SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-18-000543

DATE: 20230215

RE: MARIA FIORELLINO-DI POCE, Applicant

AND

JOHN DI POCE, Respondent

BEFORE: Davies J.

COUNSEL: Harold Niman and Meysa Maleki, for the Applicant

Jonathan Robinson and Shannon Beddoe, for the Respondent

HEARD at Toronto: in writing

REASONS FOR DECISION ON COSTS

[1] Ms. Fiorellino-Di Poce brought a motion for production of records from the Bank of Nova Scotia. The Bank did not appear on the motion and told the parties it took no position on the motion. Mr. Di Poce did not file any responding materials but appeared on the motion to oppose the form of the order sought.

[2] The parties ultimately settled the motion and a consent order was signed. One of the terms of the order the parties agreed to was as follows:

The Respondent shall indemnify the Applicant, Marie Fiorellino-Di Poce, for the costs of this motion, which shall be addressed by way of written submissions of no more than five pages double spaced to be submitted no later than December 13, 2022.

[3] Ms. Fiorellino-Di Poce now seeks $22,299.99 from Mr. Di Poce to indemnify her for her full costs of the motion.

[4] Mr. Di Poce argues that he should not be ordered to pay any of Ms. Fiorellino-Di Poce’s costs. First, he argues there was no successful party because the motion settled so Ms. Fiorellino-Di Poce is not presumptively entitled to costs. Second, he argues that Ms. Fiorellino-Di Poce acted unreasonably on the motion. Finally, he argues that if Ms. Fiorellino-Di Poce is entitled to costs, her costs should be paid by the bank, not by him.

[5] For the reasons that follow, Mr. Di Poce is ordered to pay Ms. Fiorellino-Di Poce $8,500 to partially indemnify her for the costs of the third-party records motion.

[6] The successful party on a motion is presumptively entitled to costs: Family Law Rules, R. 24(1). It can be difficult to measure success when a motion settles. Some judges have ruled that, absent compelling circumstances, the Court should decline to award costs when a matter settles: Blank v. Micallef, 2009 60668 (ON SC), [2009] O.J. No. 4636 (SCJ). More recently, however, this Court has ruled that the fact a matter settles should not preclude a full costs analysis: Scipione v. Scipione, 2015 ONSC 5982 at para. 64, Beardsley v. Horvath, 2022 ONSC 3430 at para. 10. In Scipione, the Court noted that a party’s decision to settle does not “automatically wipe out any history of bad litigation choice which would otherwise justify costs.” The Court also noted that a rule (or practice) that costs are not ordered when a matter settles could discourage even reasonable parties from settling for fear of losing the ability to recover some or all of their costs.

[7] I am satisfied that Ms. Fiorellino-Di Poce was successful on the motion. She got an order requiring the Bank of Nova Scotia to produce its complete file, which she has been seeking for many, many months. She also got an order requiring the Bank to produce an affidavit confirming all relevant documents have been produced and confirming what efforts have been made to locate relevant documents.

[8] Even if Ms. Fiorellino-Di Poce is not presumptively entitled to costs as the successful party, I find that it is still appropriate to award her costs on this motion because Mr. Di Poce has behaved unreasonably: Family Law Rules, R. 24(4).

[9] First, Ms. Fiorellino-Di Poce’s motion was only necessary because Mr. Di Poce has not complied with several orders requiring him to produce the Bank records.

[10] On May 27, 2021, Justice Kiteley ordered Mr. Di Poce to produce all documents related to a loan from the Bank of Nova Scotia including documents with respect to his net worth. Justice Kiteley noted that Mr. Di Poce “must be pressed to provide reliable disclosure.” Mr. Di Poce produced some records from the Bank of Nova Scotia but it was not the complete file. On November 30, 2021, Justice Hood ordered Mr. Di Poce to give Ms. Fiorellino-Di Poce a signed direction to the Bank of Nova Scotia to release their entire file in relation to the loan to Ms. Fiorellino-Di Poce’s counsel. Mr. Di Poce complied with Justice Hood’s order but the Bank of Nova Scotia did not produce its entire file.

[11] Ms. Fiorellino-Di Poce brought a motion and asked the Court to find that Mr. Di Poce breached Justice Kiteley and Justice Hood’s orders. On April 4, 2022, Justice Shore found that Mr. Di Poce “had an obligation to produce the file.” She also found that Mr. Di Poce had not done what was needed to ensure the timely release of the documents by the Bank. Justice Shore found Mr. Di Poce was in breach of the two previous orders and ordered him to pay $2,500 for each day his disclosure remained outstanding.

[12] On May 31, 2022, Justice Shore found that Mr. Di Poce was still in breach of his disclosure obligation. She wrote, “Until the Respondent has done everything that he can to ensure the documents are given to the Applicant, he has not met his obligation under the orders.”

[13] Mr. Di Poce, through his counsel, has repeatedly asserted that the entire bank file has been disclosed. However, new documents continue to be uncovered. For example, in October 2022, Mr. Di Poce’s lawyer told Ms. Fiorellino-Di Poce that she had received additional material from the Bank of Nova Scotia that had been recovered from their archives. Ms. Fiorellino-Di Poce could not get a clear answer about why those records had not been previously disclosed and whether any other documents exist.

[14] To finally resolve the conflict over the Bank records, Justice Diamond, granted Ms. Fiorellino-Di Poce leave to bring a motion for third-party disclosure from the Bank of Nova Scotia on November 29, 2022. That is the motion that the parties have settled.

[15] Had Mr. Di Poce acted reasonably in response to any of the earlier disclosure orders, Ms. Fiorellino-Di Poce would not have been put to the expense of bringing a motion for third-party production.

[16] Second, Mr. Di Poce acted unreasonably on the motion itself. In her original notice of motion, Ms. Fiorellino-Di Poce sought an order that Mr. Di Poce and/or the Bank of Nova Scotia produce a complete copy of the bank’s records. She also sought an order requiring Mr. Di Poce to obtain an affidavit from the Bank of Nova Scotia.

[17] Mr. Di Poce opposed the relief sought by Ms. Fiorellino-Di Poce. He took the position that the production order should be directed to the Bank of Nova Scotia, not to him. However, Mr. Di Poce did not file any materials in response to the motion. Nor did he file a motion confirmation form (Form 14C). He did not even communicate his position on the relief sought to Ms. Fiorellino-Di Poce’s counsel before the hearing. Had Mr. Di Poce responded to the motion in accordance with the rules or raised his concerns about the form of the order with Ms. Fiorellino-Di Poce’s counsel (directly or in a confirmation form), the motion likely could have been settled without any need for an attendance.

[18] I recognize the order I signed was directed at the Bank only, which is consistent with Mr. Di Poce’s position. However, the fact the final order reflects Mr. Di Poce’s position does not erase his unreasonable conduct in failing to comply with previous court orders and failing to comply with the rules and with the Consolidated Practice Direction Concerning Family Cases in the Toronto Region which states “the parties or their counsel should consult with each other prior to filing their Form 14C confirmation of Motion.”

[19] I find that this is an appropriate case to make an order even though the motion was settled and even if Ms. Fiorellino-Di Poce is not considered to be the successful party. A costs order is appropriate to indemnify Ms. Fiorellino-Di Poce for her costs of bringing this motion and to sanction Mr. Di Poce’s unreasonable conduct: Mattina v. Mattina, 2018 ONCA 867 at para. 10.

[20] The quantum of costs ordered must be fair, reasonable and proportionate. Ms. Fiorellino-Di Poce is seeking $22,299.99 in costs. I find that Ms. Fiorellino-Di Poce’s costs are excessive and disproportionate. The legal issue on this motion was straightforward. While this case has a long and tortured history, the facts on the third-party production motion were very straightforward. It would not be reasonable or proportionate to order Mr. Di Poce to pay $22,299.99 in costs on a simple, uncontested third-party production motion, even on a full indemnity basis.

[21] Mr. Di Poce’s total fees on the motion were $4,305.30. However, Mr. Di Poce’s counsel did not prepare any materials for the motion. His fees are, therefore, artificially low and do not reflect what an unsuccessful party would reasonably expect to pay.

[22] I find that it would be fair, reasonable and proportionate to require Mr. Di Poce to pay Ms. Fiorellino-Di Poce $8,500 to partially indemnify her costs of this motion.

__________________________Davies J.

Date: February 15, 2023