NEWMARKET

COURT FILE NO.: 17794/03-01

DATE: 20140910

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NADINE ELLEN GRAY, Applicant

AND:

MARIO RIZZI, Respondent

BEFORE: The Honourable Madam Justice L.M. Olah

COUNSEL:
C. Goldhart/A. Tint, for the Applicant

P. Cozzi, for the Respondent

HEARD: In writing only

COSTS ENDORSEMENT

[1] Despite the fact that the Respondent was dilatory in pursuing his Motion to Change and in providing timely full and frank financial disclosure, the Respondent was, in large part, successful on his Motion to Change.

[2] Pursuant to rule 24(1) the Respondent is presumptively entitled to his costs of the Motion to Change.

[3] However, the Applicant relies on the decision of Rosenberg J.A. in M.(C.A.) v. M.(D.), 2003 18880 (ON CA), 2003 CarswellOnt 3606 (Ont C.A.), where he stated that “there may be circumstances aside from unreasonableness of the successful party’s conduct that rebuts the presumption”. On this basis, she requests that the Respondent be responsible for her costs of 3 lawyers acting on her behalf, at varying rates. This is not a case where a deviation from the principles enunciated in Rule 24, with respect to success and Offers to Settle, should be considered.

[4] It is true that had the Respondent produced the necessary financial information prior to the initial order, the subsequent proceedings may not have been necessary.

[5] Conversely, once the financial data was produced, the Applicant had an obligation to review the Respondent’s potential for income and provide an Offer to Settle, more in line with the decision. She chose not to.

[6] In face of the Respondent’s Offer to Settle, which was more generous to the Applicant than the terms reflected in the judgment; and, given that the Applicant was awarded costs for the initial order, and other appearances, the Respondent is entitled to modest costs of the Motion to Change.

[7] As there is no indication that at the Case Conference or Settlement Conferences on the Motion to Change were reserved to the trial judge, and there is no clarity in the Bill of Costs with respect to “counselling the client”, and the overlap of the FRO proceedings, motions and conferences, in line with my judgment, I will consider the costs of the trial only.

[8] The Applicant shall pay the Respondent costs of the Motion to Change in the amount of $15,000.00 within 30 days on a partial indemnity basis.

OLAH, J.

Date: September 10, 2014