SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-08-63385-00
DATE: 2012-02-03
RE: Elizabeth Cornelia Liduina Van Doodewaard v. Anne Antoon Johannes Van Doodewaard
BEFORE: Justice Thomas M. Dunn
COUNSEL: Todd C. Hein, for the Applicant
Respondent Self Represented
COST ENDORSEMENT
[ 1 ] This matter arises out of my judgment released 4 February 2011after a trial of over seven days. The defendant is self represented throughout.
[ 2 ] I have read and considered the costs submissions of each party and would comment as follows.
[ 3 ] This case was clearly made much more complex and engaged an unusual amount of the court’s time, not because the issues were highly complex. They were not. They were, however, made much more difficult by the failure of the respondent to attend properly and in a timely matter to his obligations to provide disclosure. In the end, only partial disclosure was made available shortly before or at trial.
[ 4 ] The respondent sought to excuse his failure by casting the blame on the applicant by making things more difficult for him. Even assuming this, which I cannot and will not do, he has still failed to provide the minimum disclosure expected of a self-represented litigant.
[ 5 ] At trial, his failure becoming apparent in his own evidence, he had ample opportunity to obtain records, etc, but made little effort to do so. His behaviour at trial is replete with excuses, bifurcation, contradiction, evasion and outright refusal to provide evidence relevant to the issues.
[ 6 ] His past track record discloses numerous court appearances wherein he was ordered to pay costs and failed to do so. Nine such orders were never paid except by transfer of funds out of proceeds of sale of the matrimonial home. There remains out of total costs of $17, 931.98, about $5,931.98 unpaid to the date of submissions.
[ 7 ] The applicant seeks costs on a full indemnity basis of $97,882.89, inclusive of disbursements and HST. Put in the context of an eight-day trial, this would at first glance appear to be extraordinary. The applicant’s solicitor has given a credit to the respondent of $12,000.00 costs applied as mentioned above.
[ 8 ] The respondent in his submissions first seeks to have this court overturn the prior costs awards for various reasons including unfairness, arguing that these costs were improperly awarded. While it should be improper for me to entertain this request, in any case, my review of the materials and endorsements leads me to the conclusion that each and every one of these awards was made on sound principles and proper in the circumstances.
[ 9 ] The respondent also seeks to have my factual conclusions and judgment revisited. Again, this I will not do. His reasons for such a request are without any foundation in the facts as I found them, in any case. Further, in the circumstances, the respondent seeks costs payable to himself in the amount of $42,600.00 plus disbursements justifying this calculation as compensation for foregoing business time, or lost business opportunities at $150.00 per hour.
[ 10 ] While the obligation that the respondent can command such an hourly rate gives me some optimism, his barefaced claim is not supported by concrete evidence that this is a proper expense. In any case, he is by far the losing party in this litigation and nothing in this case in the law would entitle him to costs.
[ 11 ] The respondent’s conduct prior to trial, his failure to offer timely disclosure, the trial time wasted dancing around his evidence and the unqualified success of the applicant entitles the applicant to at least substantial indemnity costs. Is there bad faith here that would bring the level of compensation to full recovery? It is a very near thing. The respondent has not complied with court orders and his failures are many. This does not quite reach the egregious standard, however.
[ 12 ] The applicant will be entitled to her costs against the respondent as follows, on a substantial indemnity basis.
Pre-trial fees , exclusive of costs already awarded
$38,000.00
Disbursements (as claimed)
5,557.13
GST (as claimed)
344.24
Total Pre-trial fees and disbursements
43,901.37
43,901.37
Fees at trial , including preparation 7 days
26,000.00
GST on trial fees (5%)
1,300.00
Disbursements at trial (as claimed)
2,044.47
GST on disbursements
81.70
Total fees and disbursements at trial
29,426.17
29,426.17
Post-trial fees , including costs submissions
1,000.00
HST on post trial fees
150.00
Disbursements post-trial
53.00
HST
6.89
Total post trial fees and disbursements
$ 1,209.89
$ 1,209.89
Total Fees and Disbursements
$74,537.43
[ 13 ] In the submissions made by counsel it is requested that these fees and disbursements be characterized as having been incurred in relation to child and spousal support claims. While I made no award for spousal support, given the facts or lack of them at trial, much of the pre-trial time and of trial time was taken up with attempting to determine the respondent’s income and assets. An award was made for child support.
[ 14 ] I find that there is a good reason on these facts to conclude that the costs determined above should be characterized for the purpose of determining and collecting child support.
[ 15 ] Finally, the respondent requests as part of costs submissions that the remaining proceeds of the sale of the matrimonial home, if any, be held pending future child and spousal costs. I agree that there is a firm foundation for such an order. It does not appear to be one that can appropriately be made as part of a costs award and I decline to do so.
Dunn J.
DATE: February 3, 2012
COURT FILE NO.: FS-08-63385-00
DATE: 2012-02-03
SUPERIOR COURT OF JUSTICE - ONTARIO RE: Elizabeth Cornelia Liduina Van Doodewaard v. Anne Antoon Johannes Van Doodewaard BEFORE: Justice Thomas M. Dunn COUNSEL: Todd C. Hein, for the Applicant Respondent Self-Represented COST ENDORSEMENT
DATE: February 3, 2012