Court File and Parties

COURT FILE NO.: FC-19-1222 DATE: 2023/10/04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Jennifer DeGiorgio, Applicant – and – Nicola DeGiorgio, Respondent

Counsel: Sarah Giamberardino for the Applicant Christopher Deeble for the Respondent

HEARD: In Writing

Decision on Costs For September 26-27, 2022 Trial on SUPPORT

Justice Engelking

[1]

Background

A bifurcated trial of this matter was held, with the parenting issues being addressed in the May 2022 trial sittings, and the financial issues being addressed in the September 2022 trial sittings. On November 28, 2022, my decision on the parenting issues was released to the parties. On April 14, 2023, my decision on costs for the trial on the parenting issues was released, as were my Reasons for Decision on the trial held on September 26 and 27, 2022, on the outstanding financial issues. In my decision, I invited written submissions on the issue of costs of the September 2022 trial if the parties were unable to resolve same. I received submissions from both. This is my decision on the costs of the September 2022 trial.

2While Ms. Giamberardino acted for Jennifer in the September trial, Ms. Angela Livingstone has provided her submissions on costs. Similarly, while Mr. Deeble acted for Nicola in the September trial, Mr. Durgali has provided his submissions on costs. I have left Ms. Giamberardino and Mr. Deeble as counsel of record for the parties respectively in the style of cause herein.

[3]

Positions of the Parties

Jennifer seeks an order for $54,140 in costs for the trial on a partial indemnity basis.

4Nicola seeks an order for $20,000 in costs for the trial, as partial compensation for the expense to which he was put to defend what he references as Jennifer’s “unreasonable claims”.

[5]

The Law

The Ontario Court of Appeal has held that the Family Law Rules, O.Reg. 114/99 (“Rules”) on costs are “designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement: and (3) to discourage and sanction inappropriate behaviour by litigants.” [1]

6Rule 24(12) of the Rules sets out a list of factors the court shall consider in determining an appropriate amount of costs, including that there be reasonableness and proportionality in any costs award. [2] Factors to be considered include each parties’ behaviour, their time spent, any offers to settle, legal fees, expert witness fees and any other properly paid expenses. [3] Rule 18(14) provides that there are cost consequences to not accepting an offer if the criteria in that rule are met. [4]

[7]

Analysis

Jennifer was the more successful of the parties at trial. She was successful in her claim that her entitlement to spousal support had a compensatory as well as non-compensatory basis. While Jennifer did not obtain an order for the quantum of spousal support she was seeking, the outcome of the trial was more favorable to her in this regard, both as it related to retroactive and ongoing spousal support, than what Nicola was proposing. Similarly, while Jennifer did not receive an order for the duration of spousal support she was seeking, the outcome of the trial was more favorable to her in this regard than what Nicola was proposing as well. Jennifer was also successful with respect to her position about the timing of payment by Nicola of child support arrears.

8Nicola was successful as to the start date for spousal support being August 1, 2019, as opposed to May 1, 2019. He was also successful in obtaining an order for incremental payment of his outstanding spousal support arrears owing.

9Both parties exchanged Offers to Settle. Nicola served four non-severable offers between June of 2019 and April of 2022, and one severable offer on the eve of trial in September of 2022. The outcome of trial was more favorable to Jennifer than were his offers as they related to child and spousal support.

10Jennifer served four severable Offers to Settle between March of 2021 and September of 2022. Her March 31, 2021, offer contained two terms which were ordered at trial: a) that her entitlement to spousal support was both compensatory and non-compensatory, and b) that spousal support would commence as of August 1, 2019. However, Nicola submits that the offer was non-severable on the issue of spousal support in its totality. On both quantum and duration of spousal support, the outcome of the trial was more favorable to Nicola than that which was proposed in Jennifer’s offers.

11Jennifer submits that Nicola behaved unreasonably with respect to the timing and adequacy of financial disclosure, which resulted in higher legal fees for her, as well as in his failure to pay adequate child support and any spousal support prior to trial, especially given his acceptance that she had some entitlement to the latter on a non-compensatory basis. Nicola submits that he was inundated with disclosure requests, many of them unnecessary or repetitive. He disagrees that he acted unreasonably. Jennifer also submits that Nicola acted unreasonably by failing to pay any spousal support after separation, notwithstanding that he accepted that she has a non-compensatory basis for same. With this, I agree. If there was no argument with respect to entitlement by Jennifer to spousal support on a non-compensatory basis, Nicola could have paid an amount to her on a without prejudice basis pending the outcome of this litigation. This could have assisted Jennifer at a time when she was making do with very little. It is unfortunate that Nicola chose not to do so, resulting in him amassing more arrears than he might have otherwise done.

12Nicola submits that he was put to extra expense to defend untenable aspects of Jennifer’s claim for compensatory support, all of which failed but one. His position is the same with respect to her claim for the commencement of spousal support in May of 2019. Nicola submits, additionally, that Jennifer was not successful in what she sought for quantum and duration of support.

13The fact of the matter is that Jennifer’s claim for compensatory spousal support entitlement was successful, and overall, she did better than Nicola in the outcome of the trial. I find that she is entitled to an order of costs.

14While I find that the rates for Jennifer’s counsel to be reasonable, the hours leading up to Settlement Conferences in March of 2021 and April of 2022 are excessive and/or likely include issues other than those which were the subject of the September 2022 trial. Additionally, preparation for the May 2021 trial would have some overlap with issues other than those at trial in September of 2022. I would, therefore, reduce both Ms. Giamberardino and Ms. Pink’s hours on the file.

Order

[15]

Order

There shall be a final order as follows:

1. The Respondent shall pay to the Applicant $45,000, inclusive of disbursements and HST, for the September 2022 trial of this matter.

Engelking J.

Released: October 4, 2023

Citations:

[1] Mattina v. Mattina, 2018 ONCA 867, paragraph 10 [2] Rule 24(12), Family Law Rules, O.Reg. 114/99, as am. [3] Ibid. [4] A party is entitled to costs on a full recovery basis if the offer was made at least one day before the motion, did not expire or was not withdrawn, is not accepted and the order made is as or more favorable than the offer.