Court File and Parties

COURT FILE NO.: FC-14-2612 DATE: 2018/09/17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michael Salvatore Piacenti, Applicant AND Ashley Elizabeth Thomson, Respondent

BEFORE: Justice R. Ryan Bell

COUNSEL: Applicant, self-represented Leighann Burns, for the Respondent

HEARD: In writing

Endorsement on Costs

[1] The trial of this application was heard over the course of eight days. The primary issues determined were: (i) custody of the child of the parties; (ii) access to the child by Mr. Piacenti; (iii) ongoing monthly child support to be paid by Mr. Piacenti to Ms. Thomson based on an imputed income to Mr. Piacenti; (iv) the amount of retroactive child support to be paid by Mr. Piacenti to Ms. Thomson; and (v) the sale of the matrimonial home. Ms. Thomson also sought a restraining order against Mr. Piacenti.

[2] Ms. Thomson was entirely successful on all issues except with respect to her request for a restraining order and the issue of access. On access, I determined that a middle ground between the parties’ positions is in the child’s best interests.

[3] The parties were invited to deliver written submissions on the issue of costs. I received written submissions from Ms. Thomson’s counsel. I received no written submissions from or on behalf of Mr. Piacenti. My ruling with respect to costs is therefore based on the manner in which the trial was conducted and the written submissions received from Ms. Thomson’s counsel.

[4] Ms. Thomson requests that Mr. Piacenti be ordered to pay costs of $104,706.46, inclusive of disbursements and HST. Ms. Thomson’s position is that she is entitled to her costs for the time spent preparing for and at trial, as well as the time preceding trial, particularly in light of Mr. Piacenti’s conduct throughout the proceedings.

Analysis

[5] Based on Ms. Thomson’s success at trial, she is entitled to her costs of the application. Rule 24(1) of the Family Law Rules sets out the presumption that the successful party is entitled to their costs. There is no basis upon which to deprive Ms. Thomson of any portion of the costs to which she is entitled.

[6] Ms. Thomson’s position is that although there have been several awards of costs against Mr. Piacenti as a result of motions in the proceeding, she should nevertheless be entitled to recover costs in relation to these steps as the costs awarded do not fully compensate Ms. Thomson for the actual costs of the litigation. Counsel has not drawn to my attention any motions where costs were reserved to the trial judge. Accordingly, I do not include in the total time associated with the application, time associated with motions in the proceeding.

[7] Mr. Piacenti commenced his application in November 2014. I find that work associated with Ms. Thomson’s response to the application commenced on November 21, 2014. I am not prepared to allow costs in relation to time spent by counsel prior to November 21, 2014.

[8] I find that approximately 390 hours of counsel’s time was associated with responding to and dealing with the application, including preparation for and attendance at the eight-day trial. I find that the time spent was reasonable.

[9] I also find that with respect to the 390 hours, Ms. Thomson is entitled to full recovery of her costs. I reach this conclusion for the following reasons.

[10] First, Ms. Thomson made three comprehensive offers to settle the application: October 9, 2015, September 24, 2017 and January 14, 2018. I have reviewed the offers to settle made by Ms. Thomson. I am satisfied that the outcome at trial was as or more favourable to Ms. Thomson than the terms of the offers to settle.

[11] Second, I find that Mr. Piacenti’s behaviour in relation to the issues in the case, from the time they arose, was unreasonable (see Rule 24(5)). By way of example, I referred in my judgment to Mr. Piacenti’s claim not to have received certain of Ms. Thomson’s documents which necessitated a ruling by me at the commencement of the trial that full disclosure had been made by Ms. Thomson prior to the anticipated September 2017 trial date. Until trial, Mr. Piacenti refused to produce or even acknowledge the existence of the most recent appraisal on the matrimonial home. I accept Ms. Thomson’s position that Mr. Piacenti’s conduct in this regard made it difficult for her to make a reasonable settlement offer in relation to the matrimonial home. Mr. Piacenti blamed the litigation for adversely affecting his ability to work and Ms. Thomson’s refusal to transfer title in the matrimonial home to him for adversely impacting his ability to invest in his business and to pay s. 7 childcare expenses. These positions taken by Mr. Piacenti were unreasonable. I also found that Mr. Piacenti was responsible for the delays in bringing the application to trial.

[12] Third, I agree with the submission on behalf of Ms. Thomson that although the matters before the court were not particularly complex, they were extremely important to Ms. Thomson and were made more challenging by Mr. Piacenti’s conduct.

[13] Fourth, I am satisfied that the hourly rate claimed ($189.00 - $208.00) for Ms. Thomson’s counsel (currently in her eleventh year of practice) is reasonable.

[14] Based on all of the above and Rule 24 of the Family Law Rules, I order that Mr. Piacenti shall pay costs to Ms. Thomson of the application in the total amount of $90,000.00, inclusive of disbursements and HST.

Justice Robyn M. Ryan Bell Date: September 17, 2018

COURT FILE NO.: FC-14-2612 DATE: 2018/09/17 ONTARIO SUPERIOR COURT OF JUSTICE RE: Michael Salvatore Piacenti, Applicant AND Ashley Elizabeth Thomson, Respondent BEFORE: Justice R. Ryan Bell COUNSEL: Applicant, self-represented Leighann Burns, for the Respondent ENDORSEMENT on costs RYAN BELL J. Released: September 17, 2018