Superior Court of Justice - Ontario

Citation: Dick v. Sapusak, 2016 ONSC 1094 Court File No.: FS-14-19456 Date: 2016-02-12

Re: Virginia Jean Dick, Applicant And: Richard James Sapusak, Respondent

Before: Harvison Young J.

Counsel: Lisa Baumal, for the Applicant No one appearing for the Respondent

Heard: in writing

ENDORSEMENT AS TO COSTS ARISING FROM UNCONTESTED TRIAL

[1] In December, 2015 I released reasons for decision 2015 ONSC 7458 in which I granted judgment at paragraph 53 for quantum meruit damages in the amount of $40,324 (and pre-judgment interest), lump sum spousal support in the amount of $100,000 (and pre-judgment interest) and a vesting order to secure payment. Counsel has provided written submissions in which she asks for the following:

(a) an order for costs of the uncontested trial plus the case conference on October 14, 2014 and the motion to appoint the Office of the PGT heard on October 14, 2015, the costs of which were adjourned to trial, fixed in the amount of $14,487 inclusive of all fees, disbursements and taxes and payable forthwith;

(b) an order for pre-judgment interest fixed in the amount of $3,143.64;

(c) an order that the costs of $14,487, together with costs in the amount of $2,200 fixed by Justice Kruzick on January 27, 2015 and pre-judgment interest of $3,143.64 be payable to the Applicant from the net proceeds of sale of 40 Church Street, Weston, Ontario M9N 1M6 if they have not otherwise been paid to the Applicant by the Respondent.

[2] Pursuant to rule 24(1) the Applicant as successful party is entitled to costs. She was not successful in her motion to appoint the Office of the PGT however it was a necessary step in the proceedings as it had been directed by Paisley J. and she should recover costs of that motion.

[3] Counsel for the Applicant argues that the Respondent has acted in bad faith in that he refused to participate and respond in the proceedings with the exception of the one attendance before Goodman J. On that basis, relying on rule 24(8) counsel asserts that he should be ordered to pay costs on a full recovery basis.

[4] At paragraph 68 of Scalia v. Scalia 2015 ONCA 492, the Court of Appeal defined the legal test for bad faith in the family law context as behavior shown to be carried out with intent to inflict financial or emotional harm on the other party or persons affected by the behavior, to conceal information relevant to the issues or to deceive the other party or the court. In short, the essential components are intention to inflict harm or deceive.

[5] The facts in that case were similar except that the respondent had died and it was his son who was acting as litigation guardian. As the Court of Appeal observed at paragraphs 69 – 71, the findings of the application judge supported a finding of unreasonableness, but did not rise to the level of wrongdoing, dishonest purpose or moral iniquity essential for a finding of bad faith. The same applies here. The Respondent did not participate, did not provide disclosure and did cause the Applicant to take more costly steps to bring the matter to a conclusion. But the evidence demonstrated that the Respondent had physical and mental health issues from which I conclude that he was acting unreasonably but not in bad faith and therefor recovery of full indemnity costs is not appropriate.

[6] Ms. Baumal has provided a bill of costs that totals $10,650 for fees based on an hourly rate of $300.00. She was called to the bar in 1992 and I therefore consider her hourly rate to be modest. For that reason, I will discount the total claimed for fees only by 10% rather than the 25% that might otherwise be the case. The disbursements of $2,452.50 are not detailed but I accept the expenditures as consistent with a case of this nature.

[7] The parties separated on March 28, 2014 and the reasons for judgment were released 629 days later on December 17, 2015. I agree with counsel that the pre-judgment interest rate was 1.3% and I accept her calculation.

[8] Consistent with paragraph 53(c) of my reasons, the costs order dated January 27, 2015 and the costs and pre-judgment interest should all be paid out of the proceeds of sale of 40 Church Street which the Applicant will be able to pursue as a result of the vesting order.

ORDER TO GO AS FOLLOWS:

[9] The Respondent shall pay the following:

(a) Costs calculated as follows:

Fees in the amount of $ 9,585.00

HST on fees (13%) $ 1,246.00

Disbursements $ 2,452.50

Total fees and HST and disbursements: $13,283.50

(b) Costs ordered by Kruzick J. $ 2,200.00

(c) Pre-judgment interest at 1.3% $ 3,143.64.

[10] The amounts set out in paragraph 9, together with post-judgment interest, shall be payable to the Applicant from the net proceeds of sale of 40 Church Street, Weston, Ontario M9N 1M6 if they have not otherwise been paid to the Applicant by the Respondent.

Harvison Young J.

Date: February 12, 2016