ONTARIO
SUPERIOR COURT OF JUSTICE
SIMCOE COURT FILE NO.: 5359/08
DATE: 2013-01-25
B E T W E E N:
David Darrell Olszowka
T.W. Hainsworth for the husband, Applicant
Applicant
- and -
Anna Marie Olszowka
Respondent
Deborah Ditchfield for the wife, Respondent
The Honourable Mr. Justice B. H. Matheson
E N D O R S E M E N T
I was provided with written submissions on costs by the parties. The last submission was received on the 22nd of November 2012.
The trial itself took some 11 days. The main issue dealt with the issue of ownership of a barn and chicken quotas which were in the name of the respondent. Once that issue was decided, the court was obliged to deal with the issue of equalization.
There was an issue of the question of access and child support of the son, Joey, which did not take up much time of the court as the parties were able to basically resolve the issue themselves. As the respondent stated in her evidence, she and David’s wife, Heather, are able to work out that issue themselves.
The issue of child support took up little time of the court. The respondent was asking for $680 a month, and the court maintained the existing amount of $600 a month.
Thus the cost issue before the court deals mainly with the issue of the barn and the chicken quota.
As stated in my judgment, the applicant, when this matter first started, was for divorce only. It was amended when the respondent claimed ownership of the barn, which was in her name and the chicken quotas also in her name. The applicant then amended his application to claim ownership of those assets.
The parties each made several offers to settle, but none of the offers were accepted and the issue had to be resolved by a lengthy and expensive trial. I will deal with those offers later. I will now deal with the issue of what considerations the court must take into account in arriving at a determination of costs.
Rule 24 of the Family Law Rules outlines in a very detailed manner the items that the court should take into account. There are some sub-paragraphs that do not apply in this case and will not be replicated.
Rule 24 (11) of the Family Law Rules provides that the court should consider the following factors when fixing the amount of costs:
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.
The applicant in his submissions stated that the respondent brought three interlocutory motions. He also stated the following in his written submissions. “The costs of these motions, as mentioned below, were enormous.”
Of the three motions brought by the respondent the results were as follows:
a) Respondent brought a motion to have Lerner and Associates removed from the file, Justice Turnbull granted the motion, but awarded costs against the respondent in the amount of $2,600 and GST of $130. No reasons were provided to this court as to why the learned justice made that cost award.
b) Respondent brought a motion for disclosure. Justice Arkell granted the motion, but ordered no costs. Again, no reasons provided to this court as to why.
c) Respondent brought a motion for exclusive possession of the matrimonial home. Justice Borkovich granted the motion. He awarded no costs to either party.
I certainly do not find the costs to be enormous, nor do I find that by bringing these motions “set a tone of aggressiveness and belligerence that permeated the entire relationship between the first two sets of lawyers.” Mr. Hainsworth was not one of those lawyers.
In this case there was much time spent by both sides in the preparation for trial and the trial itself. Justice Killeen in Pagnotta v. Brown [2002] O.J. No 3033 stated the following at paragraph 25:
Judges and assessment officers have a duty to fix or assess costs at reasonable amounts and, in this process, they have a duty to make sure that the hours spent can be reasonably justified. The losing party is not to be treated as a money tree to be plucked, willy nilly, by the winner of the contest.
A review of the Offers to Settle of the applicant would indicate that he wanted all the assets of the respondent, which were in her name. This was not to be. The offers that he made were an indication, in my opinion, that he wanted the chicken quotas and the barn of the respondent. This would effectively put her out of business as a chicken farmer, notwithstanding the offer of a substantial amount of money.
The offer of the respondent is closer to what the court found, however the offers ran afoul of Rule 18 (14)3, because it has an expiry date, and Rule 18 (14) 2, because it was made within seven days of the start of trial. These are found in the Family Law Rules.
Thus the court must make its decision on costs without the benefit of offers to settle.
The trial lasted some 11 days. The parties spent most of the time at trial dealing with the chicken quotas and the barn known as Barn #2, which was in the name of the respondent.
The respondent wanted to keep the quotas and the barn, whereas the applicant wanted both. He also obtained a certificate of pending litigation on Barn #2.
I found that the applicant took a position that made it impossible for the respondent to deal with.
On the issue of custody and access to the child of the marriage, Joey, they were able to settle that issue, with the input from the applicant’s new wife and the respondent.
As indicated above, I must use Rule 24 to assist in the determination of costs that are to be awarded to the respondent. She was successful in her position as to the chicken quotas and the barn. I found that the applicant took a very hard line and that was the main cause of the length of the trial.
The respondent, in her submissions, is asking for costs on a substantial indemnity basis, all inclusive, of some $233,205.23, or, in the alternative, on a partial indemnity basis, all inclusive, of some $196,014.
I will be awarding costs only on a partial indemnity basis because the respondent was in breach of Rule 18 of the Family Law Rules.
The case was hard fought and the respondent had to take a firm position because of the stance of the applicant. The main issues, that of the ownership of the quotas and Barn #2, were not complex.
I felt that the position of the respondent was reasonable. She was obliged to stand her ground and defend her position. Both of the lawyers are very experienced and presented their clients position in as favourable a position as it could.
In the offer to settle of the applicant, he offered to settle if the respondent transferred to him 15,000 units of chicken quota. He would pay her $340,000.
In option “B” of his offer to settle, he would pay an equalization payment of 1.5 million for all her chicken quota and the lands and Barn #2.
During the trial, he took the strong position that she had all these assets in trust or held beneficially for him.
The offer to settle would indicate that he did have confidence in his position. He took a very hard position.
The respondent was represented by Keith Simpson from the April 23, 2008, until January 4, 2011. His bill was on a partial indemnity basis some $31,370. Ms. Ditchfield took the file over on January 4, 2011. There would be a degree of duplication by the two lawyers. Some of the work done by Ms. Ditchfield would be a duplication of the work done by Mr. Simpson. I am reducing the bill of Mr. Simpson to some $15,000.
In reviewing the remainder of the respondent’s bill of costs, I feel that there was over the period of time that Ms. Ditchfield had the file, that is, from January 4, 2011 until preparing for trial some duplication of work. That is understandable because of the length of time in getting to trial and the periodic review of the matter. I would reduce the respondent’s bill by some $35,000.
Therefore there will be a costs award of some $123,884.40 payable by the applicant within 30 days.
Matheson, J.
Released: January 25, 2013
COURT FILE NO.: 5359/08
DATE: 2013-01-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
David Darrell Olszowka
Applicant
- and –
Anna Marie Olszowka
Respondent
ENDORSEMENT ON COSTS
Matheson, J.
Released: January 25, 2013