COURT FILE NO.: FC-08-028967-00

DATE: 20121119

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FRANCO RUFFOLO, Applicant

AND:

MICHELLE DAVID, Respondent

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL: Applicant, Self-Represented

Respondent, Self-Represented

HEARD: By written submissions

ENDORSEMENT

[ 1 ] This is the ruling on costs following the trial of this proceeding.

[ 2 ] In determining the cost of the proceeding, the jurisdiction of the court is set out in section 131(1) of the Courts of Justice Act , R.S.O. 1990, c. C.43 as follows:

(a) 131 (1) Costs - Subject to the provisions of an Act or rules of court, the cost of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent the cost shall be paid.

[ 3 ] The Rule applicable to costs in the Family Court is Rule 24, and the factors that the court must consider are set out in Rule 24(11). However, wide discretion in fixing costs remains with the court, bearing in mind the principles enunciated in the leading Ontario cases such as Anderson v. St. Jude Medical Inc . (2006), 264 D.L.R. (4th) 557 (Ont. Div. Ct.) , Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.) , and Clarington (Municipality) v. Blue Circle Canada Inc ., 2009 ONCA 722 , 100 O.R. (3d) 66.

[ 4 ] Rule 24(11) of the Family Law Rules provides:

A person setting the amount of costs shall consider,

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) 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;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[ 5 ] The rulings made at trial were as follows:

(1) The equalization payment was calculated to be $367,975 owing by Ms. David to Mr. Ruffolo, which amount has been paid in full;

(2) Mr. Ruffolo shall pay the sum of $49,116.54 to Ms. David within twenty days of the release of this decision, in default of which post-judgment interest pursuant to the Courts of Justice Act shall accrue on any amounts remaining unpaid, from the date of this order;

(3) Ms. David’s ownership in the Florida property shall be free and clear of any claim made by Mr. Ruffolo in this proceeding, and she has the sole authority to deal with that property as she deems fit;

(4) each of the parties shall be entitled to retain the items of personal property now in his or her possession, free from any claim made by the other in this proceeding;

(5) for the period August 1, 2007 to March 1, 2011 inclusive, lump sum child support owed by the respondent to the applicant, inclusive of the arrears of $4,000 which were shown as owing on the FRO statement of arrears dated March 7, 2011, is fixed in the amount of $6,920;

(6) commencing April 1, 2011 and thereafter on the first day of each month the respondent shall pay child support to the applicant for the two children of the marriage in the amount of $1,964, based on an imputed income of $147,631;

(7) any payments collected by FRO after March 1, 2011 to the date of this order are to be credited against the child support accruing under this order;

(8) Mr. Ruffolo shall provide Ms. David with his complete income tax return as filed and his notice of assessment for each subsequent year by June 30 of the following year, commencing for the taxation year 2011;

(9) Mr. Ruffolo shall pay spousal support to Ms. David for the period August 1, 2007 to and including December 1, 2011 fixed in the amount of $115,628 by way of lump sum payable immediately;

(10) commencing January 1, 2012 and thereafter on the first day of each month Mr. Ruffolo shall pay spousal support to Ms. David in the amount of $2,100 per month;

(11) this order is subject to variation in the event of a material change in the income of the recipient or the payor, but shall not be subject to review before August 1, 2015;

(12) Ms. David shall provide Mr. Ruffolo with her complete income tax return as filed and her notice of assessment for 2009 and 2010 as soon as such documents are available to her;

(13) Ms. David shall provide Mr. Ruffolo with her complete income tax return as filed and her notice of assessment for each subsequent year by June 30 of the following year;

(14) The spousal support payment shall be indexed on an annual basis;

(15) Mr. Ruffolo shall obtain and maintain a life insurance policy having a face value of at least $250,000, naming Ms. David as the irrevocable beneficiary, and shall provide proof of compliance with this order to the respondent's lawyer by no later than February 28, 2012; and

(16) Ms. David’s claim for s.7 expenses was dismissed.

[ 6 ] Mr. Ruffolo appealed certain aspects of the trial judgment and was successful in one respect, that being that the equalization payment was recalculated such that Ms. David is to pay Mr. Ruffolo the sum of $63,821.50.

[ 7 ] The Court of Appeal ordered that there were to be no costs of the appeal.

[ 8 ] Mr. Ruffolo made a number of comprehensive offers in an effort to settle this matter. He has advised that he received no written response to any of them. Although Ms. David's submissions refer to a number of settlement meetings that her former lawyers convened, she has not provided the court with any written offer to substantiate her claim that she made reasonable efforts to compromise and settle the claims made by the parties in this proceeding.

[ 9 ] Mr. Ruffolo made his first offer on November 24, 2008, which remained open for acceptance until December 16, 2008. A slightly revised offer was thereafter made on an undetermined date. A third offer was made on May 14, 2009. The fourth offer was made on September 4, 2009. Mr. Ruffolo's fifth offer was made on November 11, 2010 and remained open for acceptance until the commencement of trial.

[ 10 ] Although this last offer met most of the criteria in Rule 18(14), it cannot be said that Mr. Ruffolo achieved an equivalent or better result at trial. What can be said about the offers, at least for the first four, is that none was manifestly unreasonable. While each differ, Ms. David had at times been offered sole custody, child support of $2,500 per month, spousal support of $1,500 per month, an equalization payment owing to Mr. Ruffolo of $91,500, an invitation to attend mediation, and that Mr. Ruffolo would have access every other weekend, although not all of these terms were contained in the same offer. Ms. David failed to be responsive to any of these overtures to settlement.

[ 11 ] On the other hand, Mr. Ruffolo, despite his attempts at settling the matter out of court, frustrated the prospects of any settlement by downplaying his income for support purposes, a fact determined at trial. Much of the trial time and evidence taken was focused on proving his income for support purposes.

[ 12 ] Both parties have incurred legal fees, out-of-pocket expenses, and significant personal costs as result of this proceeding. Neither made sufficient concessions to avoid the trial.

[ 13 ] Ultimately, the results of the trial were mixed, although on balance Ms. David was probably the party whose claims were the most successful overall. However, due to her apparent lack of settlement efforts, I declined to grant any costs in her favour.

[ 14 ] This court orders that each party shall bear his or her own costs of this proceeding.

HEALEY J.

Date: November 19, 2012