Court File and Parties

Newmarket Court File No.: FC-15-048668-01 Date: 20160525 Ontario Superior Court of Justice

Between: Annette Pipitone (formerly Antonietta D’Amelio), Applicant – and – Franco D’Amelio (aka Frank D’Amelio), Respondent

Counsel: M. Capotosto, for the Applicant A. Abramian, for the Respondent

Heard: March 22, 2016

Ruling on Costs

Douglas J.

[1] This is my ruling on costs following the Respondent’s Motion for Summary Judgment heard by me on March 22, 2016 following which I released Reasons for Decision on April 15, 2016.

[2] The Respondent moved for Summary Judgment seeking dismissal of the Applicant’s claims set out in paragraphs 1 to 22 of her Motion to Change (excluding paragraph 18 relating to the Applicant’s claims for damages arising from alleged assaults, mental abuse and cruelty).

[3] In essence, the relief being pursued by the Applicant regarding which the Respondent sought dismissal related to the Applicant’s request that the decree nisi of Justice Ferguson and the Separation Agreement between the parties dated October 3, 1984 be set aside such that the Applicant would be entitled to pursue issues of property division under the Family Law Act and spousal support.

[4] Before argument of the Motion for Summary Judgment, but after its delivery, the Applicant withdrew her claim for a declaration of a constructive trust interest in the Respondent’s real property.

[5] In the result, I granted the Motion for Summary Judgment with respect to the Applicant’s claim for equalization but I dismissed the Motion for Summary Judgment with respect to the Respondent’s claim for dismissal of the balance of the Applicant’s claims for relief.

[6] The Applicant did not serve an offer to settle. The Respondent did serve and offer to settle but its terms do not trigger cost consequences.

[7] The Applicant submits that she was substantially successful despite the Respondent’s success on the equalization issue. She seeks costs on a partial indemnity basis in the amount of $16,420.61 including HST and disbursements.

[8] The Respondent submits success on the motion was mixed and thus no costs should be payable by either party to the other. The Respondent notes costs were wasted preparing for argument on the constructive trust claim, only to have Applicant withdraw that claim at commencement of the motion before me. The Respondent’s Bill of Costs on a full indemnity basis is $19,838.28 including HST and disbursements.

[9] There is a presumption that a successful party is entitled to costs; however, in this matter both parties enjoyed a measure of success. Without further financial disclosure and analysis it is not possible to fully evaluate the relative monetary values of the Applicant’s claims for spousal support and equalization. Both are significant issues and if pursued to trial would entail extensive disclosure and attention from counsel. I am not prepared to conclude that either is more or less valuable than the other at this stage.

[10] I also consider that costs were increased on this Motion as a result of the Applicant’s delivery of unnecessarily expansive narrative in her affidavit materials. Much of her evidence was irrelevant to the issues before me.

[11] In consideration of the factors under Rule 24 of the Family Law Rules, I find no basis to favour either party’s success on the Motion over that of the other.

[12] Therefore, each party shall bear their own costs of this Motion.

Douglas, J. Released: May 25, 2016