CITATION: Sacco v. Sacco, 2017 ONSC 7576

NEWMARKET COURT FILE NO.: FC-17-054524-00

DATE: 20171218

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jonelle Sacco, Applicant

AND:

Tommaso Sacco, Respondent

BEFORE: The Honourable Justice G. M. Mulligan

COUNSEL: Samantha Dineno, Counsel, for the Applicant

Annamaria Perruccio and Christine Lu, Counsel, for the Respondent

HEARD: In Writing

COSTS ENDORSEMENT

[1] The Applicant, Jonelle Sacco, originally brought an urgent motion seeking the sole custody of the children of the relationship with access to the Respondent, Tommaso Sacco, on a limited basis at a supervised access centre. The motion was returnable before Bennett J. on September 22, 2017. Bennett J. made a temporary order indicating that the children of the relationship remain in the primary care of the Applicant with no access to the Respondent, pending the return of the motion. The Respondent was then given an opportunity to file responding materials. The Respondent did so and the matter proceeded before me on October 4, 2017.

[2] For reasons issued October 6, 2017, the Applicant was successful on the motion. The Respondent’s motion for access with the assistance of family members or friends was dismissed. The Order granted enabled the Respondent to have access to one of the children at a supervised access centre. As noted in paragraph 16 of my Order:

I am satisfied that access [at] a supervised access centre for one hour per week with respect to the oldest child of the marriage, Arianna Emily Sacco, born August 12, 2016 is appropriate, as a first step in re-establishing access between this child and her father. I see no benefit in ordering supervised access for the infant child, now one-and-a-half months of age, in this environment.

Position of the Parties

[3] As a successful party, the Applicant seeks costs and refers to Rule 24 of the Family Law Rules: “There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.”

[4] As the Applicant notes in paragraph 19 of her written submissions, the total she incurred for legal fees, disbursements and HST is in the amount of $14,086.58. The Applicant is seeking costs on a full recovery basis or, in the alternative, on a substantial indemnity basis in the amount of $11,000.00.

[5] The Respondent opposes the costs sought on the basis that he was acting reasonably and in good faith in seeking a result that was in the best interests of the children. The Respondent notes that that this Court made an Order referring the matter to the Office of the Children’s Lawyer; however, that Order was made on consent of both parties.

[6] The Respondent also refers to his dire financial situation as a factor mitigating any costs award against him.

Analysis

[7] It is always helpful if the Court is provided with the costs incurred by the unsuccessful party in assessing what an unsuccessful party might reasonably have expected to pay. In this case, no such admission was made by the Respondent.

[8] In addition to the guidance provided in the Family Law Rules with respect to costs, the Court of Appeal provided these overarching comments about costs in family law matters in Berta v. Berta, 2015 ONCA 918, 2015 O.J. No. 6844, at paragraph 94:

…a successful party in a family law case is presumptively entitled to costs. An award of costs, however, is subject to the factors listed in r. 24(11), the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith) and r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party [citation omitted].

Conclusion

[9] I am satisfied that costs follow the event and that the Applicant, Jonelle Sacco, is entitled to costs. However, I find no circumstances exist here to fix costs at an elevated rate. I am satisfied that costs payable by the Respondent to the Applicant in the amount of $7,500.00 is fair and reasonable under the circumstances. Costs are payable within thirty days of the date of this order.

MULLIGAN, J.

Date: December 18, 2017