CITATION: Maria Acocella-Pittiglio v. Robert Pittiglio, 2016 ONSC 1715

COURT FILE NO.: FC-13-00044489

DATE: 20160311

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Maria Acocella-Pittiglio, Applicant

AND:

Robert Pittiglio, Respondent

BEFORE: B. G. MacDougall, J.

COUNSEL: Aida Pasha, Counsel, for the Applicant

William Abbott, Counsel, for the Respondent

HEARD: November 28, December 1, 2, 3, 4, 5, 2014

ENDORSEMENT

Background

[1] The parties’ Family Law trial dealing with parenting issues regarding their two children ages six and four (the parenting trial) was bifurcated from the financial issues dealing with equalization, spousal and child support issues (the financial issues trial) as result of limited time that was remaining in the November 2014 Civil and Family Law Central East Region’s Sittings. The parenting trial to place over a period of approximately 6 days starting November 28th, 2014.

[2] The parties had been married for about 6 ½ years and separated in March 2013. They have two children Sophia age 6 and Olivia age 4.

[3] During the course of the time the parties resided together, the mother was the primary parent for the two children and the father was the main income earner from his business as an investment counsellor.

[4] In the mother’s Court Application, she was claiming sole custody of the children with alternative weekend access for the father. The father wanted to have a “shared parenting” arrangement so the children would spend considerably more time in his care rather than being limited to an “alternative access weekend parent”.

[5] Both parties had legal counsel and through their counsel they had agreed that they would retain Mr. Howard Hurwitz to conduct a section 30 Custody and Access Assessment. Mr. Hurwitz produced a 53 page Report and set out a Recommended Parenting Plan including 12 “Guidelines and Principles”. Mr. Hurwitz also testified at the trial.

[6] During the second day of trial, the mother’s “formal position” as set out in her initial Application was varied when her counsel advised the court that the mother was now prepared to agree to a “shared custody” arrangement but disagreed with the schedule proposed in the Hurwitz report.

[7] In my decision, I noted in paragraph 4 of my Endorsement dated February 12, 2015:

The difference in the parties’ position as to the “custody/access” arrangements taken at the initiation of the applications, has now become a fairly narrow difference in terms of the orders that the parties are now seeking. Both parties now agree to a “joint custody” regime.

[8] In my Endorsement, I basically adopted most of Mr. Hurwitz’s recommendations other than the recommended timing of the two incremental phases describing the times the children were to be with the father.

[9] The father now seeks his costs for the parenting trial.

Discussion

[10] On November 4, 2014, the father served the mother with the very detailed Offer to Settle including all aspects of the issues between the parties. On the parenting issues, the father’s offer mirrored the recommendations of Mr. Hurwitz. Accordingly, other than the timing of the phasing in for the period of time when the children were to be at the father’s residence, which I had had varied from Mr. Hurwitz’s recommendation, the father’s Offer to Settle was substantially in accordance with the terms of my decision.

[11] The mother has new legal counsel who appeared on the Cost Submissions Hearing. Mother’s new counsel has appeared for the mother on the financial issues trial that has already commenced before another judicial colleague.

[12] The mother’s position is that the father is entitled to some costs for the parenting trial, but the parties disagree on the quantum of costs and the timing of payment of costs by the mother.

[13] Current counsel for the mother stated on the record that the mother is taking issue with the legal costs of mother’s previous counsel and advised the court that with respect to the mother’s own legal fees, the mother was taking the position that the mother’s former legal counsel had “failed to conduct the parenting trial in a competent manner”.

[14] Father’s counsel submitted that, in addition to the position the mother had initially taken on the parenting issue, combined with the mother’s parenting trial counsel’s conduct, this contributed to unnecessarily extending the trial time. I agree that mother’s parenting trial counsel appeared to be unprepared for the trial and on several days, she kept the court waiting for her attendance in order to continue with the trial.

[15] The parties did have the benefit of a number of Settlement Conferences and two mid-trial Conferences. During the trial on several occasions, I strongly encouraged the mother’s counsel and the mother, to focus on the approach that higher courts have taken that, only in “special circumstances” is there the likelihood that an order for “sole custody” is made and that in my view, there were no such “special circumstances” in our case.

[16] I agree that, as the father’s counsel submits, it was only “late in the day”, when the mother changed her position and agreed to a shared custody regime for the children. Nevertheless, by that time, significant legal costs had been incurred by both parties.

[17] The mother submitted an Offer to Settle dated July 23, 2014 seeking sole custody of the children with the father having alternative weekend access plus some holiday time. On November 30, 2014, just a few days prior to the trial, the mother altered her position and offered to settle for joint custody with the primary residence being with the mother. In addition to weekend access, the father would have been entitled to have a visit on Wednesdays after school up until after the dinner meal as well as some holiday time.

[18] Father’s counsel submits that, as the November 30, 2014 offer was outside the 7 days before the commencement of the trial, according Rule 18 (14)(2), of the Family Court Rules, that offer should not be a factor in determining costs.

[19] In summary fashion, father’s counsel submits that the mother should contribute $80,000 on a “partial indemnity” basis to the father plus the cost of Mr. Hurwitz attending in court and that those costs should be “payable forthwith”.

[20] Mother’s counsel points out that the father sought an assessment of his own legal counsel’s fees and that that matter was settled between the father and his legal counsel when the father’s counsel agreed to reduce his fees by approximately $45,000. Mother’s counsel submits that, taking that fact into account, along with other factors, $30,000 should be the amount awarded to the father. In terms of the timing of the costs payment, the $30,000. should not be payable until the completion of the financial trial. In addition, Mr. Hurwitz’s fees for attending at court should be shared equally by the parties.

[21] In terms of the quantum of fees to be awarded in the circumstances and the timing of payment, father’s counsel points out that with respect to the commencement of the financial issues trial, there had been an issue with respect to the financial disclosure by the father that the necessitated an adjournment of that trial. As the mother’s expert retained to review the father’s financial position could not complete the report for the financial trial because of that failure to disclose, costs were awarded to the mother in the amount of $29,040 and were to be paid by the father within 5 business days.

[22] I agree with father’s counsel that the mother’s approach on the parenting issues, particularly given the recommendations of the Mr. Hurwitz and the fact that other than the mother, there was no other evidence submitted by her to take issue with his report, was unreasonable. Mother’s counsel also contributed to the parenting trial taking longer than necessary. In addition, as noted above, the father’s Offer to Settle was very close to the ultimate decision of the court.

[23] The question is, what should the quantum of costs be, factoring in that the mother’s income according to her Financial Statement and sworn October 11, 2015 was $28,600 for 2014 and she showed her income for 2015 as only $6541.92?

[24] There is nothing before me to indicate what she may be entitled to should she be successful in the financial trial regarding her equalization of net family property.

[25] After considering all of the circumstances of this case, a fair and just costs order for the parenting trial would be $50,000.inclusive of disbursements.

[26] I also agree with a father’s counsel that because the mother was not able to seriously challenge Mr. Hurwitz’s report and did not call any witness or other expert to challenge Mr. Hurwitz’s recommendations, she will be responsible for all of Mr. Hurwitz’s fees for attending court.

[27] Accordingly, the Costs Order for the parenting trial is fixed in the amount of $50,000 payable to the father. The mother will have until June 30, 2016 to pay those costs.

B. G. MacDougall

Date: 11 March 2016