SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-10-69787
DATE: 20120914
RE: SAMAR TRUONG – and – MICHAEL TRUONG
BEFORE: Justice Thomas A. Bielby
COUNSEL:
F. Wood, for the Applicant
Respondent Self Represented
HEARD: August 24, 2012
COST ENDORSEMENT
Justice Thomas A. Bielby
[ 1 ] This family law matter proceeded as a bifurcated trial. The issues of custody and access proceeded before me in June and October 2011 and my judgment on these issues was released December 14, 2011. The child support issues and the property issues proceeded in the spring of 2012 and my endorsement was released on June 22, 2012.
There are two remaining issues to be decided.
RESPONDENT’S JOINT ACCOUNTS AT THE DATE OF MARRIAGE
[ 2 ] The first one relates to the value I attributed to two joint investment accounts owned by the respondent at the date of marriage.
[ 3 ] The respondent held the accounts in issue jointly with family members. At trial, on the issue of equalization, he argued that his interest in a number of joint investment accounts he owned together with other family members was approximately 26%, based upon the contributions he had made to those accounts. The applicant argued the accounts were solely owned by the respondent and submitted that I should attribute 100% of the value of the accounts to the respondent.
[ 4 ] In my endorsement, I ruled that I did not accept the respondent’s evidence on this point and inferred that the respondent owned 50% of the value of the accounts in issue for the purposes of equalization, as of the date of separation.
[ 5 ] The respondent had two joint investment accounts at the date of marriage. The parties had agreed to the gross values of these accounts. However, when I completed my equalization of net family property values, having attributed 50% of the joint investment account values to the respondent as of the date of separation, I attributed 100% of the value of the two joint accounts to the respondent, as of the date of marriage.
[ 6 ] The two date of marriage accounts had balances of $2,196.91 and $13,535.91.
[ 7 ] Counsel for the applicant, in a letter dated July 26, 2012, brought this issue to my attention and suggested that it be characterized as an oversight and asked for a rectification. She submitted that, if only 50% of the joint accounts were attributed to the respondent at the date of separation, only 50% of the joint accounts that existed at the date of marriage should be attributed to respondent.
[ 8 ] The lowering of the date of marriage values would increase the equalization payment due to the applicant.
[ 9 ] The respondent submits that values ought to be left alone.
[ 10 ] Rule 25(19) of the Family Law Rules allows the court to change an order that contains a mistake.
[ 11 ] The questions to be asked and answered, therefore, are: should the same inference and findings be attributed to the date of marriage values and was my failure to do so a mistake.
[ 12 ] It is my recollection that the values attributed to these accounts by the respondent were, at the outset, less than the numbers relied upon by the applicant. When we were reviewing the values and assets which were in issue, it was pointed out to the respondent that the use of the greater values attributable to the joint accounts by the applicant, as of the date of marriage, would reduce the equalization value. The respondent was, therefore agreeable to this.
[ 13 ] There was no further discussion with respect to these “date of marriage” values or any evidence lead in relation to these values or share of ownership related to the two joint accounts that existed at the date of marriage.
[ 14 ] There was significant discussion and evidence related to the proportionate ownership of five joint investment accounts that existed at the date of separation. These accounts were identified by name and account number.
[ 15 ] The two accounts at the date of marriage were not specified by name or account number but simply referred to as “joint accounts”.
[ 16 ] Counsel for the applicant submitted to me that it is logical to attribute to the respondent 50% ownership of these date of marriage accounts since that was the proportionate ownership found by the court with respect to the valuation date values.
[ 17 ] I am not prepared to make the adjustment and am not satisfied that a mistake was made as contemplated by Rule 25(19). The entry of the date of marriage values was on consent. There was no evidence lead to suggest these two date of marriage accounts were two of the joint accounts existing at the date of separation. The ownership of the two date of marriage accounts could have changed over the seven years leading up to the date of separation.
[ 18 ] I do not believe that the numbers in issue were as a result of an obvious error of the type contemplated by Rule 25(19).
COSTS
[ 19 ] The applicant seeks costs in this matter. Submissions were made with respect to offers of settlement made and with respect to the respondent’s conduct during the trial and certain positions taken by him.
[ 20 ] The respondent was represented by counsel for the first portion of the trial and represented himself with respect to the property issues.
[ 21 ] I take no issue with the conduct of the respondent during both portions of the trial. I do not consider any of his behaviour for the purposes of costs to be unreasonable. For the second portion of the trial, he represented himself and deserved some latitude with respect to how he led his evidence.
[ 22 ] The first portion of the trial related to the custody of the parties’ natural child Shan, as well as his primary residence. In any family trial, these issues are complex and important.
[ 23 ] In my first endorsement, I granted the parties joint custody but ordered Shan’s primary residence to be with the applicant. Further, I allowed her to move, with the child, to the Waterloo area. The applicant is to consult with the respondent in regards to major decisions in Shan’s life but she was also given the right to make final decisions.
[ 24 ] On the issues relating to the child, the applicant was, for the most part, successful.
[ 25 ] The second trial dealt with property issues and child support. On these issues there was divided success. While the applicant was awarded an equalization payment, it was for less than she sought. Further, while I ordered guideline support for Shan, I did not do so for an older child, Afnan, who is about to enter university.
[ 26 ] The respondent recognized that he had an obligation to support Afnan, a natural child of the applicant from a previous marriage. The respondent argued that the child’s natural father also had an obligation, a point disputed by the applicant. In this regard, I agreed with the respondent and, in determining what support he was to pay for Afnan, I took into account the obligation of the natural father.
[ 27 ] I will award costs to the applicant for the first portion of the trial but will not award costs to either party with respect to the second part of the bifurcated trial since success was divided.
[ 28 ] I have reviewed the offers of settlement of both sides. While on some of the issues the party who filed the offer met or exceeded the offer, the offers in issue dealt with other issues, of which the same could not be said. For example, in an offer of June 21, 2011, the applicant sought only primary residence with respect to Shan; however, she sought an equalization payment of $20,000.00. The respondent served an offer of settlement dated June 22, 2011 and offered to settle for joint custody with Shan’s primary residence to be with the applicant. The offer then set out that the respondent would get access every weekend for the full weekend. The offer also stipulated that no equalization payment would be made.
[ 29 ] It cannot be said that either party met or exceeded the terms of any offer served and the terms of the offers were not severable.
[ 30 ] The applicant provided the court with a bill of costs setting out the actual hours spent on this matter and the full hourly rate. Costs will be awarded on a partial indemnity scale.
[ 31 ] Taking into account the submissions of both parties as to how I should attribute costs as between the two portions of the bifurcated trial, I will allow the following:
Full Indemnity
Partial Indemnity
Preparation and review of pleadings
$ 585.00
$ 400.00
To production and review of documents
1,945.00
1,500.00
For preparation and attendance on Rule 20 questioning,
1,193.00
850.00
To all preparation for first portion of trial Counsel free for attendance on pre-trial
5,425.00 200.00
3,800.00 150.00
Counsel fee for first portion of trial
15,000.00
11,500.00
To taking out of order
100.00
75.00
Total fees on partial indemnity scale
$ 18,275.00
HST on fees
2,375.75
Disbursements inclusive of HST
4,006.56
Total allowed
$ 24,657.31
[ 32 ] It is ordered that the respondent pay to the applicant for costs the all inclusive sum of $24,657.31.
[ 33 ] The respondent’s remaining balance of proceeds from the sale of the matrimonial home, currently held in trust, shall be paid to the applicant as a partial offset of this endorsement as to costs.
Justice Thomas A. Bielby
Released: September 14, 2012
COURT FILE NO.: FS-10-69787
DATE: 2009-09-14
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Samar Truong Applicant - and – Michael Truong Respondent COST ENDORSEMENT Thomas A. Bielby, J
Released: September 14, 2012