Cozzi v. Smith, 2015 ONSC 3626

Court File No.: FC-04-20255-02

Date: 2015-06-05

Corrected Date: 2015-06-16

Superior Court of Justice - Ontario

Re: Peter Brian Cozzi, Applicant

And: Miranda Leigh Smith, Respondent

Before: The Hon. Mr. Justice J.P.L. McDermot

Counsel: Steven Benmor, for the Applicant Respondent Self-Represented

Heard: By written submissions

Corrected decision: The text of the original judgment was corrected on June 16, 2015 and the description of the correction is appended

COSTS ENDORSEMENT

Background

[1] It is has taken a long time to get to the determination of costs in this matter. In November, 2012 I heard a ten day long trial involving these parties. The primary issue was custody of the parties’ 12 year old son, Micalister Cozzi-Smith. Complicating that issue was a claim by the Respondent, Ms. Smith, who up until September of that year had been the primary caregiver of the child, to move with Micalister from Holland Landing to Kitimat, British Columbia.

[2] An ancillary issue was ongoing child support as well as support arrears.

[3] I released my reasons for judgment on June 4, 2013. I awarded primary residence of the child to the applicant, Peter Cozzi, and dismissed Ms. Smith’s mobility application. I quantified support arrears owing by Mr. Cozzi in the amount of $47,768.

[4] I did not then order ongoing child support. This was because of a potential hardship claim by Ms. Smith because of the cost of flying Micalister to and from British Columbia for access visits. As such I allowed Ms. Smith an opportunity to make submissions on any hardship claim that she might have. Ms. Smith never filed any hardship submissions; I later discovered that she later had left Kitimat and moved to Michigan.

[5] Mr. Cozzi did not accept my decision on child support arrears. He brought a motion under Rule 25(19)(b) of the Family Law Rules[^1] to change my final order. His lawyer Mr. Benmor argued that I made a mistake in my endorsement in failing to take into account deductions that Mr. Cozzi took for carrying costs against his income under Schedule III of the Child Support Guidelines.[^2] That motion could not be heard until August 21, 2014 and was dismissed by endorsement dated October 24, 2014.

[6] I next determined child support based upon written submissions filed by the parties. Because of Ms. Smith’s future maternity leave I found that Ms. Smith would initially pay $214 per month based upon anticipated employment insurance income of $25,067 per annum. Thereafter I ordered ongoing child support of $576 per month based upon Ms. Smith’s income which I found to be $62,000 per annum. Because there had been several changes of circumstances, I allowed Ms. Smith to bring a motion for a motion to change child support within 60 days of my endorsement. To my knowledge that motion was never brought.

[7] Costs submissions have now been filed. I am now in a position to determine costs of the trial as well as the motion to vary my order pursuant to Rule 25(19)(b) noted above.

[8] Mr. Benmor claims costs on behalf of his client on a full recovery basis in the amount of $212,932.25 inclusive of disbursements and HST. Included in that costs claim is a disbursement for an assessment completed by Linda Chodos who testified at trial; Mr. Cozzi’s 80% share of the cost of the assessment was $17,938 inclusive of HST.

[9] The Applicant’s claim for costs is based upon both his success at trial as well as Ms. Smith’s unreasonable conduct. Mr. Benmor states in his costs submissions that Ms. Smith was largely unsuccessful on the major issue at trial which was the mobility and custody issues regarding Micalister. Although he acknowledges that his client was unsuccessful on the support arrears issue, he notes that this issue took very little time at trial as there was little evidence given regarding that and it the issue was dealt with on the basis on written submissions provided after the trial. He also suggests that Ms. Smith was unreasonable in taking the position at trial that Micalister should move with her to British Columbia. Mr. Cozzi also states that she was unreasonable because she failed to provide an offer to settle prior to trial.[^3]

[10] Ms. Smith acknowledges that she was unsuccessful on the major issue. She acknowledges as well that she is liable to pay a portion of Mr. Cozzi’s costs. She objects to the quantum of costs claimed by Mr. Cozzi both because she says they are excessive and also because she cannot afford to pay the costs claimed by Mr. Cozzi. She also says that success was divided. She suggests that 30% of the result should be attributed to support arrears issue and as such at most Mr. Cozzi should have only 70% of his partial indemnity costs. She notes that she did provide an offer to settle and she attached that offer to settle to her costs submissions.

Analysis

[11] There are number of issues in my consideration of costs in this matter. Firstly I must determine the effect of the offers to settle filed and served by both parties. Next I must determine the issue of unreasonable conduct that Mr. Benmor raises in his costs submissions. Next I must deal with the issue of divided success raised by Ms. Smith. Finally, I must quantify the costs owing in this matter and determine whether Ms. Smith’s impecuniosity should go to reduce any costs to be awarded.

[12] In all of this (and this is confirmed by the acknowledgments made by Ms. Smith in her costs submissions), there is little doubt that Mr. Cozzi was substantially successful at trial and that he is entitled to an award of costs. There is also little doubt that the mobility issue was the primary issue at trial. Accordingly, the real issue is not whether Mr. Cozzi is entitled to his costs, but what the amount of those costs should be.

Offers to Settle

[13] Both parties made comprehensive offers to settle prior to trial.

[14] In the event that a party is more successful than his or her offer I am bound to order costs on a full indemnity basis: see Rule 18(14) of the Family Law Rules. Under Rule 18(16), when I am ordering costs, I may take into account any offers to settle in determining costs, even if they do not fully comply with Rule 18(14) as noted above.

[15] The applicant attached three offers to settle to his costs submission. The first one was dated June 31, 2012. This appears, however, to have been an offer to settle a pre-trial motion heard before Mullins, J. on July 26, 2012. It is irrelevant to the costs at trial as Mullins, J. made her own order for costs for the motion on September 27, 2012, presumably taking into account that offer.

[16] Mr. Benmor served two other offers to settle. They were both served on Ms. Smith on the same date and are both essentially the same other than one offer to settle expired at noon on November 14, 2012, two days after it was served and the other had no expiry date. I assume that the offer without an expiry date is the offer to settle which is relied upon by Mr. Benmor under Rule 18(14).

[17] The latter two offers relied upon by Mr. Benmor are not severable. However, on the major issue of custody and access, both offers are similar. They both provide that Micalister have his primary residence with Mr. Cozzi. They both offer access to Ms. Smith during long weekends as well as during the Christmas school break, March school break and the summer school vacation. They are similar to the orders that I made respecting Micalister’s transportation which were also based upon Mr. Cozzi’s suggestions made by him in testimony at trial. Furthermore, it is implicit from the offers that Mr. Cozzi proposed that the application that Micalister reside in British Columbia be dismissed.

[18] Regarding child support, Mr. Cozzi offered to accept child support in the amount of $483 per month based upon Ms. Smith’s income of $53,460. The offers did not take into account the period of employment insurance leave that I ordered in my endorsement of January 19, 2015. That stands to reason as Mr. Cozzi was not aware of Ms. Smith’s pregnancy prior to trial. However on the ongoing support, the offer was more favourable than the result to Ms. Smith as she has not commenced a motion to change and I ordered ongoing support in the amount of $576 per month from July 1, 2014 on.

[19] The offer failed to address accumulated support arrears and Mr. Cozzi appears not to have turned his mind to this issue prior to trial. This is notwithstanding the fact that this issue was specifically reserved to trial by the endorsement of Perkins J. made on September 17, 2008.

[20] Ms. Smith also served an offer to settle dated July 4, 2012. Unlike the offers made by Mr. Cozzi, that offer was severable.

[21] On the custody and mobility issues, the major issues at trial, Ms. Smith’s offer was clearly less than the result at trial, as it provided for Ms. Smith moving with Micalister to British Columbia. It also offered ongoing child support to be payable by Mr. Cozzi to Ms. Smith, but with a $200 reduction in child support to make up for transportation costs for Micalister. However, the offer did address the child support arrears issue and Ms. Smith was more successful at trial on that issue than was the offer, which stated that arrears for 2005 and 2006 would be $20,000 with a review of support ordered by Perkins J. in 2008.

[22] Neither offer qualifies as an offer capable of supporting an award of full indemnity costs under Rule 18(14).

[23] Mr. Cozzi’s offers do not qualify firstly because portions are less successful than the result at trial and the offers were not severable. Mr. Cozzi failed to address the support arrears issue which, as noted, was reserved to trial by Perkins J. Because of this, Mr. Cozzi did not obtain, in the words of the rule, “an order that is as favourable as or more favourable than the offer” made by him.

[24] Ms. Smith’s offer to settle does not qualify under Rule 18(14) for obvious reasons. Although severable, it only exceeded the results at trial on what can be called a minor issue (until raised in a motion under Rule 24(19) by the applicant) of child support arrears. On the major issue, being custody and mobility, it clearly does not reflect the result at trial.

[25] Notwithstanding the fact that neither offer qualifies as a basis for full recovery costs under Rule 18(14), I may still take into account the offers in determining costs under Rule 18(16). And it is clear that the offer of the applicant was, overall, much more reflective of the result at trial than was the offer of the Respondent. This is a factor that I specifically take into account in assessing costs under Rule 18(16).

Unreasonable Conduct

[26] In addition to her lack of success at trial, Mr. Benmor urges me to find that Ms. Smith, by advocating that Micalister move with her to British Columbia, is guilty of unreasonable conduct.

[27] In addition to success at trial, which is acknowledged by Ms. Smith for costs purposes, I may have regard to a party’s unreasonable conduct in assessing costs: Rule 24(11)(b). A party can be unsuccessful at trial, yet reasonable. Unreasonable conduct, on the other hand, might warrant an award of costs, sometimes notwithstanding success at trial: see Rule 24(4).

[28] Bad faith would require me to award costs on a full indemnity basis: see Rule 24(8). However, Mr. Benmor has not raised the issue of bad faith conduct by Ms. Smith and indeed it is unlikely that it could be made out in the present case as a finding of bad faith requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made: see S.(C.) v. S.(C.), 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164 (Ont.S.C.J.) and Piskor v. Piskor, 2004 CanLII 5023 (ON SC), [2004] O.J. No. 796 (S.C.J.).

[29] I do not find Ms. Smith guilty of unreasonable conduct in her claim that it was in Micalister’s best interests for him to move to British Columbia.

[30] Firstly, she based her position on the assessment report of Linda Chodos, which recommended that Micalister move to British Columbia with Ms. Smith. It was not unreasonable for her to adopt the assessor’s position in this matter and I note that Mr. Cozzi only attacked the assessment process once it became apparent that the assessment was contrary to his position at trial.

[31] Secondly, Ms. Smith based her position on Micalister’s expressed views and preferences as expressed to Linda Chodos. The evidence at trial warranted a finding by me that Micalister wished to move to Kitimat with his mother, with whom he had a closer emotional bond than with his father.

[32] Finally, Ms. Smith had been Micalister’s primary caregiver until September of 2012 and this was a third reason why her position at trial was, although unsuccessful, not unreasonable. It was not unreasonable for her to believe that it was in Micalister’s best interests that her role as caregiver continue.

[33] Although Ms. Smith took a position at trial which was ultimately unsuccessful, that position was defensible on a number of fronts. I therefore do not find Ms. Smith to be guilty of unreasonable conduct for costs purposes.

Divided Success

[34] Ms. Smith suggests that success was divided, and it was. Although Mr. Cozzi was largely successful on custody, mobility and child support, Ms. Smith beat her offer on child support arrears. As such, Ms. Smith suggests that I attribute 70% of the success to Mr. Cozzi and 30% of the success to her, and that costs be apportioned in a similar ratio.

[35] Under Rule 24(6), where success is divided, I “may apportion costs as appropriate.”

[36] I have mentioned several times above that the dominant issue at trial was custody and mobility. Very little evidence was given at trial about support, and little time was spent by either party in cross-examining about support. In fact, this was partially because Mr. Benmor suggested that there was little need for Ms. Smith to cross-examine his client about the retroactive child support because he suggested that this could be dealt with by written submissions; that suggestion to Ms. Smith directly resulted in my determination of the retroactive support arrears based upon Mr. Cozzi’s Line 150 income, as well as the subsequent Rule 25(19) motion.[^4] Mr. Cozzi was unsuccessful at the motion, which was dismissed.

[37] It cannot be reasonably said that 30% of the time spent at trial was spent on support issues. Ms. Smith gave some evidence at trial about her financial situation and the fact that she would be going on maternity leave in due course. Mr. Benmor cross-examined Ms. Smith on her income. Mr. Cozzi achieved success, ultimately, on the support issues and Ms. Smith did not make submissions on the hardship issue. No time was spent at trial, at the suggestion of Mr. Benmor, on the support arrears issue. The only place where significant attention was spent on the support arrears issue, the issue on which Ms. Smith achieved some success, was in the Rule 25(19) motion.

[38] I therefore do not find it appropriate to apportion the costs of trial based upon divided success. The vast majority, if not all, the trial time was spent on issues that Mr. Cozzi was successful. As such, costs of trial should follow the event, and Mr. Cozzi should have his costs of that trial.

[39] That is not the case with the Rule 25(19) motion. Mr. Cozzi was unsuccessful at that motion. He should not have his costs of that motion; in fact, Ms. Smith should have costs of that motion. Unfortunately, Ms. Smith has not claimed or outlined any of her costs of that motion, as she attended by telephone and filed only a short affidavit. I have nothing to base a costs award for the motion for Ms. Smith. I can therefore do nothing better than to deprive Mr. Cozzi of his costs of that motion.

Quantum of Costs

[40] In his costs submissions, Mr. Cozzi says that he claims full recovery costs of $196,183.40 inclusive of disbursements and HST.[^5]

[41] I have already determined that Mr. Cozzi is not entitled to full recovery costs based upon the offer to settle which was served. I have also determined that Ms. Smith was not guilty of unreasonable conduct. Barring misconduct, full recovery costs are the exception and not the rule: see Hunt v. TD Securities Inc. (2003), 2003 CanLII 3649 (ON CA), 66 O.R. (3d) 481 (C.A.). The object of costs is not to fully indemnify a successful party, but to fix a fair and reasonable amount payable by the unsuccessful party: see Boucher v. Public Accountants Counsel (Ontario) 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.). There are no grounds upon which I can order full, or for that matter, substantial recovery costs. Accordingly, as is the normal course, Mr. Cozzi is entitled to his costs on a partial recovery basis.

[42] The amount claimed by the Applicant is set out in his Bill of Costs attached to his costs submissions. The fees summarized in the Bill of Costs total $156,178.90. Mr. Cozzi also claims disbursements of $2,900.73. In addition to these disbursements, he claims reimbursement for his share of cost of preparation of the assessment by Linda Chodos in the amount of $17,938.75 including HST.[^6] Finally, HST on the fees and disbursements (excluding the assessment report of Linda Chodos) total $19,165.02; the HST on disbursements (other than the assessment) total $377.09. The total of fees, disbursements and HST is $196,183.40. Based upon the hourly rates set out in the Bill of Costs, I assume that the costs claimed by the Applicant are on a full recovery basis.

[43] In the Bill of Costs, Mr. Cozzi claims costs of $22,000 for “pretrial preparation for and attendances on conference and motions (not the subject of past costs orders).” However, any case conferences where costs were not reserved cannot be the subject matter of a final costs award: see Islam v. Rahman, 2007 ONCA 622, [2007] O.J. No. 3416 (C.A.). This would include the conferences held on August 8, 2008, July 5, 2012 and October 23, 2012; the latter two conferences were included in the accounts filed by the Applicant as part of his costs submissions. The account covering the August 8, 2008 date was not part of the costs submissions.

[44] There was, however, one motion where the costs were reserved the trial judge. On April 25 and 26, 2012, the parties attended before McKelvey J. for a motion. The time for attendance was lengthy and, according to the accounts of Mr. Benmor, was in excess of 11 hours over that two day period. It appears that there was approximately six further hours in preparation for that motion. According to the Bill of Costs, the costs of that motion would be, on a full recovery basis, about $7,000 plus HST. Based upon the result at trial, Mr. Cozzi should have the costs of this motion, again a partial recovery basis in the amount of $4,000.

[45] Other than that motion, costs do not appear to have been reserved respecting any other conferences or motions.

[46] In addition, on at least one occasion, notwithstanding the statement that the $22,000 reflected costs not previously ordered, Mr. Cozzi also appears to have claimed costs for a motion where costs were already awarded. In September, 2012, Mullins J. ordered costs of $8,000 for the motion which was heard before her on July 26, 2012. These costs were included in Mr. Cozzi’s Bill of Costs by way of the accounts from Mr. Benmor dated July 17, 2012 and September 11, 2012. To award costs for this motion would be double compensation for Mr. Cozzi.

[47] For these reasons, I am going to reduce the $22,000 claimed for pre-trial motions and conferences to $7,000 to reflect Mr. Cozzi’s costs for the motion before McKelvey J. on April 26 and 26, 2012, to eliminate costs for conferences where costs were not previously reserved, as well as to deal with the claim for double compensation for the motion heard before Mullins J. This would reduce the amount claimed for fees to $141,178.90.[^7]

[48] I must next address the costs of the Rule 25(19) motion.

[49] It was difficult to break out the costs of the Rule 25(19) motion from the Bill of Costs, or to even determine whether this amount was included in it (as it only spoke of “pre-trial” motions). The costs of that motion were certainly included in the attached accounts; it appears that the accounts of July 31, November 6 and December 6, 2013 as well as September 4 and October 7, 2014 were largely respecting preparation for and argument of that motion. These accounts total, inclusive of disbursements and HST, $23,755.43. That figure is well in excess of the $22,000 reserved for motions and conferences as noted in the Bill of Costs. I must assume that the costs of the Rule 25(19) motion were not included in the $22,000 for “pre-trial” motions.

[50] Because I cannot confirm where the costs lie for the Rule 25(19) motion, and because there were numerous pre-trial appearances not broken out in the Bill of Costs, my approach has to be more intuitive than scientific. I am going to deduct a further $15,000 from the fee portion of the Bill of Costs in order to address Mr. Cozzi’s failure on the Rule 25(19) motion, as well as to address conferences where costs were not reserved.

[51] This further reduces the fees portion of the Bill of Costs to $126,178.90. The issue is then whether this is an appropriate basis for the fees portion of the costs award in this matter.

[52] Were costs to be paid on a full indemnity basis, I find that this amount is not unreasonable under the circumstances.

[53] Under Rule 24(11), I am to consider in my assessment of costs the “importance, complexity or difficulty of the issues.” This was a ten day trial on mobility issues. There was an assessment that had to be addressed by Mr. Cozzi’s team. They had to review several psycho-educational assessments of Micalister. Research had to be done on the proposed living situation in Kitimat. There were numerous witnesses. It is not surprising that the fee portion of the case was in that amount under the circumstances. In fact, the trial should have taken longer than it did, had the support issues been addressed as suggested by Perkins J. in 2012.

[54] I had expressed concerns about Mr. Cozzi’s behaviour in my ruling on the Rule 25(19) motion, but he was conversely extremely reasonable in his planning for Micallister and in his proposals for time sharing with the Respondent. I do not believe that there is unreasonable behaviour on either side which would affect my costs award under Rule 24(11)(c).

[55] I also do not find the schedule of hourly rates for Mr. Benmor or his associates to be unreasonable.

[56] I therefore find that, on a full recovery basis, fees of $126,178.90 are reasonable for the trial of this matter. I have already determined that Mr. Cozzi shall have his costs on a partial indemnity basis and accordingly those costs shall be reduced to 60% of that amount which is $75,707.34. With HST, fees for trial on a partial recovery basis would therefore be $85,549.29.

[57] Mr. Cozzi has claimed disbursements of $2,900.73; with HST, these disbursements total $3,277.82. They are reasonable and should be allowed.

[58] In addition, he should be reimbursed for the costs of Linda Chodos which were, inclusive of HST, $17,938.75. I reject the argument that Ms. Smith should be reimbursed for her portion of the costs because the assessment was in her favour; the issue is the success at trial and not whether the assessment came down one way or another. The cost of the assessment is a disbursement like any other to be awarded as part of the costs at trial.

[59] Accordingly, total costs of trial awarded to Mr. Cozzi on partial indemnity basis, including the motion before McKelvey J., inclusive of disbursements and HST are $106,765.86.[^8] I must now consider whether these costs should be reduced by reason of Ms. Smith’s impecuniosity.

Impecuniosity Issues

[60] Ms. Smith requests that costs be reduced substantially based upon her impecuniosity and her financial inability to pay the costs of trial.

[61] Under Rule 24(11)(f) of the Family Law Rules, I am entitled to take into account “any other relevant matter” in determining costs. This includes a party’s financial circumstances or ability to pay a costs award.

[62] Ms. Smith is correct when she states that there is case law which confirms that a parties’ financial situation may be taken into account in awarding costs. These include cases decided on appeal: see C.A.M. v. D.M., 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707 (C.A.) at paragraph 45 and Harrington v. Harrington, [2009] O.J. No. 827 (C.A.) at paragraph 8.

[63] However, this principle appears generally applies where a court finds that the costs award will impair a party’s ability to financially care for or support his or her child. In Beckett v. Beckett, 2010 ONSC 2706, [2010] O.J. No. 1957 (S.C.J.), Pazaratz J. considered Rule 24(11)(f) and confirmed that “any other relevant matter” included a party’s ability to bear a costs award. However, he also confirmed that this is something to be taken into account only where the costs award would affect the payor’s ability to support his or her child. He determined that although a costs award would “jeopardize [the Respondent’s] ability to provide for her children”, that “we must not lose sight of the fact that unrecovered legal fees also interfere with the Applicant’s ability to provide for his children during the significant periods of time they are with him” [paragraphs 37 and 38]. Because both parties had almost equal care of the children, he decided that costs would follow the event.

[64] This was confirmed in C.A.M. in which Rosenberg J.A. stated at paragraph 45 that the costs claimed by the Respondent “was money he had to pay to defend this litigation that would otherwise have been available, at least in part, for the care of the child.”

[65] As Ms. Smith does not have care of Micalister, her financial ability to care for Micalister is not in issue. Conversely, Mr. Cozzi has had to pay significant costs to his lawyer which will already, I am sure, affect his financial ability to care for Micalister. As such, I reject the Respondent’s claim that costs should be reduced because of her inability to pay the costs of trial.

Quantum of Costs

[66] Accordingly, Mr. Cozzi shall have his costs for the trial of this matter in the amount of $106,765.86 inclusive of HST and disbursements.

[67] There are other awards of costs in this proceeding that I must address at this time. On February 6, 2009, Perkins J. awarded costs to Mr. Cozzi of the motion heard on September 17, 2009 in the amount of $12,000 “payable in the manner and at the time or times that the judge who hears the trial of the issues in this case directs, or as the parties agree.” This amount was reduced by $500 to $11,500 by reason of the endorsement of Rogers J. on June 7, 2010.

[68] On February 6, 2009, Perkins J. also awarded costs of $750 to Ms. Smith, “also payable in the manner and at the time or times that the judge who hears the trial of the issues in this case directs, or as the parties agree.”

[69] I have not been told of any agreement as to payment of costs, and accordingly payment of these costs must be addressed.

[70] I set off against the $750 costs award payable to Ms. Smith against the costs awarded to Mr. Cozzi the same date. Therefore, and based upon the endorsements of Perkins J. of February 6, 2009 and Rogers J. of June 7, 2010, Ms. Smith owes Mr. Cozzi net costs of $10,750 in addition to the costs I have awarded today.

[71] These costs shall therefore be payable along with my award of costs made by me in this endorsement. The total costs owing by Ms. Smith are therefore in the total amount of $117,515.86.

[72] In my endorsement of January 19, 2015, I ordered that any child support owing by Ms. Smith under that endorsement or previous interim orders be set off against the award for retroactive support against Mr. Cozzi set under my order of June 4, 2013. If there are still retroactive support arrears owing by Mr. Cozzi under the June 4, 2013 order after setting off support owed by Ms. Smith, the costs ordered herein shall be set off against that award.

[73] I understand that there are funds paid into court from the sale of Ms. Smith’s home in Holland Landing. Those funds are being held in trust and there are competing claims for those funds, including the claims of Ms. Smith’s previous lawyer, as provided for in the order of Kaufman J. dated September 29, 2014. I therefore make no order as to whether these costs are payable from those funds as this issue involves other parties not involved in this trial.

[74] I also decline to make an order that the costs may be collected in the same manner as support as requested by Mr. Benmor. Child support was not the major issue at trial; this was essentially a custody and mobility case. It is only appropriate to make costs collectable as support where those costs are largely connected with a support issue, and that is not the case here.

[75] Accordingly, there shall be an order for costs in favour of Mr. Cozzi in the amount of $106,765.86. In addition to these costs, Mr. Cozzi may now take steps to enforce Perkins J.’s cost award made September 17, 2009 in the net amount of $10,750. The total costs collectable are therefore $117,515.86. This amount shall be set off against any child support arrears remaining owing under my orders of June 4, 2013 and January 19, 2015.

McDERMOT J.

Date: June 16, 2015

1. Correction of the spelling of name of the applicant’s counsel throughout the decision.

2. Correction to the spelling of Rosenberg, J.A. in paragraph 64.

[^1]: O. Reg. 114/99

[^2]: O. Reg. 391/97

[^3]: An offer was, in fact, made by Ms. Smith as discussed below.

[^4]: See Cozzi v. Smith, 2014 ONSC 6189

[^5]: This is the amount set out as the “grand total” of fees and disbursements and HST in Mr. Cozzi’s Bill of Costs. In his submissions, Mr. Cozzi requests costs of $212,932.25. This appears to be the sum of the accounts attached at Tab B to the costs submissions (which total $194,993.46) plus the costs of the Chodos assessment. Based upon the fact that the Bill of Costs breaks down the fees incurred for different portions of the litigation, I am going to assume that Mr. Cozzi’s costs claim is that set out in the Bill of Costs rather than the total of the accounts themselves.

[^6]: Under the order of Perkins J. dated September 17, 2008, Mr. Cozzi agreed to pay 80% of the initial costs of the assessment “subject to review when the report is completed.” Mr. Cozzi now claims those disbursements as part of his costs.

[^7]: $156,178.90 - $22,000 + $7,000

[^8]: $85,549.29 + $3,277.82 + $17,938.75