Court of Appeal for Ontario
Before: Juriansz, Hourigan and Brown JJ.A.
Between
Janis Arline Dodman (formerly Preston)
Applicant (Respondent)
and
Mitchell Lewis Preston
Respondent (Appellant)
Counsel: Timothy R. Pedwell, for the appellant Kiran Sah, for the respondent
Heard: January 7, 2016
On appeal from the judgment of Justice Robert B. Reid of the Superior Court of Justice, dated December 4, 2014.
ENDORSEMENT
1This is an appeal from a judgment following a six-day family law trial. The issues on appeal are narrow. First, the appellant submits that the trial judge erred in his order regarding how an equalization payment owing to him by the respondent should be funded. Second, he submits that this error impacted the trial judge’s decision on costs and the trial judge erred in awarding the respondent costs in the circumstances.
2Neither party takes issue with the trial judge’s calculation of the equalization payment owing to the appellant, being $183,911.76. However, the appellant submits the trial judge erred when he ordered as follows, at para. 94:
Therefore, there will be an order that from the sale proceeds presently held in trust which total $277,980.48, the respondent is to receive $183,911.76, with the balance of $94,068.72 being payable to the applicant.
3The “sale proceeds” being referred to are the proceeds from the sale of the matrimonial home. The appellant argues that the result of this order is that his portion of the proceeds is being utilized to partially fund the equalization payment. The appellant’s position is that that respondent is entitled to utilize up to one half of the sale proceeds to pay the equalization payment but any amount owing in excess of that sum is payable by the respondent from her own funds.
4We agree with the appellant. Although the respondent was the sole registered owner of the matrimonial home, the parties proceeded on the basis that they each had an equal entitlement to the proceeds of the sale of the property. Therefore, the funds held in trust are jointly owned property and the respondent has no right to utilize the appellant’s share of the funds to cover any portion of the equalization payment owing to the appellant. The trial judge erred in ruling to the contrary and that part of his order must be set aside.
5With respect to the issue of costs, the appellant submits that, because of the error with respect to the funding of the equalization payment, the trial judge was unable to appreciate the reasonableness of his offer to settle and erred in awarding the respondent costs.
6We would not give effect to this argument. The trial dealt with a number of issues in addition to the equalization payment, including: custody and access, spousal support, child support, division of property, and occupation rent. In his costs endorsement, the trial judge carefully reviewed the results of the trial and the relative success of both parties. We are not persuaded that the trial judge erred in his assessment of costs or that the error with respect to the funding of the equalization payment materially affected his costs decision.
7The appeal is granted to the extent that the trial judge’s direction regarding how the equalization payment is to be funded is set aside. The appeal regarding the costs award is dismissed.
8With respect to the costs of the appeal, the appellant is seeking approximately $39,000 on substantial indemnity scale and, in the alternative, approximately $26,000 on a partial indemnity scale. The appellant as the more successful party is entitled to his costs. There is no basis to award costs on the higher scale and we agree with the submission of the respondent that $26,000 is far in excess of what is reasonable for an appeal of this nature. We are of the view that an appropriate costs award is $10,000. To reflect the mixed success on the appeal, we are reducing this sum by $2,500. We therefore order that the respondent pay the appellant $7,500 for the costs of the appeal, inclusive of fees, disbursements and applicable taxes.
“R.G. Juriansz J.A.”
“C.W. Hourigan J.A.”
“David Brown J.A.”