Court File and Parties

COURT FILE NO.: FS-15-49916 DATE: 2018-12-24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Melissa Kerr, Applicant AND: Massimo Panaccione, Respondent

BEFORE: G. E. Taylor

COUNSEL: Chad Rawn, Counsel for the Applicant Massimo Panaccione, in person

Cost Endorsement

[1] After a four-day trial I imputed to the respondent an annual income of $75,000 and ordered him to pay child support of $700 monthly. Although the respondent did not agree with the amount claimed by the applicant for section 7 expenses incurred to the date of the trial, he did not challenge the amount claimed and accordingly I granted judgment in favour of the applicant for $3,954 as the amount owing for section 7 expenses. Lastly, I found that the parties had agreed to the equalization of net family properties at the time of the completion of the sale of the matrimonial home, and accordingly dismissed both parties’ claims for an equalization payment. Because of my conclusion regarding equalization, it was not necessary to decide the issue of the date of separation.

[2] The parties have made written submissions regarding costs.

[3] The applicant seeks costs on a full indemnity basis in the total amount of $34,041.25. The applicant relies on the conduct of the respondent throughout the course of this proceeding, an offer to settle dated April 9, 2018 and the result at trial as justifying an award of costs on a full indemnity basis.

[4] The cost submission of the respondent consists of two and a half pages setting out various activities, apparently undertaken on specific days. This document indicates that the respondent spent 570 hours in relation to this case. The respondent then applies an hourly rate of $50 to the hours spent to arrive at the sum of $28,575, plus disbursement of $1,869. I presume the respondent seeks an award of costs in his favour in the total amount of $30,394. The respondent was unsuccessful at trial. He is not entitled to costs.

[5] The applicant’s offer to settle proposed that income be imputed to the respondent increasing in $5,000 annual increments from $35,000 in 2015 to $50,000 in 2018. This would have resulted in the respondent paying a lesser amount in child support than was ordered at the trial. The offer to settle proposed that an outstanding cost award against the respondent be offset against an equalization payment, which would have resulted in the respondent receiving an equalization payment of $1,000. The offer to settle provided that section 7 expenses be shared equally from January 1, 2015 without specifying an amount owing for past expenses incurred by the applicant. Finally, the offer to settle proposed no costs if it was accepted promptly and the modest sum of $2,000 if accepted any time up until the commencement of the trial. I therefore find that the result at trial was as favourable as or more favourable to the applicant than the terms of the offer to settle.

[6] However, the applicant presented a bill of costs which did not indicate the dates on which various steps in the proceedings occurred. Accordingly, I find it impossible to accurately determine an amount for enhanced costs to be payable to the applicant subsequent to the date of the offer to settle.

[7] I accept that the conduct of the respondent was far from ideal and the attitude of the respondent resulted in the proceeding being more protracted than it should have been. However, the way in which the case was conducted by the applicant was also far from efficient.

[8] It was the applicant who first claimed entitlement to an equalization payment almost 4 years after the settlement of equalization of net family property as found at trial. Although at the time of trial the applicant’s position had reversed, it was she who initially took the position that there was no settlement. It was the applicant’s position that she was entitled to an equalization payment that resulted in this case being significantly more complicated than it should have been.

[9] At a trial management conference held on May 17, 2017, the applicant was ordered to file the trial record by August 24, 2017. She failed to do so. The trial record was filed by the respondent. The applicant was ordered to serve a request to admit by June 1, 2017 and failed to do so. The applicant was ordered to serve her trial affidavit by July 21, 2017. Her trial affidavit was not served until April, 2018 when the case was first called for trial. At that time, the trial judge adjourned the case because of the failure of both parties to comply with the orders made at the trial management conference. The applicant did not serve a net family property statement until the last day of trial, prior to the start of final submissions.

[10] Notwithstanding the conduct of the respondent during the course of this proceeding, I am not prepared to order him to pay the full indemnity costs of the applicant. I would have been prepared to order the respondent to pay partial indemnity costs to the date of the offer to settle and full recovery costs thereafter had I been provided with adequate information to determine the appropriate amount of costs for each time period.

[11] I am fixing costs. I am not assessing costs. The amount awarded in costs must be reasonable from the perspective of the party against whom the order is made. In all of the circumstances, a fair and reasonable amount to require the respondent to pay to the applicant is the sum of $17,500, inclusive of disbursements and HST, but in addition to the $1,000 in costs ordered to be paid by the respondent in connection with the motion heard on February 7, 2018.

[12] The costs awarded by me and the outstanding balance of the cost award from the February 7, 2018 motion shall be paid to the applicant from the monies currently being held in trust by Jayson Schwarz, barrister and solicitor. After payment of these cost awards, the balance of the monies being held in trust by Jayson Schwarz, barrister and solicitor, shall be paid to the respondent.

“G.E. Taylor” G.E. Taylor J. Date: December 24, 2018