Court File and Parties

Court File No.: CV-13-475825 Date: 2016-06-27 Ontario Superior Court of Justice

Between: ELENA MODANESE, Plaintiff – and – SANTE MODANESE, also known as SANTE MODANEESE and DONNA LESSARD, also known as DONNA HIXSON, also known as DONNA LESSARD HIXSON, Defendants

Counsel: Adam Wainstock, for the Plaintiff Leigh Harrison-Wilson, for the Defendant Donna Hixson

Heard: In writing

Before: Perell, J.

Reasons for Decision - Costs

[1] The Plaintiff, Elena Modanese, sued her son, Sante Modanese, and Sante’s common law spouse Donna Hixson. Ms. Hixson moved for summary judgment to have the claim against her dismissed. She was successful. I dismissed the action against her, with costs of the summary judgment motion fixed at $15,000, all inclusive. See Modanese v. Modanese, 2016 ONSC 2818.

[2] Ms. Hixson now claims costs for her successful defence of Mrs. Modanese’s action.

[3] Ms. Hixson submitted a bill of costs for $48,781.94, all inclusive, from which she deducted the $15,000 awarded for the summary judgment motion for a partial indemnity claim for costs of $33,781.94, all inclusive.

[4] Mrs. Modanese, however, submits that once double counting for the summary judgment motion is removed and once excessive or non-recoverable fee claims for the defence of the action are removed, the appropriate additional award of costs is $2,000, all inclusive of disbursements and applicable taxes.

[5] I have reviewed Ms. Hixson’s bill of costs and it does appear that she could have claimed more than $15,000 for the summary judgment motion, which she cannot now recover in her claim for the costs of successfully defending the action against her.

[6] However, I disagree with Mrs. Modanese’s submission, that virtually all of the costs incurred by Ms. Hixson were associated with the summary judgment motion or for legal services that were excessive or outside of the defence of the action.

[7] Having reviewed the bill of costs and applying the various well-known criteria that guide the court’s discretion with respect to costs, in addition to the $15,000 that she has already been awarded, I award Ms. Hixson $20,000 all inclusive, for a total award of $35,000, all inclusive of fees, disbursements ($2,509.12), and applicable taxes.

[8] Order accordingly.

Perell, J. Released: June 27, 2016