CITATION: Aksman v. Shenderey, 2011 ONCA 816
DATE: 20111222
DOCKET: C52405
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Laskin and Cronk JJ.A.
BETWEEN
Inna Aksman
Applicant (Respondent)
and
Felix Shenderey
Respondent (Appellant)
Gary Joseph and K. Younie, for the appellant
Carol A. Bargman, for the respondent
Heard: December 14, 2011
On appeal from the order of Justice Craig Perkins of the Superior Court of Justice, dated June 18, 2010, with reasons reported at 2010 ONSC 3559, and the costs order dated November 5, 2010, with reasons reported at 2010 ONSC 6127.
ENDORSEMENT
[1] Mr. Shenderey makes three submissions on this appeal. First, he submits that the trial judge erred in his monetary award for unjust enrichment. Second, he submits that the trial judge erred in awarding lump sum spousal support. And third, he submits that the trial judge’s costs award is excessive.
[2] We decline to give effect to any of these submissions.
1. The Award for Unjust Enrichment
[3] The trial judge awarded Ms. Aksman $298,000, plus pre-judgment interest on her claim for unjust enrichment. This award has two components: direct financial contributions and compensation for the provision of domestic services.
[4] The trial judge found that Ms. Aksman’s financial contributions between 1999 and 2005 amounted to $200,000. He also found that over that period of seven years, she provided domestic services worth $98,000. These findings were grounded in the evidence, especially in the detailed evidence and record keeping of Ms. Aksman, which the trial judge accepted. Mr. Shenderey does not challenge these findings but argues that the trial judge failed to consider three set-offs:
• Mr. Shenderey’s contributions in the first four years of their relationship, which the trial judge held either “matched or exceeded” those of Ms. Aksman;
• Mr. Shenderey’s contributions to the payment of the credit card debts; and
• Ms. Aksman benefitted from living in Mr. Shenderey’s house rent-free for one year after the parties separated.
[5] As we read the trial judge’s reasons, he did take these set-offs into account.
[6] The trial judge did not specifically analyze whether Mr. Shenderey’s contributions exceeded those of Ms. Aksman during the period 1994 to 1998, the first four years of their relationship. However, the trial judge gave very detailed reasons, and reading those reasons as a whole, we think it implicit that he was satisfied no set-off was required.
[7] On the credit card contributions, the trial judge found at para. 67 of his reasons that many of the credit card purchases went into Mr. Shenderey’s business and the home, both of which he owned.
[8] Finally, the trial judge took into account Ms. Aksman’s year of rent-free accommodation by not awarding her the spousal support that she would otherwise have been entitled to for that period.
[9] Accordingly, the appeal from the award for unjust enrichment must fail.
2. Lump Sum Spousal Support
[10] The trial judge was entitled to order lump sum support. These orders are discretionary and case specific, and can be justified by a wide variety of circumstances: see Davis v. Crawford, 2011 ONCA 559, 106 O.R. (3d) 221, at paras. 66 to 67.
[11] Here, the trial judge’s reasons at para. 101 of his decision provide an adequate foundation for the lump sum order. As Davis v. Crawford requires, the trial judge weighed the advantages of a lump sum payment against its disadvantages. For example, as Ms. Bargman pointed out, Ms. Aksman testified that Mr. Shenderey was chronically late in his support payments.
[12] We therefore have no basis to interfere with the exercise of the trial judge’s discretion in making the lump sum award. This ground of appeal fails.
[13] We add, however, that effect should be given to the second sentence at para. 103 of the trial judge’s reasons.[^1]
3. Costs
[14] Costs awards, of course, are discretionary. Appellate interference is rarely warranted.
[15] Here, the trial judge gave thorough reasons for his costs award. Ms. Aksman sought costs of $228,000. The trial judge found that her request was excessive. He awarded her costs of $131,000 (inclusive of disbursements). We are not persuaded that this award is unreasonable or plainly wrong. Several considerations support our opinion.
[16] First, the trial judge properly took into account the length of the trial. Second, the trial judge noted that Ms. Aksman’s recovery exceeded her offer to settle, made seven weeks before trial. Third, the trial judge carefully perused counsel’s bill of costs, and for example, substantially reduced the amount sought for the expert accountant and for pre-trial proceedings.
[17] For these reasons, leave to appeal costs is denied.
[18] The appeal is accordingly dismissed, with costs fixed at $10,000, including disbursements and applicable taxes.
“D. O’Connor A.C.J.O.”
“John Laskin J.A.”
“E.A. Cronk J.A.”
[^1]: Where he stated: “Credit is to be given for all sums paid to the applicant, but net of any tax she paid on them.”