SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: FC-05-1313-01
Date: 20140822

RE: Stella Diane Baldassi, Applicant

AND:

Francesco Santo Baldassi

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL:
O. Khan, Counsel for the Applicant

D.M. Winnitoy, Counsel for the Respondent

HEARD: August 18, 2014

COSTS ENDORSEMENT

[1] The applicant, Stella Baldassi, originally brought a motion returnable January 16, 2014, seeking wide ranging relief, including the setting aside of a Separation Agreement entered into in 2005, equalization of family assets, spousal support, as well as a review of the child support agreement. The matter returned before Justice Vallee, who determined it was not the proper subject matter of a short motion, and assessed costs against the applicant. Those costs have now been paid. The applicant filed a further Notice of Motion seeking an order entitling her to pursue equalization, notwithstanding the issue of the limitation period.

[2] The respondent father opposed the relief sought. Both parties filed extensive affidavits, factums and casebook materials.

[3] Upon the return of the motion, both parties agreed that they would benefit from a case conference conducted that day, and they attended before Justice McDermot for those discussions, however, the matters were not settled at a case conference. When the matters returned before me in the afternoon, it was clear that there was not sufficient time to deal with all of the issues encompassed in the applicant’s motions. In addition, it was open to debate as to whether or not the issue of setting aside the Separation Agreement and reopening the issue of equalization was the proper subject matter of a motion, or whether there were triable issues requiring the court to make findings of fact based on viva voce evidence.

[4] Under the circumstances and to the parties’ credit, they reached temporary Minutes of Settlement on a without prejudice basis. The respondent agreed to pay child support of $1,444 per month commencing September 1, 2014. The parties also agreed to adjourn the other matters to a TMC to a date to be set by the trial coordinator. The applicant was also give leave to bring a further motion to deal with retroactive and ongoing child support, if so advised.

Costs

[5] The issue argued before me was the issue of costs. Mr. Winnitoy requested $7,500, all inclusive for costs on a partial indemnity basis. He acknowledged that his actual costs were higher on a partial indemnity basis, but offered the reduced figure on the basis that some of the work done by him in preparation would be of assistance on a going forward basis. Mr. Winnitoy stressed the importance of dealing with costs at each step of the proceedings, and requested the court to acknowledge that the applicant had in effect, abandoned, at least for the purposes of the motion, her request to have the Separation Agreement set aside at a motion.

[6] Arguing for the applicant, Mr. Khan suggested that the applicant mother had some success on the motion. Child support was increased by a consent order, and other minor relief was granted to the applicant.

[7] The parties spent useful time case conferencing the issues on the motion day. Ultimately, they arrived at a temporary order, increasing child support to the applicant. The applicant’s entitlement to spousal support, either based on the setting aside of the Separation Agreement, or on a Miglin analysis after consideration of the factors in the Divorce Act has not yet been determined. Much of the preparation time by the respondent’s counsel was focused on the issue of the Limitations Act and other factors addressing the issue of setting aside the Separation Agreement. It is clear that this issue could not be determined on a motion and the respondent is entitled to costs for preparation for an issue that was at least temporarily abandoned.

[8] I therefore award costs in favour of the respondent, Francesco Baldassi in the amount of $3,000, payable by Stella Baldassi upon a judicial determination or settlement of the spousal support or equalization issue. These costs are payable forthwith if the applicant abandons her claim for spousal support or equalization. There are important access to justice issues not yet judicially determined. An immediate order for these costs should not act as a barrier to a just determination of these issues.

[9] The balance of costs claimed by the respondent not addressed in these reasons can be reserved to the trial or motions judge.

MULLIGAN J.

Date: August 22, 2014