COURT FILE NO.: FC-11-1236-00

DATE: 20130408

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RUTH TRIPODI, Applicant

AND:

BRUNO TRIPODI, Respondent

BEFORE: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL: Mark Greenstein, for the Applicant

Respondent unrepresented

HEARD: By written submissions

ENDORSEMENT

[1] On December 13, 2012, I heard a motion brought by the Applicant for several heads of relief. The Applicant requested exclusive possession of the matrimonial home; she also asked for an order striking the Respondent’s pleadings and for a declaration of contempt. As set out in my endorsement dated January 8, 2013, I granted the Applicant exclusive possession of the home; I dismissed her motion for striking of the Respondent’s pleadings and contempt on the basis that the Applicant had not proven a breach of the order. As also requested by the Applicant, I provided her with conduct of the sale of the home.

[2] Both parties now request costs. The Applicant claims costs on the basis of her success on the motion. Ms. Tripodi further requests costs because of the Respondent’s unreasonable conduct; he notes that the Respondent refused to cooperate with the sale resulting in the motion being brought. The Respondent also claims costs because he says that he was “bullied” by the realtors hired by the Applicant; in other words, he relies upon the unreasonable conduct of the Applicant or her agents. No offers were served. It is apparent to me that the costs issues in this matter concern success, divided or otherwise, as well as conduct issues.

[3] In considering costs, under Rule 24(1) of the Family Law Rules,[^1] 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), in fixing the amount of costs, 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”.

[4] I may 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 am obliged to 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 the amount of costs.

[5] In the present case, success was clearly divided. The Applicant obtained an order for exclusive possession of the home and for conduct of the sale. However, the Applicant’s claims for the striking of the Respondent’s pleadings and for contempt were dismissed. If costs were to follow the parties’ respective success, there would be no order as to costs based upon the divided results.

[6] However, there are conduct issues, especially on the part of the Respondent. Had he complied with the consent order for the sale of the home and signed the listing agreement for the sale of the home, the motion would not have been necessary. The motion was, however, argued largely because the Respondent did not cooperate with the sale of the property; as I found in my endorsement, the Respondent attempted to frustrate on an ongoing basis the sale of the property notwithstanding the fact that he had originally agreed to it. The fact that there was no breach worthy of contempt or allowing the striking of pleadings does not take away from the unreasonable conduct of the Respondent resulting in the orders made at the motion for exclusive possession and conduct of the sale.

[7] The Applicant asks for costs because of the bullying he suffered at the hands of the realtors. That was not a finding that I made at the motion and it is not a finding that I am prepared to make now. I did find the realtors at fault by insisting upon the Respondent signing the listing agreement when there was a court order, but that does not constitute unreasonable conduct on the part of the realtors. In any event, even were there a finding of misconduct on their part, this was not misconduct on the part of the Applicant as the realtors were not her agents, but court appointed.

[8] The Applicant shall accordingly have her costs of the motion. Mr. Greenstein asks for costs in the amount of $5,000; in view of the mixed success in the matter, the costs claimed should be reduced. The Applicant shall have her costs of $3,000 for the motion. The amount shall be paid from the Respondent’s share of the net proceeds of the home upon sale.

McDERMOT J.

Date: April 8, 2013

[^1]: O. Reg 144/99