Overview

[1] The parties argued a contested costs motion before me on July 28, 2022. After hearing submissions, I granted costs to the applicant in the amount of $2,754.55, with written reasons to follow. These are those reasons.

Discussion

[2] The parties were married on August 8, 2018.

[3] The respondent was convicted of murder and is presently incarcerated at Collins Bay Institution in Kingston, Ontario.

[4] The applicant gave birth to a child born December 14, 2021.

[5] The respondent wrote to the applicant through counsel in February 2022 advising that he wanted to separate.

[6] The application was commenced on March 8, 2022.

[7] The parties attended To Be Spoken To (TBST) Court on March 28, 2022 where Diamond J. directed the parties to attend an Urgent Case Conference on April 27, 2022. Diamond J. also made a Consent Order that the respondent pay the applicant $15,000 in generalized support on a temporary and without prejudice basis.

[8] On April 21, 2022, the parties attended again before Diamond J. at a Case Conference. The respondent was seeking an adjournment of the April 27 Urgent Case Conference as respondent's counsel was unable to obtain substantive instructions from her client. The Urgent Case Conference was rescheduled to May 16, 2022. Diamond J. made an order that, in the interim, the applicant pay a further $15,000 in generalized support to the respondent on or before April 29, 2022. This "Second $15,000 Order" was not on consent.

[9] Following the parties' attendance at the Case Conference on May 16, 2022, Diamond J. made a Consent Order that the respondent make a $50,000 advance payment on equalization to the applicant on a without prejudice basis by May 31, 2022. Diamond J. also ordered that the applicant's motion for interim child and spousal support proceed on the regular motion list on June 28, 2022. That support motion was argued before me on June 28 and, as of July 28, 2022, my decision was still under reserve.

[10] The respondent sought leave from the Divisional Court to appeal the Second $15,000 Order. As part of his leave to appeal motion, the respondent brought a motion to stay the Order of Diamond J. A stay was never issued. On June 27, 2022, the Divisional Court denied leave to the respondent and ordered costs against the respondent fixed at $1,500. On June 29, the Divisional Court confirmed that the stay motion was moot and was dismissed on a without costs basis.

[11] I conclude from the above that, as of June 27, the respondent knew or ought to have known that he must pay $15,000 to the applicant, a payment that ought to have been made to the applicant by April 29 as Diamond J. originally ordered two months earlier.

[12] Applicant's counsel sent correspondence to respondent's counsel on June 27 and June 28 asking when the $15,000 generalized support payment along with the $1,500 costs payment would be made. Respondent's counsel responded with an email advising that she will be out of town largely on vacation but checking email periodically.

[13] The applicant filed a Notice of Motion dated July 7, 2022 seeking to strike the respondent's pleadings and proceed to an Uncontested Trial on the basis that the respondent had failed to comply with (a) the Order of Diamond J. dated April 21, 2022; the Automatic Order dated March 14, 2022; and (c) the Order of the Divisional Court dated June 27, 2022.

[14] Ultimately, the respondent paid the "second $15,000" on July 22, 2022. As of July 28, the $1,500 costs order from Divisional Court remained unpaid.

[15] The applicant seeks full indemnity costs of $4,590.92 based on her submitted Bill of Costs on the basis that:

(a) The respondent failed to pay the Second $15,000 Order by April 29, 2022.

(b) The respondent's appeal to Divisional Court and stay motion were essentially stalling tactics and had virtually no chance of success.

(c) After the Divisional Court dismissed the leave application on June 27, the respondent should have paid the $15,000 immediately but still resisted payment.

(d) The respondent refused to address when payment was being made necessitating the bringing of the enforcement motion.

(e) Notwithstanding that payment was ultimately made on July 22, the applicant had already incurred costs and the respondent made no offer to settle the costs of the motion.

(f) The circumstances of the motion, even though the $15,000 was ultimately paid, merit costs on a full indemnity basis.

[16] The respondent disagrees and argues that: (a) it is the respondent who should be awarded costs; (b) alternatively, the decision on costs of the within motion should be deferred to a further date since the paternity of the child is still being discussed and may be subject to a future motion; (c) in the further alternative, no costs should be awarded.

[17] The respondent further submits that:

(a) He exercised his legal right to appeal the Second $15,000 Order and that, having being unsuccessful, it was always his intention to pay but he was securing funds from third parties.

(b) As he is incarcerated, it takes additional time to convey instructions to his counsel.

(c) The applicant insisted on the motion being brought such that the respondent was unable to file responding material on the motion.

(d) The $15,000 was ultimately paid on July 22 and the hearing of the motion on July 28 was unnecessary.

Order

[18] I find that the applicant's enforcement motion was brought because there was a justifiable and legitimate doubt as to whether the applicant was ever going to be paid. The respondent's position that costs against him are not warranted because he was always securing the funds and the motion was premature are not supported by the record. The applicant has been the successful party on the motion, albeit the circumstances do not satisfy payment of costs on a full indemnity basis.

[19] In the circumstances, I find, pursuant to the factors identified in Rule 24(12) of the Family Law Rules, that costs of $2,754.55 should be paid based on the following calculation:

Full indemnity costs: $4,590.92 (inclusive of HST, no disbursements)

Full indemnity costs: $4,062.76 (not including HST)

Partial indemnity costs at 60%: $2,437.66

Partial indemnity costs plus HST: $2,754.55

[20] The respondent shall pay the applicant $2,754.55 within 30 days of July 28, 2022, the date on which I advised the parties of my costs ruling albeit with written reasons to follow. The parties may send me a Draft Order through my judicial assistant: Patricia.Lyon-McIndoo@ontario.ca.

Pinto J.

Released: August 2, 2022

COURT FILE NO.: FS-22-28540

DATE: 20220802

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Robyn Amy Louise Hohmeier

Applicant

– and –

Martino Caputo

Respondent

COSTS DECISION

Pinto J.

Released: August 2, 2022

Hohmeier v. Caputo , 2022 ONSC 4504

Case Summary

Overview

Discussion

Order

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues