COURT FILE NO.: FS-12-74069-00
DATE: 20130731
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Czeslawa Piekarska v. Zdzislaw Piekarski and Boguslaw Piekarski
BEFORE: Fragomeni J.
COUNSEL: Eva Iacobelli, for the Applicant
Olena Brusentsova, for the Respondent(s)
C O S T S E N D O R S E M E N T
[1] I have now received and considered the costs submissions of counsel. Although success on the issues was mixed, on balance I am satisfied that the wife was more successful when all of the issues are considered in their totality.
[2] The three issues that the Respondents were successful on were the sale of the home, dismissing the wife’s motion to strike their pleadings, and an order that on a temporary basis the son is not entitled to child support. The wife was successful on the following issues:
Although the home was ordered sold, the net proceeds were not ordered distributed to the parties as requested by the Respondents. The net sale proceeds were ordered to be held in trust by the lawyer who has carriage of the sale;
Pending the sale of the home the Respondents were ordered to continue to pay the mortgage, insurance and property taxes;
From the funds remaining in Mr. Marek Tufman’s trust account, the Consent Order of April 19, 2013 relating to payment of the mortgage shall continue so that Mr. Tufman shall continue to make the mortgage payments. The sum of $12,000.00 from the funds being held by Mr. Tufman, representing the husband’s share shall be paid directly to the wife as allocation for spousal support. Any adjustments with respect to this payment to the wife is reserved to trial. The trial Judge can make the necessary adjustments to what is owed to the brother from the net proceeds of the sale of the matrimonial home that reflects the fact that his share of these funds is being depleted to ensure the mortgages do not go into default;
The husband’s position on spousal support was that no spousal support be paid. The Court ordered $1,500 per month with any retroactive adjustments reserved to the trial judge;
The sum of $12,000.00 paid to the wife from the proceeds being held by Mr. Tufman are allocated in these interim spousal support payments. Those funds will represent 8 months at $1,500.00 per month. In the event that these funds are exhausted prior to the home being sold or this matter being tried, the interim spousal support payments shall be made from the proceeds of the sale of the matrimonial home. Any adjustments are reserved to the trial Judge;
A restraining Order shall issue restraining the Respondent/husband from molesting, annoying or harassing the Applicant;
Pending the trial of this matter the parties shall not deplete or transfer any property in their respective names.
[3] I am satisfied that the wife is, therefore, entitled to a portion of her costs for the long motion in light of her success on these issues. I take into account, however, the husband’s success on the three issues I identified earlier. Those issues were important to the Respondents, especially the motion to strike their pleadings. In addition to that a significant amount of the hearing time was spent on the issues surrounding the sale of the home and the wife’s claim for exclusive possession. The wife was not successful in her position for exclusive possession.
[4] I am not, however, persuaded that the wife is entitled to costs on a substantial indemnity basis. No formal offers were exchanged between the parties. On the record before me I cannot find and conclude that the Respondents acted in bad faith or that their positions at the long motion on the various issues were unreasonable and totally without merit. Although not successful on some issues, their conduct and positions taken in opposing the relief requested does not rise to a level that points to costs being awarded on a substantial indemnity basis.
[5] On October 9, 2012 Justice Van Melle conducted a Case Conference and reserved costs of that day. On November 15, 2012 Justice Skarica heard a Dispute Resolution Conference and an order was made on Consent with costs reserved to the hearing of the long motion.
[6] I am not prepared to award costs for either the Case Conference attendance or the attendance before Justice Skarica at which time a consent order was made.
[7] I am restricting the quantum of the award of costs to the long motion.
[8] Rule 24 of the Family Law Rules deals with costs. Rule 24(6) and (11) state:
(6) If success in a step in a case is divided, the court may apportion costs as appropriate.
(11) 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.
[9] Rule 57.01(1)(0.b) of the Rules of Civil Procedure states:
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
[10] I have attempted to isolate the work done as set out in the respective Bill of Costs to the work associated with the long motion.
[11] Counsel for the Respondents charges an hourly rate of $200 per hour on a partial indemnity basis and $250 on a substantial indemnity basis.
[12] Counsel for the wife charges $325 per hour on a substantial indemnity basis. Ms. Eva Iacobelli was called to the bar in 1999.
[13] On a substantial indemnity basis the Respondents’ approximate costs for the long motion are $13,500 plus H.S.T. and disbursements. On a substantial indemnity basis the Applicant’s approximate costs are $18,000 plus H.S.T. and disbursements.
[14] I acknowledge that success on the various issues was mixed. However, the order allows the wife to be paid spousal support and was granted access to the Tufman funds and the funds from the sale of the home to pay the spousal support. The home was ordered sold but the Respondents were not successful in their position regarding the distribution of the net proceeds of sale. Further, the Respondents were not successful in their position regarding the distribution of the funds being held by Mr. Tufman.
[15] With respect to the matrimonial home they are required to continue to pay the mortgage, insurance and property taxes.
[16] In all of the circumstances, I am prepared to award a portion of the wife’s costs to her on a partial indemnity basis. In all of the circumstances I am prepared to fix those costs at $10,000.00 all inclusive.
ORDER TO ISSUE:
- That the Respondents shall pay to the Applicant her costs fixed in the sum of $10,000.00 all-inclusive.
Fragomeni J.
DATE: July 31, 2013
COURT FILE NO.: FS-12-74069-00
DATE: 20130731
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Czeslawa Piekarska v. Zdzislaw Piekarski and Boguslaw Piekarski
BEFORE: Fragomeni J.
COUNSEL: Eva Iacobelli, for the Applicant
Olena Brusentsova, for the Respondent(s)
COSTS ENDORSEMENT
Fragomeni J.
DATE: July 31, 2013