parent moving in and out. I also ordered child support as well as an order that the respondent pay the costs of the matrimonial home.

[ 4 ] Unfortunately, due to a misunderstanding, both parties left without arguing costs. I permitted the parties to provide written submissions which have now been filed. The respondent now seeks costs of $6,410 for the motion on a substantial indemnity basis on the basis of both the result and as well on the conduct of the applicant.

[ 5 ] Neither party submitted an offer to settle on the motion. The issues accordingly are the result on the motion as well as the issue of applicant’s misconduct leading to the necessity for the motion to be argued.

[ 6 ] Ms. Tseitlin for the respondent states that success was divided; accordingly no costs are payable. She states that the move was precipitated by the respondent cutting off the applicant from funds, which created a “dire need for support” which had to be argued. She states that the applicant had caused the problems by making threats against an individual that the respondent is seeing; that occurred in front of the children. Charges were laid resulting in the necessity for the move.

[ 7 ] I disagree with the submission that success was divided. The respondent had substantial success, and the applicant’s conduct was problematic at best. The respondent is entitled to costs for the reasons set out below.

[ 8 ] Under Rule 24(1) of the Family Law Rules , costs follow the event, and a successful party is presumed to be entitled to costs. I may take into account unreasonable conduct of either party (Rule 24(4)) and if success is divided, I may apportion costs as appropriate (Rule 24(6)). Under Rule 24(11), I may take into account the “importance, complexity or difficulty of the issues” as well as “the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order”.

[ 9 ] I can also take into account the conduct of the parties to this proceeding: see Rule 24(8) of the Family Law Rules. Under that rule, I may order full indemnity costs payable forthwith if a party has acted in “bad faith.” Moreover, I may generally take into account under Rule 24(11) “the reasonableness or unreasonableness of a client’s behaviour” in assessing costs.

[ 10 ] I firstly find that the respondent did have substantial success in this matter. Although support was not a “given” as submitted by respondent’s counsel, it was a minor part of the argument. Respondent’s counsel agreed that the income of the respondent should be grossed up for support purposes and did not vigorously argue support. On the other hand, custody was argued at length and was the major reason for the motion being brought. If the children had remained in the home as I ordered, there would have been no reason for the motion. Furthermore, the applicant had argued that the respondent should have limited access based upon an incident which concerned the adults and not the children. The respondent was clearly the successful party in this motion.

[ 11 ] This brings us to the second issue, which is the conduct of the parties. In this matter, the applicant had left the children alone with the respondent for an eight day holiday; within days of returning from that holiday, she removed the children from the home and took the position initially that the respondent should have supervised access only. The position taken by the respondent was both unwarranted and inconsistent and her actions in arbitrarily removing the children from the home fall within the definition of “unreasonable conduct” as defined by Rule 24(11). As I stated in my decision, I was “as impressed with the fact that the proposal of the respondent includes extensive time sharing with the applicant as I [was] not with the restrictions on time sharing by the respondent proposed by the applicant.” As stated by N.J. Mossip J. in Van Rassel v. Van Rassel , 2008 56939 (ON SC) , [2008] O.J. No. 4410 at para. 9 , in noting that the mother was unable to see her husband’s relationship with the children as being equal to her own, “If she had been able to do that, I have no doubt this application would not have proceeded.” I echo those comments in the present case.

[ 12 ] As such, the respondent is entitled to costs from the applicant. The respondent seeks substantial indemnity costs in the present case; he states that he is entitled to this because of the misconduct of the applicant. I agree with Ms. Tseitlin that the time spent by the respondent’s solicitor appears to be somewhat excessive for a motion of this nature. However, I do agree that costs should be on a greater scale than partial indemnity due to the conduct of the applicant.

[ 13 ] Accordingly, based upon the costs outline provided by the respondent’s counsel, I find that the respondent is entitled to costs payable by the applicant in the amount of $4,500 inclusive of HST and disbursements. Costs shall be payable by the applicant to the respondent within 60 days.

MCDERMOT, J.

Date: January 3, 2012