Court File and Parties
COURT FILE NO.: FC328/21 DATE: February 26, 2024
SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: Ryan Joey Picanco, Applicant AND: Sabrina Fontaina Sousa, Respondent
BEFORE: MITROW J.
COUNSEL: Kenneth B. Fraser for the Applicant Isha Wadhwa for the Respondent
HEARD: Written submission filed
COSTS ENDORSEMENT
[1] I have reviewed the parties’ costs submissions pursuant to my order dated December 19, 2023.[^1]
[2] The sole issue argued was the applicant’s motion for the sale of the matrimonial home. This order was resisted by the respondent. The applicant was successful in obtaining an order for the sale of the matrimonial home and is presumptively entitled to costs.
[3] The applicant’s bill of costs in relation to the motion, which did not include attempts at mediation, totalled $10,258.70 inclusive of disbursements and HST. The applicant submits that a reasonable amount for costs is $8,000 on an all-inclusive basis, and he seeks that amount.
[4] The respondent submits that no costs should be payable.
[5] The respondent argues that she has been unemployed since January 2018 and that her desire to purchase the matrimonial home was hampered by the respondent’s failure to pay the appropriate amount of child support and spousal support for the period subsequent to separation in January 2017 until the order of Korpan J. dated October 19, 2022 when the applicant was ordered to pay interim spousal support and interim child support. I do not accept the respondent’s submission that the applicant has responsibility for the respondent’s failure to put together a proposal to purchase the applicant’s interest in the matrimonial home. The applicant had ample opportunity to do so, including after the interim support order was made.
[6] I consider the factors in r. 24(12). While the applicant acted reasonably in pursuing the sale of the matrimonial home, including waiting to do so for many years post separation and engaging in mediation, I find that the respondent’s conduct in continuing to resist the sale became unreasonable as time passed. The hourly rates for the applicant’s counsel are reasonable as reflected in the applicant’s bill of costs. The respondent has not provided any information about her fees. This amounts to noncompliance with r. 24(12.2), which requires a party who opposes a claim for costs to provide documentation regarding their own fees and expenses. No offers to settle were served by either party.
[7] While generally the time spent by the applicant’s counsel is reasonable, it is noted that the order of Korpan J. dated October 19, 2022, dealt not only with the applicant’s motion but also the respondent’s motion for interim child support and interim spousal support. In the applicant’s bill of costs, for the time docketed prior to the order of Korpan J., it is not clear to what extent the time spent relates to the respondent’s motion. For example, for October 19, 2022, the description of the docketed time includes “work on support calculations.” The issue of costs relating to the respondent’s motion is not before me.
[8] Accordingly, I consider that costs claimed on the applicant’s motion should not include time spent in relation to the respondent’s motion for interim support. Although Korpan J.’s order is silent as to the costs of both motions, I can consider costs incurred on the applicant’s motion prior to the date of Korpan J.’s order: see. r. 24(11).
[9] The respondent raises an inability to pay costs referring to her modest means and the fact that she has been unemployed since 2018. While I agree that the financial means of a party can be considered in awarding costs, I also take into account that the respondent will be receiving a substantial amount of money from her share of the matrimonial home sale proceeds. Although the matrimonial home has not been sold, there is substantial equity in the matrimonial home as discussed in the reasons.
[10] I find that the amount of $6,500 all-inclusive meets the criteria of reasonableness and proportionality. This amount also is in conformity with the discussion of reasonableness in relation to costs in Davies v. Clarington (Municipality), 2009 ONCA 722 (Ont. C.A.), at para. 52, relied on by the respondent.
[11] While the applicant submits that costs should be paid from the respondent’s share of the sale proceeds from the matrimonial home when it is sold, I do have concerns about the applicant’s proposal as to the timing of the costs payment.
[12] The parties agree that the applicant will owe child support and spousal support arrears, although they disagree as to the quantum. However, as set out in the reasons, the applicant estimates child support and spousal support arrears to be in the range of $55,000. The respondent’s estimate is higher. The order required that $100,000 was to remain in trust from the applicant’s share of the matrimonial home sale proceeds as security for arrears of child support and spousal support and post-separation adjustments.
[13] In the circumstances, where there are substantial arrears of support owed by the applicant on his own admission, it would be unjust to require the respondent to pay costs either now or on the sale of the matrimonial home, especially in circumstances where the applicant owes substantially more in support arrears than the costs owed by the respondent. The reality is that when support arrears and adjustments are quantified, that the parties will be at liberty to set-off costs owing by the respondent against, for example, spousal support arrears or adjustments owing by the applicant. Accordingly, the payment of costs should be deferred to the conclusion of the case when all issues have been dealt with.
[14] On a different but related matter, my order as signed and issued, incorrectly shows November 15, 2023 as the date of the order, rather than the correct date of December 19, 2023. Counsel shall prepare an amended order with the correct date and submit it to the clerk to be signed and issued.
ORDER
[15] I make the following order:
The respondent shall pay to the applicant his costs of the applicant’s motion fixed in the amount of $6,500 inclusive of HST.
The costs are not payable by the respondent until all issues in this case have been dealt with on a final basis pursuant to a court order.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: February 26, 2023
[^1]: Reasons at Picanco v. Sousa, 2023 ONSC 7131 (Ont. S.C.J.).