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
[1] On 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.
[2] I requested cost submissions. I have now had an opportunity to review the same.
[3] Katherine 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.
[4] Angelo submits that there was divided success and cost should not be awarded to either party.
[5] I 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.
[6] Katherine 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.
[7] Angelo 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.
[8] Angelo 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.
[9] In 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.
[10] The 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.
[11] I am satisfied that the hourly rate charged and the time spent by Katherine’s counsel are appropriate.
[12] I 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.
DATE: August 1, 2014
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
D.L. Edwards J.
DATE: August 1, 2014