Salituro v. Salituro, 2015 ONSC 3532

BARRIE COURT FILE NO.: FC-13-1718

DATE: 20150601

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARY SALITURO, Applicant

AND:

JOSEPH SALITURO, Respondent

BEFORE: The Hon. Mr. Justice R.E. Charney

COUNSEL: A. Chapman Counsel, for the Applicant

Self-Represented, for the Respondent

HEARD: By Written Submissions

CoSTS ENDORSEMENT

[1] On May 14, 2015 I issued reasons in the above matter, dismissing the Applicant’s motion to find the Respondent in contempt of court as a result of his having breached the Order of Madam Justice Quinlan dated October 30, 2014. As indicated in my reasons, this motion originally was part of a larger motion that was returnable on March 12, 2015, but only part of the motion could be reached that day and the contempt portion of the motion was adjourned to April 30, 2015. The motion resulted in three decisions: (i) the Order of Justice Quinlan dated March 12, 2015 ordering the sale of the matrimonial home under the authority of the Applicant, (ii) the Order of Justice McDermot dated April 9, 2015, ordering the Respondent to pay the Hydro bill and reconnection fee of $350 forthwith, and (iii) my Order dismissing the balance of the Applicant’s motion, which asked that the Respondent be found in contempt of court.

[2] Costs of all three of these proceedings were reserved until today. The Applicant has served and filed submissions, the Respondent has not, although my endorsement of May 15, 2015 invited submissions.

[3] In deciding costs, I begin by noting that the fact that this motion had to be heard over three days, instead of just one day, was not the fault of either party (see para. 4 of my May 14, 2015 decision). Accordingly, I will treat the three days as a single motion, which they really were. Treated as a single motion, I agree with counsel for the Applicant that the Applicant was substantially successful on her motion, even though she did not get all of the relief she sought. She should not be penalized because the contempt portion of her motion had to be adjourned for the reasons set out in Justice Quinlan’s endorsement of March 12, 2015. I also agree that the Respondent acted unreasonably in deliberately breaching Justice Quinlan’s Order of October 30, 2014, which required him to, inter alia, continue paying the ongoing mortgage and expenses of the matrimonial home until the home sale closed. In his affidavit the Respondent acknowledges that he deliberately “put the home into mortgage default” to “drive home the point” that the house had to be sold. Such self-help remedies in disregard of explicit court orders must be discouraged by the court. While this particular breach of a court order may not be subject to sanction by contempt of court, it is subject to sanction by a costs order.

[4] Rule 24 of the Family Law Rules establishes a presumption that a successful party is entitled to costs, and that the conduct of the parties may be taken into account in deciding costs. Based on the fact that the Applicant was substantially successful on this motion, and that the motion was necessitated by the Respondent’s deliberate breach of the court order to pay the mortgage and expenses of the matrimonial home, I conclude that the Applicant is entitled to her costs on a substantial indemnity basis, and costs are fixed at $8206.89.

[5] In her Order of March 12, 2015, Justice Quinlan ordered (para. 4) that the proceeds of the sale of the matrimonial home shall be held in trust until payment figures are confirmed by the Applicant’s counsel. If the sale of the matrimonial home has not closed by the time of this decision, the costs ordered in this decision may be added to the costs held back by the Applicant’s counsel pursuant to para. 4 of the March 12, 2015 Order, and paid from the Respondent’s share of the proceeds of the sale of the matrimonial home.

CHARNEY J.

Date: June 1, 2015