COURT FILE NO.: 06-FD-318786-FIS
DATE: 20121116
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GVQ, Applicant
AND:
MLQ, Respondent
BEFORE: Czutrin J.
COUNSEL: Applicant – In Person
Paul S. Pellman, for the Respondent
HEARD: Written Submissions
ENDORSEMENT
[1] This endorsement deals with the issue of costs arising from a five-day trial heard by me in May with my judgment released August 3, 2012. This costs disposition should be read in conjunction with my judgment.
[2] I settled the order arising from my judgment on October 11, 2012.
[3] The parties had agreed to extend the time lines for exchange of costs submissions.
[4] The Respondent’s submissions are dated September 20, 2012 and the Applicant’s October 5, 2012.
[5] The Respondent (mother) seeks costs of $119,705.54.
[6] The Applicant (father) asks that each party pay their own costs.
[7] Each side reviewed the issues at trial, the results of each issue and the various offers made over the six years since commencement of this case. Rule 18 (regarding the offers to settle) and Rule 24 (costs) of the Family Law Rules Act govern costs. Section 131 of the Courts of Justice Act also speaks to costs.
Parenting Issues
[8] The parties have one child K, born March 25, 2012. The parties executed Minutes of Settlement in March 2004 dealing with parenting issues that provided for a week about schedule.
[9] The major parenting issues for trial were:
a. The mother’s request to change the week about schedule to alternate weekends for the father since he lives in Waterdown during the weeks the child goes to school in Toronto. His Waterdown residence was a change from his residence at the time the parties entered into the parenting Minutes of Settlement and;
b. The father’s request to have final decision-making concerning education.
[10] I decided that unless the father moved or arranged suitable accommodation to a geographic boundary near K’s (the child’s) current school in Toronto, the alternate weeks would end and father’s time during the school year would be generally alternate weekends. I also fixed specific times otherwise to attempt to limit issues.
[11] With respect to decision-making on education, I decided that the issue would be off the table unless the parties agreed otherwise until nine months prior to K entering Grade 7 and if they could not agree on school, they should consider an educational assessment to assist the court in deciding any educational dispute prior to Grade 7.
[12] The Applicant and Respondent both claim success.
[13] I find that the Respondent mother was successful and more reasonable on the parenting issues.
Support
[14] Both spousal and child support issues were tied to the parties’ income and most importantly the Applicant, father’s income.
[15] The father had the obligation to satisfy the court as to his income.
[16] He is a self-employed person and his personal income tax returns (line 150 income) were not appropriate income to determine his income for either child or spousal support.
[17] Commencing at paragraph 141 and concluding at paragraph 230, I discussed and dealt with the Applicant, father’s income and Respondent’s income and ongoing spousal and child support and retroactive support.
[18] I found the Applicant’s income to be $338,000.
[19] The Respondent’s expert provided an opinion of $368,000 and the Applicant’s expert critique suggested $254,000. All these figures were higher, significantly than the Applicant’s line 150 income.
[20] I ordered spousal support of $8,000 per month (to August 2016) and child support of $2,316 per month if the week about parenting scheduled was maintained but increased to $2,654 per month if schedule became alternate weekends to father plus section seven expenses.
[21] With respect to retroactive adjustments, I ordered the new support amounts to commence January 2012, with credit for payments made, but rather than making an order retroactive prior to January 2012, I considered the issue when determining to the duration of ongoing spousal support (see paragraphs 227-228).
[22] I find that the Respondent was more successful on support issues and the fact the $8,000 per month was consistent with her offer of April 12, 2009.
The Marriage Contract
[23] The Respondent sought to set aside the Marriage Contract the parties had entered into.
[24] At trial, the issue of equalization was resolved at paragraph 16 of my judgment and noted that the issue of the Marriage Contract was resolved because of the equalization payment agreement.
[25] I discussed the issue of the Marriage Contract in paragraphs 30 through 36. I concluded at paragraph 35 “…there was no financial disclosure predating or at the time of the signing of the Marriage Contract. There was an attempt to limit the mother from obtaining production or disclosure of the financial statements of the companies … I find that the Marriage Contract is unenforceable and contrary to the Child Support Guidelines and the obligation of the father to establish his income.”
[26] At paragraph 36 I found “… the father failed to … establish that there was the required disclosure … when considering the validity of a marriage contract.”
[27] While the issue became moot, the Respondent’s evidence on the marriage contract was preferred over the Applicant’s evidence.
Costs Generally
[28] The Applicant submitted that the Respondent was only partially successful at trial. He claims that he was “severely disadvantaged by not being able to afford adequate counsel to represent his position not only at trial, but for three years preceding the trial”.
[29] The Applicant attached letters sent by him or on his behalf in efforts to resolve issues.
[30] When the Applicant wrote to Ms. Master on June 27, 2005 (when Ms. Master represented the Respondent), he offered:
K will remain named as beneficiary for both of my life insurance policies totaling $3,000,000 for as long as she is entitled to receive support from me.
[31] On May 9, 2006, when the Respondent was represented by counsel, his counsel wrote to the Respondent’s then counsel offering support based on 2005 income of $154,256, the balance of the offer is also far less than the outcome.
[32] On August 24, 2009, when no longer represented, the Applicant served an
a. Offer based on $250,000 income and offered child support of $1,300 per month even though there was equal time-sharing.
b. Paragraph 5 of the offer provided that the parents “will live near each other so that K will have frequent contact with both parents. Neither parent will have K’s residence from Leaside without the other’s written consent or court order”.
c. He offered $5,000 per month in spousal support until December 1, 2011.
[33] On August 25, 2011, the Applicant wrote directly to the Respondent and said:
… I wanted to send you the highlights… (of an offer before sending to her lawyer) … before he (Mr. Pellman) attempts to poison you against it.
… Despite my complete lack of desire, I am prepared to move forward with a trial and know that I have an excellent case. There will be no ‘winner’.
How do we have any hope of interacting for K’s sake, after I am forced to basically destroy you at trial or vice versa after P tries to destroy me?
[34] He offered:
He offered to pay historical household expenses for 5 more years.
100% of K’s extraordinary expenses.
Every other week (parenting) schedule.
Transferring the home to the Respondent (as of December 31, 2016).
No spousal support after December 31, 2011.
Sole custody to Applicant of K.
And finally just before trial May 3, 2012 the Applicant his offer included:
$2,000 per month child support (based on $250,000 income) … in the form of paying historical household expenses (outlined to include insurance, hydro, gas, water, etc., totaling $1,997.67 per month).
At end of 2016, $2,000 per month “cash payment”.
He will have sole decision making re: K’s education.
Sharing special expenses although he would pay all of K’s private school [if he decides to enroll her].
On December 31, 2016 he will gift the home to “K in trust”.
[35] His submissions regarding costs questioned the costs claimed by the Respondent including disbursements concerning the expert fees for the income analysis of his income.
[36] He submitted that the Respondent’s legal fees have been paid with historic dollars (the amounts he provided and other sources of funds that the Respondent had). He submitted that the Respondent has no debt and an award of costs would only be “an additional lump sum payment to an already 16 year support judgment for a marriage that lasted 6 and half years”.
[37] On April 19, 2012, the Respondent offered to settle as follows:
a. Continuation of joint custody with primary residence with Respondent. Binding arbitration on issues they could not resolve: school, sports, and extra-activities.
b. $2,500 per month in child support.
c. Respondent to be designated of $1,000,000 life insurance policy as security for child and spousal support.
d. Spousal support of $8,000 per month on non variable (taxable/deductable) for 48 months.
e. To address retro contribution $4,722 per month for an additional 36 months ($170,000 divided) by 36 months.
f. 60 Mann to be sold, from the Applicant’s half he was to pay $400,000 for equalization, or he shall transfer the property to her in satisfaction of equalization.
g. Costs dependent on when accepted at minimum $35,000.
[38] The Respondent’s Bill of Costs are based on $500 per hour for her counsel (has been in practice 32 years).
Disposition
[39] While none of the offers give rise to cost consequences under Rule 18, they do provide information when applying Rule 24 considerations in determining costs.
[40] The Applicant’s submitted that he “was generally disadvantaged by not being able to afford adequate counsel to represent his position not only at trial but for the three years preceding the trial”.
[41] He also commented on the obvious shortcoming of his case “… which already would have been overcome by experienced family law counsel”.
[42] In my judgment I set out the history of this litigation that commenced with each party having senior and experienced family law counsel.
[43] The validity of the Marriage Contract was an obvious issue, as was the Applicant’s income.
[44] The requests for disclosure were appropriate and necessary and could not be resisted.
[45] Rather than get to work on disclosure and providing income analysis and satisfying the obligations the Applicant had in determining his income and his net family property, the Applicant resisted and ignored and chose to attempt to control the process and compelled the wife to retain her own expert. The Respondent’s disclosure requests are noted as early as December 2007.
[46] The Applicant maintained an extravagant lifestyle and lived at times in Muskoka, California, Toronto and Waterdown.
[47] The Applicant was not a person who could not afford counsel but made the decision not to have counsel for trial. I commented on the trial process and make no further comment on his perception of outcome based on his decision not to have counsel.
[48] I cannot speculate as to what advice he may have received from experienced, senior family counsel but I am confident that with timely disclosure, if truly seeking resolution, a fair and reasonable resolution could have been achieved earlier and at less cost to both parties.
[49] Sometimes cases have to be tried.
[50] This was one of those cases.
[51] The offers, both formal, and informal by email are consistent with the Applicant’s position and what outcome he sought including third party payment of household expenses rather than spousal support.
[52] I am satisfied that:
The Respondent was the successful party (rule 24(1)).
She has not behaved unreasonably (rule 24(4).
I do not see divided success (rule 24(6).
The Respondent acted reasonably throughout and was prepared to continue shared residence if the Applicant resolved to live near the child’s school (rule 11(b)).
The Applicant did not act reasonably and attempted to go behind the Respondent’s lawyers and to avoid disclosure and caused delay.
This case was important to both and made more complex and difficult by the Applicant’s income determination and his business interests (rule 11(a)).
The Applicant’s decision to act in person made communication between the Applicant and the Respondent’s counsel difficult.
[53] The Bill of Costs is reasonable, and the expert fees are, when considering the issues, not unreasonable.
[54] The Applicant is to pay the Respondent, inclusive of costs preparation and post trial attendance, $100,000, inclusive of fees, disbursements and HST.
Czutrin J.
Released: November 16, 2012