Court File and Parties

Court File No.: FC-12-1004-00

Date: 20130923

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RAFFAELE CALABRESE, Applicant

AND:

DEBBIE STOKES, Respondent

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

COUNSEL:
C. Warner, for the Applicant

R. Senjule, for the Respondent

HEARD: By written submissions

ENDORSEMENT

Background

[1] On June 27, 2013, counsel for the parties appeared before me to argue a number of issues. I refused to hear the disclosure issues as this would have entailed a lengthy motion, and there were pressing issues including the sale of the home, support and access, all of which had to proceed. As such, I heard argument on the latter issues only.

[2] For some reason, the Respondent Mother, Ms. Stokes, did not request child support but concentrated her argument on spousal support. I ordered child support after imputing income of $65,000 per annum to the Applicant Father, Mr. Calabrese. Once child support was ordered, and based upon the division of the parties’ net disposable income and the Spousal Support Advisory Guidelines, there was then no spousal support payable based upon annual income of $20,000 attributed to the Respondent Mother.

[3] The Applicant Father requested a sale of the matrimonial home occupied by the Respondent and the children. I granted that request based upon the lack of evidence as whether the home was necessary for the children’s best interests and based upon the lack of a plan for an expeditious buy out of the Applicant’s interest in the home. The issue of the Applicant’s interest in the corporate asset in the name of his father would not be sorted out in the near future.

[4] Both parties now request costs, stating that they have each achieved substantial success on the motion. The quantum of costs requested by each party is in the range of $8,000 inclusive of disbursements and HST; both parties request full indemnity costs.

Analysis

[5] 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.”

[6] 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 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.

[7] I note that Mr. Calabrese made an offer to settle the motion. In the event that a party is more successful than his or her offer, I am bound to order costs on a full indemnity basis: see Rule 18(14). Under Rule 18(16), when I am ordering costs, I may further take into account any offers to settle, even if they do not comply with Rule 18(14) as noted above.

[8] It is apparent that both parties achieved partial success at the argument of the motion. The Applicant obtained an order for the sale of the home, but did not receive any sort of distribution of net proceeds as requested. Ms. Stokes obtained long delayed support, but this was child support and not spousal support as requested. However, the real issue was imputation of income to the Applicant which was resisted, and on which Ms. Stokes had success. As well, there was an order to protect the children from drug and alcohol use as well as corporal discipline during access, again not the order requested. Finally, I understand that certain items of disclosure were agreed upon at the motion.

[9] This would normally be a situation where there would be no award of costs based upon the divided success between the parties. The only factors which would allow departure from this principle would be the Applicant’s offer to settle and the conduct of the parties.

[10] Neither party’s conduct was particularly exemplary. Mr. Calabrese was not wholly forthright about his income; then again, neither was Ms. Stokes. The motion brought by the Respondent was a lengthy matter returnable on an open motions list, and she did not serve the Children’s Aid Society which resulted in that portion of the motion being dismissed. I do not find conduct to be a factor in the costs of the motion.

[11] However, Mr. Calabrese served an offer to settle, something not done by the Respondent. Although he did not obtain an order in accordance with his offer to settle, as there was no distribution of funds as contained in the offer, he did achieve success on the primary issue as contained in the offer, being an ordered sale of the matrimonial home.

[12] Rule 18(14) is inapplicable, as the Applicant did not achieve success in accordance with or better than his offer. However, in determining costs, I am going to take the offer into account as I am entitled to do under Rule 18(16).

[13] Accordingly, considering the divided success on the motion, and the Applicant’s offer to settle, the Applicant shall be awarded costs on a partial indemnity basis. The Applicant shall therefore have costs of the motion in the amount of $3,500, payable from the Respondent’s share of the net proceeds upon the closing of the sale of the matrimonial home.

McDERMOT J.

Date: September 23, 2013

[^1]: O. Reg. 114/99