SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: Pembroke court FL-09-D-107
MOTION HEARD: April 30, 2012
DATE: AUGUST 9, 2012

RE: DIANNE LOIS VERCH , Applicant

• and –

KENNETH GEORGE VERCH , Respondent

BEFORE: JUSTICE ABRAMS

COUNSEL:
PETER SAMMON , for the Applicant
LEONARD LEVENCROWN, for the Respondent

COSTS ENDORSEMENT

Background

[ 1 ] The Court heard a motion on April 30, 2012, brought by the Applicant, Dianne Lois Verch (“Ms. Verch”).

[ 2 ] Ms. Verch was entirely successful on the motion as set out in my Endorsement dated May 4, 2012.

[ 3 ] At the conclusion of the Endorsement, the parties were invited to address the issue of costs by way of written submissions. Counsel for Ms. Verch served and filed Submissions on Costs. No materials were received from counsel for the Respondent, Kenneth George Verch (“Mr. Verch). Accordingly, the Submissions on Costs provided by Ms. Verch stand alone, uncontested.

[ 4 ] Ms. Verch was forced to bring the motion to preserve the family’s most significant asset, the matrimonial home, worth in excess of $350,000.00 and for the most part unencumbered.

[ 5 ] In all of the circumstances, I found that Mr. Verch chose not to pay the property taxes in contravention of Ray, J.’s Order, dated February 24, 2012, thereby placing the matrimonial home in jeopardy of being sold by the municipality on a tax sale.

[ 6 ] Moreover, I found that Mr. Verch’s failure to pay the property taxes was an attempt, in part, to avoid the outcome of an earlier contempt hearing before Hackland, R.S.J., on January 7, 2012.

[ 7 ] Finally, I found that in order to protect the integrity of the administration of justice, the matrimonial home should be transferred to Ms. Verch, given Mr. Verch’s willful disobedience of Ray, J.’s Order dated February 24, 2012.

Position of the Parties

[ 8 ] For all of the reasons set out above, Ms. Verch contends that she is entitled to substantial indemnity, which by her counsel’s Bill of Costs equals $6,740.55 inclusive of fees, disbursements and H.S.T.

[ 9 ] Again, Mr. Verch has not served and filed materials of his own. That aside, my review of the Bill of Costs leads me to conclude that the amount claimed for substantial indemnity is reasonable having regard to the following factors:

(a) Counsel’s 27 years of experience;

(b) Counsel’s hourly rate of $200.00; and

(c) The factors enumerated in Rule 24(11) of the Family Law Rules .

[ 10 ] Ms. Verch further contends that in determining the amount of costs and the manner in which they should be paid, the Court should take into consideration Rule 24(8) of the Family Law Rules , which provides:

“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.”

Analysis

[ 11 ] There is no question that Mr. Verch’s conduct in this litigation to date amounts to bad faith. Firstly, he willfully disobeyed Justice Ray’s Order of February 24, 2012. Secondly, he was given an opportunity to explain why he failed to pay the property taxes in accordance with that Order. He failed to file a fresh affidavit to explain why he had not paid the property taxes. As a result the Court was left to draw the adverse inference that any explanation provided by Ms. Verch would not have been helpful to his case. Thirdly, as a result of his misconduct, he placed the matrimonial home in jeopardy of being sold by the municipality. Fourthly, Mr. Verch’s stratagem was transparent: By forcing a tax sale he could potentially repurchase the matrimonial home through a third party and, therefore, circumvent Lalonde, J.’s Order of May 22, 1009, granting exclusive possession of the home to Ms. Verch and the children. Finally, Mr. Verch further placed the matrimonial home in jeopardy by refusing, as the only party with an insurable interest, to keep the policy of insurance for the dwelling in good standing.

Held

[ 12 ] For all of the reasons articulated above, Ms. Verch is entitled to her costs as requested, fixed in the amount of $6,740.45, inclusive of fees, disbursements and HST, payable by Mr. Verch forthwith and in any event by no later than August 31, 2012.

ABRAMS, J.

DATE: August 9, 2012