Superior Court of Justice

COURT FILE NO.: FS – 12 – 18244
FS – 13 - 018834

DATE: 20131118

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Maria Alida Ferreira, Applicant

AND:

Joao (John) Carlos Esteireiro, Respondent

BEFORE: Kiteley J.

COUNSEL: Jeanie DeMarco, counsel for the Applicant

Judith M. Nicoll, counsel for the Respondent

ENDORSEMENT AS TO COSTS OF MOTIONS HEARD

SEPTEMBER 24, 2013

[1]. I released reasons for decision on October 9, 2013[^1] and directed counsel to make written submissions as to costs.

[2]. In her submissions, Ms. Nicoll sought partial indemnity costs with respect to both motions in the amount of $4595.95. Ms. DeMarco also sought partial indemnity costs in the amount of $2915.10 respecting the motion for enforcement of costs and $3666.55 respecting the motion for security for costs.

[3]. A review of the submissions indicate that there is considerable conflict and controversy between the parties and between counsel. However, I will focus on the factor most relevant to costs of the motions, namely success.

[4]. The motions brought by the Respondent were both successful. As indicated in paragraph 10, Ms. DeMarco did not challenge the submission that the four requirements of s. 59.6(1) of the Family Law Act had been met. Nor did she object to the form of the order. On that basis the motion to enforce the costs arbitral award should not have been necessary. It was required however because Ms. DeMarco did not consent earlier and because she sought a stay.

[5]. The motion for security for costs was also successful although not in the amount sought by Ms. Nicoll. Part of the basis for that motion was the outstanding costs orders. It was only during submissions that Ms. DeMarco advised that she had given instructions to have a cheque drawn to pay the costs in the amount of $7500. Ms. Nicoll advised that the cheque was received later in the day. It was reasonable for the Respondent to pursue the motion for security for costs for a number of reasons, not the least of which was those outstanding costs orders.

[6]. The Respondent is entitled to partial indemnity costs. Ms. DeMarco challenges the bill of costs yet the total of the accounts in her costs outline exceeds those claimed by Ms. Nicoll from which I conclude that Ms. Nicoll’s bill of costs for fees was reasonable. I agree with Ms. DeMarco that the unexplained disbursements to the arbitrator on July 26th in the amount of $1000 and on September 20th in the amount of $17 should not be allowed.

ORDER TO GO:

[7]. The Applicant shall pay costs to the Respondent of the motions heard September 24, 2013 fixed in the amount of $3578 payable by December 11, 2013.

DATE KITELEY J.

[^1]: Ferreira v Esteireiro 2013 ONSC 6278