Court File and Parties

COURT FILE NO.: D/966/96 DATE: September 14, 2016 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Joseph Rosati and Linda Rosati, Applicants AND: Laura Reggimenti, Respondent

BEFORE: Turnbull, J.

COUNSEL: Paul Amey, Counsel, for the Applicants Gary Joseph and Ryan Kniznik, Counsel, for the Respondent

Costs Endorsement

re: NON-DISSIPATION/ MAREVA INJUNCTION ORDER

[1] The respondent Laura Reggimenti brought a motion for a non-dissipation/ Mareva injunction order against the world wide assets of the applicants Joseph Rosati and Linda Rosati. In the reasons provided in a written ruling on May 2nd, 2016, the motion was dismissed. I asked counsel to provide me with written costs submissions and I have received those and considered them in this ruling.

[2] Rule 24(1) of the Family Law Rules creates a presumption that the successful party is entitled to the costs of a motion. In my view, there is no reason why that presumption should not apply in favor of the applicants in this motion. The motion was rejected partially because there was no finding of “real risk” that the applicants were dissipating assets out of the ordinary court of business or living. The court also rejected the respondent’s claim for a Mareva injunction because it did not meet the test of a strong prima facie case.

[3] In her factum, the respondent alleged that the applicants were removing any equity in their properties and were inferentially acting in a way intended to simply defeat any claims she may have to those assets in the event she is successful at trial. That argument was rejected. The general tone of submissions made by the respondent was that the applicants were acting in some form of dishonest or devious way to defeat the jurisdiction of the court over assets in the event judgment is granted to the respondent.

Position of the Respondent

[4] The respondent has submitted that the applicant’s request for costs of $18,231.70 on a full recovery basis inclusive of HST and disbursements, payable forthwith is unreasonable.

[5] Counsel for Ms. Reggimenti has cited the case of Ogg v. Ogg, 2016 Carswell Ont 6473 (S.C.J.), paragraph 32 (Emery, J.) where the court held that costs in a family case should be awarded on a partial indemnity basis unless there is a good reason founded upon a factor in the Family Law Rules to do otherwise.

Analysis

[6] I concur with Ms. Reggimenti’s submissions that her motion and litigation conduct cannot properly be characterized as egregious or reprehensible warranting a departure from a partial indemnity scale. Objectively, looking at the way in which Mr. and Mrs. Rosati have been organizing their financial affairs, it is not unreasonable for one to assume that within the law they are arranging their affairs to make Mr. Rosati as “judgment proof” as possible. That is not illegal. Until a judgment is rendered against either of them, they are entitled to carry on business and arrange their affairs in any legal way without restrictions, provided the court if satisfied they are not dissipating assets and/or removing them from the jurisdiction of the court. I am satisfied the motion was not premised upon an assertion of fraudulent intent to defeat Ms. Reggimenti as a possible future creditor. The motion was founded on an evidentiary record which laid out the property transactions and available equity to satisfy any judgment in Ms. Reggimenti’s favor.

[7] In the circumstances, costs should be awarded on a partial indemnity basis to the applicants.

Quantum of Costs

[8] I have reviewed the costs summary provided by Mr. Amey on behalf of his client. I have reviewed the hours billed and the time spent and find them to be reasonable. Under Rule 24 of the Family Law Rules, I am satisfied that this was an important issue for Mr. Amey’s clients. If the order had been granted, Mr. and Mrs. Rosati’s ability to deal in commercial matters using their personal funds would have been severely restricted. I do not consider that either party acted unreasonably in arguing this motion. The time spent on this motion as represented in the costs summaries of Mr. Joseph and Mr. Amey reflect the amount of time and preparation that one would ordinarily expect in such a matter.

[9] Mr. Amey is an extremely experienced civil litigator and his hourly billing rate of $490.00 is commensurate with some one of his experience. Certainly his fees are not unreasonable and should have been within the reasonable expectations of Ms. Reggimenti as evidenced by her similar account from Mr. Joseph.

[10] I have taken into account that Mr. Amey had had a law clerk and a law student perform some of the duties required to prepare and present this motion. This has reduced the costs incurred and those amounts claimed as fair and reasonable.

Conclusion

[11] It is ordered that the respondent shall pay to the applicants their partial indemnity costs fixed in the sum of $12,113.88.

[12] Ordinarily I would require these costs to be paid within 30 days of the release of these reasons. However, in light of the earlier rulings made by Sloan, J. and Campbell, J. I order that the costs of various motions will be paid at the conclusion of the trial or taken into account when credits and debits are determined between the parties.

Released: September 14, 2016

Turnbull, J.