SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 1223-2010

DATE: 2015/08/18

RE: Karen Michele Cammaroto (Applicant)

AND:
Daniel Carl Cammaroto (Respondent)

BEFORE: Justice D. R. Aston

COUNSEL:
Monique Rae Bennett, for the applicant

Donald W. Kilpatrick, for the respondent

HEARD: On written submissions

costs ENDORSEMENT

[1] The main issues at trial were equalization of net family property and spousal support.

[2] Mr. Cammaroto claims success on both the property and support issues in his submission on costs. However, his submission is founded largely on what the court might have decided or should have decided and the false premise that any entitlement to spousal support or an equalization payment is “success”.

[3] On the equalization claims there was a preliminary issue regarding the valuation date. Extensive evidence was led. The court accepted the wife’s position. Moreover, the wife was not in a position to resolve the equalization issue until January this year when the husband finally provided the complete documentary evidence of his Schwab investments on the date of marriage. Given the onus of proof on the husband and the questionable reliability of his evidence it was reasonable for Ms. Cammaroto to refuse to make a concession without proof and Mr. Cammaroto unreasonably delayed production of that evidence for more than four years. Once the evidence was finally provided the only outstanding issue on the NFP claim of any real consequence was the valuation of the wife’s pension. She was successful on that point, based on the factual finding of her assumed retirement date. Clearly Ms. Cammaroto was the more successful party on the equalization of property.

[4] On the spousal support issue there was never any serious issue regarding the husband’s entitlement. The real issues were quantum and duration. The husband was unsuccessful in his claim for indefinite support. It was time limited. Mr. Cammaroto failed to reveal the fact he began to receive Social Security payments of more than $1,000 monthly after the interim order, triggering a recalculation and retroactive reduction of the quantum of support he had been receiving under the interim order. Ms. Cammaroto was the more successful party on the spousal support issue.

[5] There is no doubt the applicant is entitled to an award of costs given her success on the issues and the respondent’s unreasonable litigation conduct.

[6] The applicant made a bonafide attempt to settle the issues from the outset and even during the trial itself. However, I’m not satisfied that she has met the requirements of Family Law Rule 18 and its presumptive entitlement to costs, including costs on a substantial indemnity scale following delivery of an offer to settle.

[7] The applicant claims full indemnity for her costs, just over $131,000. The respondent’s share of the money still held in court to the credit of this action is approximately $45,000. Any costs award in excess of the $45,000 would leave the respondent impecunious, a factor to consider. The other side of that coin is that the applicant will not be able to recover any costs in excess of $45,000 even if such an award is otherwise appropriate. The respondent has no exigible assets and his income sources are not subject to garnishment or attachment.

[8] The time spent by the applicant’s counsel, outlined in detail in her bill of costs, and her hourly rate are perhaps not unreasonable as a starting point in fixing costs. However, I do note that both the hours and the rate are significantly higher than those of the respondent’s senior and capable counsel.

[9] I am mindful of the need for proportionality and to consider the reasonable expectations of the losing party as fundamentals to a fair assessment of costs. Though the property dispute was a fight over less than $100,000, the prospect of spousal support extending for many years to come meant that a significant amount of money was at stake in this proceeding, warranting a careful and thorough approach by the applicant’s lawyer. This was not a simple case, but it was made much more complex than it needed to be by the positions taken by the respondent. The prime example is his dispute with respect to the valuation date, a dispute which necessitated much duplication of effort surrounding the two proposed dates in circumstances where “it was clear from all the evidence that Mr. Cammaroto was determined to delay the inevitable separation as long as possible to maximize his entitlement to support and not because there was any realistic hope, even in his own mind, that a true marital relationship would ever resume”.

[10] There are a few items in the bill of costs that overlap with motions for which costs were awarded, or could have been, and for the mediation. However, for the most part, the items are within the boundaries of the trial of the application.

[11] The respondent shall pay costs fixed in the amount of $60,000, inclusive of HST and disbursements. The entire amount of the funds held with the Accountant of the Superior Court of Justice to the credit of this application shall be paid to the applicant, Karen Cammaroto and the respondent shall thereupon be credited with payment to her of $44,981.29 as against the costs payable, that sum representing his net share of the monies paid into court.

“Justice D.R. Aston”

Justice D. R. Aston

Date: August 18, 2015