SUPERIOR COURT OF JUSTICE
CITATION: Chiaramonte v. Chiaramonte, 2015 ONSC 1374
COURT FILE NO.: 10-7411M
DATE: 20150304
ONTARIO
B E T W E E N:
ANNA CHIARAMONTE
Lorne Wolfson, for the Applicant
Applicant
- and -
ROSARIO CHIARAMONTE;
R. A. CHIARAMONTE DENTISTRY PROFESSIONAL COPORATION;
1298443 ONTARIO LTD.;
MONTCHIARA INVESTMENTS LTD.;
TRIDENT SERVICES LLC;
CHIARA COMPANY LLC;
LEGENDS H.H.I. LLC; and
TITAN SERVICES LTD.
Gary Joseph and K. Maurina, for the Respondent
Respondents
COSTS ENDORSEMENT
Justice Thomas A. Bielby
[1] Pursuant to my Ruling on the applicant’s motion to strike, released January 8, 2015, both parties have filed their respective submissions on costs.
[2] The applicant seeks costs related to the motion in the amount of $76,995.49 on a full indemnity basis.
[3] The respondent submits the costs to be awarded should not exceed $10,000.00.
[4] The applicant realized a substantial level of success. The applicant submits that, as a result of the respondent’s bad faith, costs should be awarded on a full indemnity basis.
[5] The respondent submits that his actions do not amount to bad faith or to the level of bad faith which would result in a full indemnity order.
[6] It is submitted by the respondent that normally costs are awarded at a partial indemnity level.
[7] In regards to bad faith, I am cognizant of C.S. v. M.S. [O.J.] No. 2164, a decision of C. Perkins J. of the Ontario Superior Court of Justice. Paragraphs 16 and 17 therein describe bad faith as applying or conscious doing of a wrong with the intention to inflict financial or emotional harm.
[8] In Ontario (Director, Family Responsibility Office) v. Giant 2003 64323 (ON SC), [2003] O.J. No. 1931, Blishen J. of the Superior Court of Justice, at para. 7. Noted that bad faith can be established by the intentional break of a court order with a view to achieving another purpose.
[9] My ruling in this mater notes the number of court orders which have been breached by the respondent, even orders made on consent. A finding was made that the respondent has wilfully failed to complete his obligation and that his conduct has caused the applicant to exhaust her financial resources.
[10] At paragraph 56, I stated, “It may very well be that it is the respondent’s intention to ruin the applicant financially.”
[11] I find, for cost purposes, the respondent did act in bad faith. He wilfully disregarded orders and his conduct has delayed this litigation causing the applicant to incur substantial legal fees. While I do not make a conclusive finding that it was the respondent’s intentional to ruin the applicant financially, clearly his conduct and failure to comply with his obligations has caused the applicant financial ruin.
[12] Rule 24(8) of the Family Law Rules states: “If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.”
[13] Having made a finding of bad faith, I am compelled to order costs on a full recovery basis and pursuant to Rule 24(1), the applicant shall be awarded costs on that scale.
[14] The costs to be awarded are in regards to the costs incurred in preparing and serving the motion material, various court attendances related to the motion preparation, and argument.
[15] However, I find the costs sought by the applicant to be excessive. The argument on the motion took no more than one-half day.
[16] The time sheets filed by the applicant commence April 4, 2014, six months before the motion was served. The respondent notes that $39,000.00 in fees is claimed before the motion material was started in October 2014. My review of the time sheets support October 22, 2014 is the first reference to “drafting a motion”.
[17] Further, even though the motion was heard on December 11, 2014, I cannot understand how, as claimed by the applicant, that 31.7 hours were spent on this matter between December 8, 2014 and January 27, 2015.
[18] The respondent submits his legal fees regarding the motion are less than $20,000.00 and submits proportionality must be considered.
[19] Time spent on this file, not specifically related to the motion, can be addressed at the completion of the trial.
[20] Taking all the circumstances into account, I will award the applicant $20,000.00 in fees, disbursements of $5,170.60, plus HST on both fees and disbursements.
Justice Thomas A. Bielby
Released: March 4, 2015
CITATION: Chiaramonte v. Chiaramonte, 2015 ONSC 1374
COURT FILE NO.: 10-7411M
DATE: 20150304
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ANNA CHIARAMONTE
Applicant
- and –
ROSARIO CHIARAMONTE;
R. A. CHIARAMONTE DENTISTRY PROFESSIONAL COPORATION;
1298443 ONTARIO LTD.;
MONTCHIARA INVESTMENTS LTD.;
TRIDENT SERVICES LLC;
CHIARA COMPANY LLC;
LEGENDS H.H.I. LLC; and
TITAN SERVICES LTD.
Respondents
COSTS ENDORSEMENT
Bielby J.
Released: March 4, 2015