Muscillo v. Muscillo, 2014 ONSC 4542

COURT FILE NO.: FS-13-78907

DATE: 20140801

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Katherine Muscillo and Angelo Muscillo

BEFORE: D.L. Edwards J.

COUNSEL: Harold Niman, for the Applicant

Valois P. Ambrosino, for the Respondent

COST ENDORSEMENT

1On May 15, 2014, I released an endorsement with respect to two motions. The motion brought by Angelo was entirely dismissed. With respect to the motion bought by Katherine, I granted certain relief on consent, dismissed portions of the motion, and granted relief with respect to interim spousal support, interim child support and interim disbursements, although not in the amounts requested by her.

2I requested cost submissions. I have now had an opportunity to review the same.

3Katherine seeks her costs on a full recovery basis in the amount of $29,268.97 or, in the alternative, on a partial recovery basis in the amount of $18,000.

4Angelo submits that there was divided success and cost should not be awarded to either party.

5I do not agree that success was mixed. Katherine successfully defended Angelo's motion. With respect to her motion, she was substantially successful in obtaining relief, although not necessarily in the quantum sought by her.

6Katherine did present an offer to settle. I am satisfied that she did not obtain relief on at least as favorable terms as the offer. Therefore, I need not consider whether the offer was served in accordance with the Family Law Rules.

7Angelo submits that Katherine's unwillingness to attend mediation or arbitration without precondition should be a factor that I consider in this cost award. Based upon the facts, I do not agree and I am satisfied that it was necessary for Katherine to bring this motion in order to obtain the relief that she sought.

8Angelo also submits that Katherine's conduct was unreasonable and her unwillingness to negotiate a reasonable interim settlement is a factor which I should consider. I am satisfied that Katherine's conduct was not unreasonable and that this motion was necessary.

9In fact, I find that Angelo’s conduct, in bringing a motion to require Katherine to remain in the matrimonial home with the children, a residence being part of the land parcel owned by Angelo's parents, and upon which Angelo’s parents’ home was located, was unreasonable.

10The general principle is that the successful party is entitled to his or her costs. Clearly, Katherine was the successful party. The issue is whether she is entitled to full indemnity or partial indemnity.

11I am satisfied that the hourly rate charged and the time spent by Katherine’s counsel are appropriate.

12I am satisfied that Angelo’s conduct was not sufficiently unreasonable to warrant full indemnity costs, and I order that Angelo pay to Katherine the sum of $18,000.00 all-inclusive as costs of these motions.

D.L. Edwards J.