NEWMARKET COURT FILE NO.: FC-14-46822-01 DATE: 20190307 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Pasqualina Andriano (Scarola) Applicant – and – Mario Andriano, MCSS Legal Services Branch and York Region Social Services Respondent

Counsel: Sheri Hirschberg, for the Applicant Patrick DiMonte, for the Respondent Mario Andriano Sue Paterson for the Respondent Ministry and Region

HEARD: In Writing

REASONS FOR DECISION ON COSTS

McDERMOT J.

BACKGROUND

[1] This is the culmination of a Motion to Change child support brought by the Respondent, Mario Andriano. He sought reduction in child support ordered by Kaufman J. at an uncontested trial in 2015, and to rescind arrears under that order. I heard a three-day trial in this matter during the November 2018 sittings which resulted in a dismissal of the Motion to Change.

[2] Responding to the motion to change were Mr. Andriano’s former wife, Ms. Scarola, as well as the Ministry of Community and Social Services and York Region Social Services, which were assignees of the support order in this matter as Ms. Scarola was receiving public assistance for a period of time during which arrears accrued.

[3] As stated, the motion to change was dismissed. One of the issues discussed between counsel and the court was the fact that Mr. Andriano had failed to bring a motion to set aside the default judgment under which support was originally awarded in this matter, retroactive to the date of separation. He only sought a reduction based upon s. 17 of the Divorce Act and I was unable to find, on the evidence, a change in circumstances since the date of the making of the order.

[4] Another issue before the court was that certain direct payments Mr. Andriano said that he made to Ms. Scarola, which she denied, were actually paid. I found that Mr. Andriano had not proven that he had made direct payments of support beyond those payments acknowledged in the uncontested trial in this matter.

[5] Based upon her success in this matter, and also based upon an offer to settle made by her, Ms. Scarola requests full recovery costs and disbursements in the amount of $26,502.13. The Ministry also requests costs in a much lesser amount of $5,565, including HST.

[6] Mr. Andriano acknowledges that he was the unsuccessful in this Motion to Change and that both Ms. Scarola and the Ministry are, prima facie, entitled to costs. Mr. Andriano acknowledges his obligation to pay costs to the Ministry as requested. He does not acknowledge his obligation to pay costs to Ms. Scarola. He bases his position regarding Ms. Scarola on her misconduct in how she obtained the order in question, which was before the courts.

RESULTS

[7] For the reasons set out below, Ms. Scarola is entitled to her costs in the amount of $26,502.13. Based upon admissions made by Mr. Andriano in his submissions, the Ministry is entitled to its costs in the amount of $5,565. Costs may be recovered in the same manner as support.

ANALYSIS

[8] It is undoubted that Mr. Andriano was the unsuccessful party in this motion to change. His claim was dismissed. Under r. 24(1) of the Family Law Rules, the party enjoying success in a proceeding is entitled to his or her costs.

[9] This is even more so where an offer to settle is made. Ms. Scarola made an offer to settle on June 29, 2018. In that offer, she offered to reduce child support to $461 per month and further agreed that arrears would be reduced to $15,000, repayable at the rate of $250 per month. She asked for $3,065 plus late fees and collection fees, for the child’s orthodontic expenses. Those claims were ordered at trial.

[10] It is clear that the offer to settle is a genuine attempt to compromise, as it does not just recite a dismissal of the motion but offers a reduction in the child support and the arrears: see Beaver v. Hill, 2018 ONCA 840.

[11] Normally, where an offer is made under r. 18, a party is entitled to full recovery costs from the date of the offer if it complies with the rule and the party who made the offer obtains an order more favourable than that of the offer itself. Based upon the result at trial, a dismissal of the motion to change leaving child support and arrears untouched, it is clear that Ms. Scarola has bettered her offer to settle by the results at trial.

[12] The Court has, however, under r. 18(14) the discretion to order “otherwise” in considering a party’s offer to settle and the costs consequences arising from it. This gives the court discretion to order costs which are less than full recovery even where he or she has bettered an offer to settle at trial: see M.(C.A.) v. M.(D.), [2003] O.J. No. 3707 (C.A.). That discretion can be exercised, in my view, where the party who made the offer is guilty of unreasonable litigation conduct, which also can displace the presumption of costs in favour of a successful party under rr. 24(4) and 24(5). Otherwise, a party making an offer to settle would feel free to indulge in whatever conduct he or she saw fit, unreasonable or reasonable. This could not be the intention of r. 18.

[13] What unreasonable conduct is Mr. Andriano alleging against Ms. Scarola?

[14] Firstly, Mr. Andriano suggests that Ms. Scarola did not act in good faith after the termination of the relationship. He says that Ms. Scarola falsely promised reconciliation and then pulled the rug out from under him by purchasing a home with her daughter and not jointly with Mr. Andriano as he says he expected. He claims that this resulted in his relapse into drug use.

[15] I note that there was a conflict on the evidentiary record regarding this issue. Ms. Scarola indicated to the court at trial that she separated from Mr. Andriano around the time of the sale of the matrimonial home because he would not contribute to the expenses of the home and would not provide any clarity as to his financial situation during marriage, hiding his money and accepting numerous cash payments at work. She indicated, contrary to Mr. Andriano’s position, that she never intended to reconcile and never represented that to Mr. Andriano. She said that she never intended to buy another home in with the Respondent and that she decided to buy the home with her daughter because of her own credit history and because her daughter also had money to contribute to the purchase of the home. That evidence was corroborated by the evidence of Ms. Agiro, Ms. Scarola’s daughter. According to Ms. Scarola, no rug was pulled out from under Mr. Andriano’s feet as there was no promise of reconciliation.

[16] In my decision, I note that I found Mr. Andriano’s evidence to be without credibility. His evidence was therefore unreliable. I also indicated that where there was conflict on the evidence, I preferred Ms. Scarola’s evidence to that of Mr. Andriano. Because of this, I do not accept Mr. Andriano’s version of events and my findings indicate that. I do not find that Ms. Scarola indulged in unreasonable conduct in her actions post-separation.

[17] Secondly, Mr. Andriano also alleges improper conduct of Ms. Scarola in obtaining the order in default of appearance, which was an issue in these proceedings. Mr. DiMonte alleges on behalf of Mr. Andriano that when Ms. Scarola attended to file her Form 23C Affidavit, she was told an income figure was necessary, so she filled in a false figure as a “convenient figure to insert in the paperwork without any reference to reality.”

[18] This, again, goes against the evidence led at trial. Ms. Scarola testified that she filled in the $70,000 figure based upon what Mr. Andriano’s brother’s widow advised as to the income from his food truck when Mr. Andriano took over his brother’s route after his brother’s death. She did not “make up” the figure and advised the court as to where she obtained that annual income figure. There was never, as I recall, direct evidence from Ms. Scarola as to what she did when she attended at the counter to file her Form 23C affidavit.

[19] Further, although Mr. Andriano denied ever making $70,000 per year, his evidence on his income was vague and uncertain and his motion to change was dismissed because he did not prove a change in his income since the making of the order; he led evidence that suggested that he never made much income at all, both before and after the order. Contrary to these assertions, he also represented to BMW when he bought a car that he made $50,000 per annum. He did not attack the making of the order itself under r. 25(19).

[20] In dealing with costs, Mr. Andriano cannot now be heard as complaining about an issue that he failed to raise at trial, even though he probably should have. If Mr. Andriano now wishes to bring a further application to set aside that order, he can complain about Ms. Scarola’s conduct in obtaining that order at that time.

[21] Finally, Mr. Andriano complains that Ms. Scarola misled him prior to trial by failing to “indicate that the CIBC bank statements were false” in respect of her denial of a direct payments of child support over a period of two years prior to the order being made. The CIBC statements do not particularize the payments alleged to have been made as child support and I did not find them to be such. However, Mr. Andriano now files a number of cheques payable to Ms. Scarola which he said he would have filed had Ms. Scarola made an issue of Mr. Andriano’s direct payments.

[22] I note that Mr. Andriano never raised the issue of direct payments in his Motion to Change or anywhere in his pleadings. Had he done so, then Ms. Scarola would have had to respond to that issue in her Response to Notice to Change. I assume that she did not object to the CIBC bank statements as being false because the issue was not raised in Mr. Andriano’s pleadings.

[23] The original default judgment acknowledged a number of direct payments by Mr. Andriano; it was later amended to reduce those direct payments by Mr. Andriano. He brought a 14B Motion to change that amount; however, that was dismissed and he never followed through with a Motion to Change at that time. It is his own litigation conduct by failing to follow through that resulted in the matter being raised at trial. It appears that, in fact, the issue was raised at trial without warning to Ms. Scarola.

[24] Mr. Andriano purports to file cheques to prove that he made the alleged payments to Ms. Scarola. Those cheques were obviously available to Mr. Andriano and could have been filed as part of his evidence; however, they were not. Again, only Mr. Andriano was to blame for this and I cannot consider costs submissions containing evidence available but not led at trial to find unreasonable conduct. The same would apply to the cheques that Mr. Andriano said were not accounted for by Ms. Scarola in the s.7 expenses claimed by her in her Response to Motion to Change.

[25] I finally note that there does not appear to be an Offer to Settle made by Mr. Andriano. That is, in itself, unreasonable conduct on his part: see J.S. v. M.M., 2016 ONSC 1566. This would mean that if a party is guilty of unreasonable conduct in this matter, it is Mr. Andriano.

[26] I therefore find that there is no unreasonable conduct on the part of Ms. Scarola.

[27] Therefore, the presumption of full recovery costs set out in r. 18 stands.

CONCLUSION

[28] Ms. Scarola made her offer to settle that she relies upon prior to formally retaining counsel in July 2018. The costs that Ms. Scarola claims were all incurred after the date of the Offer.

[29] A review of the Bill of Costs filed by Ms. Scarola does not disclose any unreasonable costs. The disbursements set out in the Bill of Costs are also reasonable. It is to be noted that the full recovery amount claimed of $26,502.13, inclusive of HST as the costs of preparing for and conducting a three-day trial are reasonable, considering the issues before the court, as well as the time taken at trial. The hourly rates claimed by counsel are also reasonable. I note that in the trial, Ms. Scarola’s counsel had to address the confusion that Mr. Andriano had in respect of what change in circumstances would warrant a change in support, including the issues raised by s. 17(4) of the Divorce Act and Gray v. Rizzi, 2016 ONCA 152.

[30] In his costs submissions, Mr. Andriano says that Ms. Scarola’s costs should be measured by those of the Respondent Ministry and York Region Social Services, which are in the amount of $5,565. However, I note that it was apparent from the trial and the conduct of counsel at trial that the “heavy lifting” was done by counsel for Ms. Scarola. The witnesses were all called by Ms. Scarola’s counsel and the in-depth cross-examination was carried out by Ms. Hirschberg on behalf of Ms. Scarola. Questions asked by Ms. Paterson on behalf of the Ministry, were supplementary to Ms. Hirschberg’s cross-examination. It is apparent that the majority of costs would lie with Ms. Scarola, who had the most to lose in this proceeding.

[31] I therefore find that the costs claimed by Ms. Scarola are reasonable and proportionate.

[32] As this proceeding was in respect of child support, the costs can be collectable as support by the Director.

[33] There will therefore be an order as follows: a. Ms. Scarola will have full recovery costs of $26,502.13, inclusive of disbursements and HST; b. The Respondents, MCSS Legal Services Branch and York Region Social Services, shall have their costs of $5,565 in total, inclusive of disbursements and HST; and, c. All costs are collectable as support by the Director of the Family Responsibility Office.

Mr. Justice J.P.L. McDermot

Released: March 7, 2019

Cited Cases and Legislation

Legislation:

• title: "Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)" url: "https://laws-lois.justice.gc.ca/eng/acts/d-3.4/index.html"
• title: "Family Law Rules, O. Reg. 114/99" url: "https://www.ontario.ca/laws/regulation/990114"

Case Law:

• title: "Beaver v. Hill, 2018 ONCA 840" url: "https://www.canlii.org/en/on/onca/doc/2018/2018onca840/2018onca840.html"
• title: "M.(C.A.) v. M.(D.), [2003] O.J. No. 3707 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/2003/2003canlii18880/2003canlii18880.html"
• title: "J.S. v. M.M., 2016 ONSC 1566" url: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc1566/2016onsc1566.html"
• title: "Gray v. Rizzi, 2016 ONCA 152" url: "https://www.canlii.org/en/on/onca/doc/2016/2016onca152/2016onca152.html"