Chiaramonte v. Chiaramonte, 2015 ONSC 1374

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

1Pursuant to my Ruling on the applicant’s motion to strike, released January 8, 2015, both parties have filed their respective submissions on costs.

2The applicant seeks costs related to the motion in the amount of $76,995.49 on a full indemnity basis.

3The respondent submits the costs to be awarded should not exceed $10,000.00.

4The 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.

5The 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.

6It is submitted by the respondent that normally costs are awarded at a partial indemnity level.

7In 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.

8In 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.

9My 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.

10At paragraph 56, I stated, “It may very well be that it is the respondent’s intention to ruin the applicant financially.”

11I 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.

12Rule 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.”

13Having 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.

14The 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.

15However, I find the costs sought by the applicant to be excessive. The argument on the motion took no more than one-half day.

16The 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”.

17Further, 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.

18The respondent submits his legal fees regarding the motion are less than $20,000.00 and submits proportionality must be considered.

19Time spent on this file, not specifically related to the motion, can be addressed at the completion of the trial.

20Taking 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.