SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nancy Ann Nella, Applicant v.
Antony Augustus Nella, Respondent
BEFORE: Justice W. M. Le May
COUNSEL: Lisa Bombardieri, for the Applicant, Nancy Ann Nella
Esther L. Lenkinski, for the Respondent, Antony Augustus Nella
E N D O R S E M E N T
Le May J.
1This is an endorsement to address the costs associated with the fixing of the terms of the Orders associated with my March 14th, 2016 and April 1st, 2016 endorsement. The parties could not agree on what the terms of the Orders flowing from those decisions should be. I was required to prepare a forty seven paragraph endorsement to address these issues, and it was released on May 17th, 2015.
2I directed that the parties provide me with their costs submissions, which I have now received and reviewed.
3Nancy argues that there should be no costs payable by either party for this process for two reasons:
Neither party was more successful than the other party in the fixing of the terms of the Order.
Any issues relating to the Applicant’s attempts to have FRO enforce arrears from the Order of Trimble J. were based on a misunderstanding of my March 14th, 2016 Order.
4Antony, on the other hand, argues that he should be entitled to full indemnity costs on the basis that he was almost entirely successful in his positions on the motion and, more importantly, on the basis that Nancy engaged in bad faith conduct by pursuing the arrears from Trimble J.’s Order on the fixing of the terms of my Order.
The Facts
5I have described the facts that led to the issuance of my May 17th, 2016 endorsement in that endorsement and in my March 14th, 2016 endorsement. Very briefly, the March 14, 2016 endorsement dealt with the arrears from a decision of Trimble, J. in January of 2015. On Nancy’s theory of the case, arrears from Trimble J.’s Order were approximately $800,000.00 and were payable immediately. On Antony’s theory of the case, he had made sufficient payments in the arrears period to set off all of the arrears.
6The parties could not agree on the terms of the Order flowing from the March 14, 2016 endorsement, which necessitated my May 17, 2016 endorsement.
7As part of my May 17, 2016 endorsement, I provided Nancy’s then counsel, Ms. Bombardieri, the opportunity to advise me if she had not taken steps through the Family Responsibility Office (“FRO”) to seek the enforcement of approximately $800,000.00 in arrears that she claimed were still owing under the Order of Trimble J.
8In response to my endorsement, Ms. Bombardieri advised again that Nancy had misunderstood my March 14th, 2016 endorsement and that it was FRO that determined what Orders would be enforced. Ms. Bombardieri also provided a copy of a letter that she sent to FRO. That letter reads, in full, as follows:
Please find enclosed the Endorsement of the Honourable Justice LeMay wherein he dismisses Mr. Nella’s Motion to vary the Order of Justice Trimble that requires him to pay support to Ms. Nella. You advised me that you were not enforcing the arrears of support because of Mr. Nella’s Motion. Justice LeMay dismissed Mr. Nella’s motion and as such, the FRO needs to start enforcing the arrears of support owing pursuant to Justice Trimble’s Order.
9The statements in that letter must be considered against paragraph 61(f) in my March 14th, 2016 endorsement, which states:
f) I am dismissing the remainder of the relief sought by both parties, without prejudice to either party to raise any of the issues that they raised in these motions before the trial judge.
10Paragraph 61(f) comes after a number of other paragraphs in my decision where I make it quite clear that I am only ordering the payment of $200,000.00 in retroactive support, and that any additional amounts flowing from Trimble J.’s endorsement are unascertainable and should be left to the Trial Judge to determine.
11I am gravely concerned by both Ms. Bombardieri’s correspondence to FRO and by her position on this motion in light of what I wrote in my March 14th, 2016 endorsement. My concern arises in part because Nancy seeks the enforcement of arrears that were unascertainable and undetermined. This brings me to an analysis of the law.
The Law and Analysis
12Rule 24(8) of the Family Law Rules states that if a party has acted in bad faith, the Court shall decide costs on a full indemnity basis and shall order a party to pay them immediately. Bad faith is a high test to meet.
13However, in this case, I am of the view that Nancy’s conduct on this issue amounts to bad faith. I make this finding for the following reasons:
a) In the motion before me on the arrears, each party was seeking relief. Nancy brought a motion seeking to have the arrears from Trimble J.’s motion fixed in the sum of approximately $800,000.00 and ordered payable immediately.
b) I dismissed Nancy’s motion, ordered the payment, on a schedule, of $200,000.00 in arrears and directed the parties that the arrears were otherwise unascertainable and were to be addressed by the trial judge.
c) Nancy then sought to relitigate the issue of arrears through the process of setting the terms of the Order flowing from my March 14th, 2016 decision. It is clear that Nancy was seeking to relitigate this issue both because of the position she was taking with FRO and because of the submission on the fixing of the Order.
14There was no reasonable basis to conclude that any arrears over and above the $200,000.00 I ordered was payable before the trial judge had determined the issues relating to arrears. The position that Nancy took in fixing the Orders on the arrears was taken in bad faith and without reasonable justification. In addition, Nancy’s position on this issue has created unnecessary work for Antony’s counsel.
15Antony should not be out of pocket for the expenses associated with fixing the terms of these Orders.
16This brings me to the costs sought by Antony. The total costs sought by Antony is $5,214.95. This amount is entirely reasonable, given the experience of Antony’s lead counsel, the distribution of work between counsel and law clerk, and the complexity of the issues associated with fixing these Orders.
17As a result, I make the following Orders:
Nancy is to pay costs in the sum of $5,214.95 to Antony within seven (7) days of the date of today’s Orders.
Nancy’s approval as to form and content of this Order is dispensed with.
The Honourable Justice W. M. Le May
DATE: June 10, 2016
COURT FILE NO.: FS-13-79281
DATE: 20160610
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nancy Ann Nella, Applicant v.
Antony Augustus Nella
BEFORE: Justice W. Le May
COUNSEL: Lisa Bombardieri, for the Applicant
Esther L. Lenkinski, for the Respondent
ENDORSEMENT
LE MAY, J.
DATE: June 10, 2016