NEWMARKET

COURT FILE NO.: FC-11-039619-00

DATE: 20150914

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GINA MENCHELLA
Applicant

– and –

ANTHONY MENCHELLA
Respondent

H. Niman/A.J. Jakubowska, for the Applicant

K.A. Maurina, for the Respondent

HEARD: by written submissions

RULING ON COSTS

DOUGLAS J.

[1] This is my Ruling on Costs following the release of my decision in the above matter on June 24, 2015 with respect to the Respondent support payor’s motion for an order staying support owing pursuant to the Orders of March 21, 2012 and September 5, 2013.

[2] Rule 24 of the Family Law Rules establishes a presumption that a successful party is entitled to the costs of a motion. Further, I am to consider the following factors:

a. the importance, complexity or difficulty of the issues;

b. the reasonableness or unreasonableness of each party’s behaviour in the case;

c. the lawyers’ rates;

d. the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument and preparation and signature of the order;

e. expenses properly paid or payable; and

f. any other relevant matter.

[3] Further, costs are to be decided at each step in the case.

[4] The Respondent’s motion was dismissed. There can be no disputing that the Applicant was entirely successful on this motion. The Applicant seeks full indemnity costs in the amount of $24,404.08 and relies upon an Offer to Settle dated March 4, 2015 which called for the Respondent to withdraw his motion and to continue to pay temporary child and spousal support pursuant to the order of March 27, 2014 (i.e. $1,985 per month representing child support only) and no costs assuming the Offer was accepted by March 5, 2015 and costs on a full recovery basis if the Offer was accepted thereafter.

[5] The issues were of importance to the parties but the motion was not complex or difficult.

[6] I assess a degree of unreasonableness on the part of the Respondent in his approach to the motion given the concerns expressed in my endorsement of June 24, 2015.

[7] The Respondent submits that costs of $3,000 would be appropriate and identifies several areas of concern with respect to the Applicant’s Bill of Costs. Addressing those concerns, it does appear that there was some duplication of effort as a consequence of two counsel expending over six hours of time “reviewing” Mr. Menchella’s motion materials; further, two counsel attending on the motion on June 24, 2015. Further, the Bill of Costs contains elements arising from the March 11, 2015 attendance before Justice O’Connell; however, costs of that appearance were addressed by Justice O’Connell and do not subsist for my purposes.

[8] Further, full indemnity costs cannot be sought on the basis of the unaccepted Offer to Settle for the period prior to the date of the Offer to Settle, being March 4, 2015. The Bill of Costs covers the period from January 29, 2015 to June 24, 2015.

[9] An award of costs is designed to foster three fundamental purposes:

a. to partially indemnify successful litigants for the costs of litigation;

b. to incur settlement; and

c. to discourage and sanction inappropriate behaviour by litigants.

[10] Ultimately, costs awards should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party.

[11] In family law cases the preferable approach is to have costs recovery generally approach full recovery so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result. Parties must understand and be motivated to settle by the fact that there are costs consequences at the end of the proceeding [see Green v. Green 2008 O.J. No. 3778 (SCJ)].

[12] Given the quality of the Respondent’s financial disclosure, alluded to in my Reasons for Decision released June 24, 2015, I am not persuaded for the purposes of this ruling that the Respondent is impecunious.

[13] Keeping the foregoing factors in mind I conclude that costs to the Applicant fixed in the amount of $9,000 is appropriate and I so order, payable at the rate of at least $1,000 per month, commencing September 15, 2015.

DOUGLAS J.

Released: September 14, 2015