ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARIETTE MATOS,
Applicant
– and –
DAVID DRIESMAN,
Respondent
Michael J. Polisuk, Counsel for the Applicant
Brian Ludmer, Counsel for the Respondent
WRITTEN REASONS ON COSTS
Introduction
1On October 8, 2013, I dismissed the Motion of the Respondent, David Driesman, (the former Husband”) in its entirety. The Applicant, Mariette Matos, (the “former Wife”) was entirely successful in having the various parts of the former Husband’s Motion dismissed. In para.65 of my Endorsement I dealt with Costs. I said they should be in written form no longer than 3 pages plus dockets and a Bill of Costs and any case law referred to. I have received their written submissions.
The Parties' Cost Submissions
2The former Wife seeks Costs in the amount of $30,000 plus HST. She also asks the Court to prohibit the former Husband from taking any further steps in the case between them prior to the payment of Costs in full to her. She is still owed Costs from a previous Motion.
3The former Wife’s Bill of Costs from her former counsel, Patrick Schmidt, is included with the submissions made by her new counsel, Michael J. Polisuk dated from June 23, 2010 to April 11, 2011. The parties had entered into a Final Divorce Order signed by Madam Justice Mesbur on April 12, 2010, incorporating Minutes of Settlement and Supplementary Minutes dated April 7 and 9, 2010. Mr. Schmidt’s Bill therefore includes time the former Wife had to spend dealing with more issues raised by the former Husband, despite the wording of the Order that there was to be no further Motions regarding child support for 5 years.
4I have reviewed the entries and cannot, at this point, fix those Costs as part of the Motion I dealt with. I am unclear as to exactly what the balance owing is, given that there is an extra small account at the end and various entries about payments on account, if it relates to the Order and the issue of the insurance policy and the former contempt motion brought by the former Husband. There may be parts leading up to the former’s Husband’s Motion but it is not clear. I suggest that the former Wife speak to her former counsel with a view to clarifying these entries so that I can see what actually relates to the Motion in question. Mr. Schmidt may make further submissions on that issue as to what falls within the Motion brought on by the former Husband before me.
5The Bill of Costs of Michael J. Polisuk is dated November 13, 2013 and covers the period from January 19, 2012 to August 26, 2013, the day the Motion was heard. He has set out his total fees as $31,817.50 plus HST of $4,136.28 for a total of $35,953.78. It appears he has reduced the fee down to a round figure of $30,000, with HST of $3,900, for a total of $33,900.
Offers to Settle
6The former Wife made an Offer to Settle dated August 25, 2013, which was not accepted by the former Husband. In it she offered to settle for an Order dismissing the Motion, an Order that the former Husband’s life insurance carrier provide her with a letter once per year that the policy of the former Husband, payable, to her is still in force and effect, an Order for a $500,000 lien as a first charge on the former Husband’s estate should he die without the policy in place, an Order that the real estate lawyer pay the interest on the net proceeds of the sale of the home in proportion to the monies paid out to each party, and Order that he pay her $15,000 in Costs.
7The former Husband then, on august 26, 2013 agreed to Settle the issue of Legal Costs, with the former Wife choosing ONE of FOUR Options as follows:
Pay $20,000 in total for all legal costs in “various steps” in the litigation.
Pay $20,000 in total for all legal costs in “various steps” in the litigation.
The former Wife shall pay him $10,000 and pay $20,000 to the RESP, which he will administer for the children.
Each party pay his or her own legal costs and the former Wife shall expand the access time the former Husband has with the parties’ daughter.
None of these Options were acceptable to the former Wife.
8The former Husband then put in seven (7) Offers to Settle various aspects of what issues he had raised in the litigation, all of which were dismissed by me. While this may have appeared to him as a novel way to deal with the issues, such as the former Wife to pay to him $500 for damages caused to his desk while in the family home. None of these Offers were acceptable to the former Wife.
The Respondent's Submissions
9The former Husband, still not recognizing that he lost on all aspects of his Motion, submitted lengthy submissions, including things I did not ask for. He filed copies of various contempt motions, when that Motion never went forward and was not before me, e-mails unrelated to the Motion heard by me, copies of other Orders and Endorsements as well as 25 cases, all of which were listed, some 11 under one point presented. Again, this is not proper submissions on a Costs proceeding arising out of a Motion. This was not a Receivership Order nor a Class Action matter, where a Judge may receive extensive case law in support of a complex matter with huge financial implications leading to large Costs.
10The former Husband is of the view that he was “compelled to bring his initial Motion due to the Applicant’s non-compliance with several Court Orders.” This is an incorrect statement, in that the former Wife has never been so found by a Court. He then tries to say that parental Co-Ordinator issues caused him to bring the Motion. That was dealt with by me in my Endorsement, with no finding against the Wife. He then tries to say the issues raised by him were issues which fell under the “catastrophic and unforeseen change in the parties’ respective circumstances” in the Divorce Order. Again, I pointed out in my Endorsement that this had not taken place and the former Husband had no grounds to bring his Motion in the first place. Finally, I found that there were no valid issues arising out of the sale of the matrimonial home, as set out in his Motion.
11The former Husband speaks to “divided success” on the Motion, which again is not correct. There was no divided success.
Analysis and Decision
12Rule 24(1) of the Family Law rules states that there is a presumption that a successful party is entitled to the costs of a motion. The former Wife was fully successful in having the former Husband’s Motion dismissed. In my view, she is entitled to full indemnity Costs, given once again, the former Husband’s inability to accept the reality of what the Court says. Rule 24(11) looks at the factors a Judge may take into consideration when fixing Costs. While the matter should not have been complex, it was made so, as set out in my Endorsement, where the former Husband tried to circumvent the Family Law proceeding in this Court and brought on issues in the Small Claims Court, which had no jurisdiction to hear them. The former Husband was unreasonable in attempting to find small monetary issues to try to get the former Wife to pay. These attempts also failed.
13The former Husband refused for almost 2 ½ years to properly follow the Order respecting the life insurance on his life as a back-up for child support. I also outlined all of this in my Endorsement, and the proper documentation is finally in place.
14In fixing Costs, the Court takes into account what is reasonable in the circumstances of the case and what was at stake in the Motion. In addition, the Court also considers the principle of proportionality and how it applies. Here, the former Husband chose to not accept the realities of the situation and conjured up ways he thought he could get money from the former Wife, while still not paying previous Costs he was ordered to pay to her. The former Wife is entitled to the full Costs, which I fix at $33,900 payable by the former Husband within 30 days of this Order, failing which, the former Husband shall not be allowed to bring on any further Motions in this matter until all Costs have been fully paid, including these Costs. Order to go accordingly.
Greer J.
Released: December 27, 2013
COURT FILE NO.: FS-08-00-339461
DATE: 20131227
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARIETTE MATOS,
Applicant
– and –
DAVID DRIESMAN,
Respondent
WRITTEN REASONS ON COSTS
Greer J.
Released: December 27, 2013