ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D20823/07
DATE: 2012-06-14
B E T W E E N:
Betty Lorine Dutchyn
Tina Mangiacasale, for the Applicant
Applicant
- and -
Joseph William Dutchyn Jr.
Luigi De Lisio, for the Respondent
Respondent
The Honourable Justice T. Maddalena
COSTS ENDORSEMENT
[ 1 ] I heard the trial of Dutchyn and Dutchyn at Welland on March 19, 2012, March 20, 2012 and March 21, 2012. I provided oral reasons for judgment on the 22 nd of March 2012.
[ 2 ] I then invited counsel to make written costs submissions, with the applicant’s written submissions due April 12, 2012 and the respondent’s written costs submissions due May 3, 2012.
[ 3 ] I have now received and reviewed the written submissions of both counsel.
The Position of the Applicant
[ 4 ] The applicant states that she has been successful at trial and is entitled to her costs.
[ 5 ] The applicant submits that her legal aid cost inclusive of disbursements and the appropriate tax is $7,634.00 (rounded).
[ 6 ] The applicant submits further that her private retainer cost inclusive of disbursements and the applicable tax is an additional $24,277.00 (rounded).
The Position of the Respondent
[ 7 ] The respondent states that no costs should be awarded in these circumstances or, in the alternative, if costs are awarded it should only be on a partial indemnity basis from February 27, 2012 and forward. Additionally, any costs awarded should be set off against costs for the respondent’s disclosure motion of March 7, 2012 and March 14, 2012 (respondent states these costs should be $2,500.00).
[ 8 ] The respondent also states that matters were complicated by the applicant as a result of claims brought by her such as property claims, equalization claims and trust claims which were later withdrawn by her.
Applicable Rules
[ 9 ] In this case, I find that the applicable Family Law Rules are as follows:
Rule 24(1) :
There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
Rule 24(11) :
A person setting the amount of costs shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
Rule 24(8) :
If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
Offer to Settle
[ 10 ] Rule 18(14) reads as follows:
A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
- If the offer relates to a motion, it is made at least one day before the motion date.
- If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
- The offer does not expire and is not withdrawn before the hearing starts.
- The offer is not accepted.
- The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
[ 11 ] Ms. Dutchyn made an offer to settle dated March 16, 2012.
[ 12 ] That offer to settle is in letter format and is not signed by Ms. Dutchyn, although it is signed by her solicitor.
[ 13 ] It was not made seven days prior to trial but I find that, had it been accepted by the respondent, it would have avoided the costs associated with the trial.
[ 14 ] The offer to settle of March 16, 2012 proposed to settle spousal support at $2,000.00 per month commencing April 1, 2012.
[ 15 ] At the end of trial I ordered spousal support payment in the amount of $2,300.00 per month commencing January 1, 2011.
[ 16 ] It would have been more favourable for Mr. Dutchyn had he accepted the offer of March 16, 2012 and also avoided the costs of a trial.
[ 17 ] Further, in my oral reasons at trial I expressed the following concerns:
The respondent entered into a consent order dated July 27, 2011. I found that although he consented to this order, he had no intention of complying with same. By this order the respondent had agreed to pay $10,000.00 to FRO towards spousal support within 90 days. The applicant consented to adjourn the trial of this matter based on this consent order. At the time of trial, the respondent had not complied with this order.
Secondly, I found the respondent attempted to hide behind his common-law spouse’s corporation in an attempt to reduce his income and avoid his spousal support obligation. I found the respondent was really the controlling force behind this corporation, namely B.B. Marketing and Brokerage Services Inc., and that the respondent, his common-law spouse and the corporation were all operating at nonarms length.
I had also found that spousal support arrears had accumulated to approximately $53,400.00 (rounded) at the time of trial. This is despite the fact that from 2006 to 2010 inclusive the respondent earned an average of $106,000.00 annually (see Schedule “A”).
[ 18 ] All of the aforementioned, in the court’s view, amount to some bad faith on the part of the respondent.
[ 19 ] While it is correct that the applicant initially made claims dealing with equalization, property issues and trust claims which were ultimately withdrawn by her, I find that this does not negate that she was substantially successful on the spousal support issue at trial. Had Mr. Dutchyn accepted her offer of March 16, 2012 he would have been in a better position than my order at trial.
[ 20 ] Given Mr. Dutchyn’s real attempts to avoid his spousal support obligation to Ms. Dutchyn, it is the court’s view that it is appropriate to award costs in favour of Ms. Dutchyn.
[ 21 ] Firstly, the legal aid costs recovered by Ms. Dutchyn should be recovered on a partial indemnity basis and I therefore fix those costs at $4,500.00 all inclusive, including applicable tax and disbursements. These are payable within 60 days and are enforceable as support through FRO.
[ 22 ] Secondly, of those costs incurred by Ms. Dutchyn on a private retainer basis, I find that the hourly rate of counsel is reasonable. As well, the services of a law clerk were utilized where appropriate to reduce costs.
[ 23 ] In addition to Rules 24(1) and 24(8), I have also taken into account those factors in Rule 24(11).
[ 24 ] I have also considered that some claims initially included by Ms. Dutchyn were eventually withdrawn and not pursued.
[ 25 ] Therefore, costs on the private retainer are fixed at $16,000.00 all inclusive of applicable tax and disbursements. These costs are payable within 60 days. These costs are also enforceable as support through FRO.
[ 26 ] For the reasons referred to in para. 17 herein, these costs are enforceable also against B.B. Marketing and Brokerage Services Inc.
Summary of Cost Orders Made
[ 27 ] The respondent shall pay to the applicant on account of her costs as follows:
(1) $20,500.00 inclusive of costs and applicable tax payable within 60 days.
(2) These costs of $20,500.00 are enforceable as support through FRO.
(3) These costs of $20,500.00 are enforceable against the respondent personally, as well as against B.B. Marketing and Brokerage Services Inc.
Maddalena, J.
Released: June 14, 2012
SCHEDULE “A”
Respondent’s earnings from income tax returns as accepted by respondent (rounded):
2006 $104,115.00
2007 $110,808.00
2008 $115,141.00
2009 $107,893.00
2010 $ 93,280.00
Average earnings $106,247.00
COURT FILE NO.: D20823/07
DATE: 2012-06-14
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Betty Lorine Dutchyn Applicant - and – Joseph William Dutchyn Jr. Respondent COSTS ENDORSEMENT Maddalena, J.
Released: June 14, 2012