Court File and Parties
COURT FILE NO.: D24826/14 DATE: 2019/01/08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Maryam Amirmojahedi Applicant
Elena E. Mazinani, for the Applicant
- and -
Roger Edmond Rivette Respondent
Patricia Lucas, for the Respondent
The Honourable Justice T. Maddalena
COSTS ENDORSEMENT
[1] I heard this 13-day trial at Welland, Ontario. The trial commenced in 2017 and ended in 2018. The last of the written submissions were due and received July 31, 2018. My written judgment was released November 22, 2018. Both parties provided written costs submissions, the last of which was due and received on December 20, 2018.
[2] The applicant seeks her costs on a full recovery basis fixed at $201,622.35 inclusive of HST and disbursements.
[3] The respondent requests the dismissal of the applicant’s costs. Further, in addition, the respondent seeks his costs of $1,960.88 for a motion returnable November 1, 2017 by the applicant, which motion was eventually not pursued by her.
Analysis
[4] Family Law Rule 24 governs costs in family law proceedings. Further, Family Law Rule 18 governs offers to settle and consequences resulting therefrom.
[5] This 13-day trial involved a number of issues before the court including the following:
- The date of commencement of cohabitation;
- The quantum and duration of spousal support (the respondent admitted liability);
- The validity of the Maher;
- Property situated at Kevin Drive, Niagara Falls, Ontario;
- The treatment of properties bought and sold during the marriage;
- The equalization of the parties’ net family property;
- Household contents; and
- The divorce.
[6] The applicant was either more successful than the respondent or entirely successful on the issues of the date of cohabitation, the validity of the Maher, the Kevin Drive property, as well as ongoing spousal support.
[7] The respondent was more successful than the applicant on the issue of the equalization of net family property, as I found that, prior to any adjustments, the applicant owed the respondent on account of net family property equalization, the amount of $23,691 (after taking into consideration the adjustment for the Maher).
[8] Neither party was successful on the issue of household contents.
[9] Both were successful on the issue of the granting of the divorce.
[10] I also noted that on two of the most contentious issues, being the treatment of the Maher and the Kevin Drive property, the applicant was entirely successful. Therefore, in accordance with Rule 24(1) of the Family Law Rules, the applicant is the successful party and is entitled to her costs.
[11] Rule 18 requires the court to consider any offers to settle. The applicant submitted two offers to settle, dated November 23, 2017 and March 22, 2018.
[12] The respondent submitted one offer to settle dated January 30, 2018.
[13] After careful review of these offers, I have concluded that none qualifies for consideration pursuant to Rule 18(14). The applicant’s offer of November 23, 2017 required, in part, a $300,000 payment by the respondent to the applicant as a full and final property settlement. It further required retroactive spousal support payments of approximately $41,000 and ongoing spousal support of $2,141 per month.
[14] The property settlement proposed, as well as the retroactive spousal support, was higher than the judgment of the court.
[15] The spousal support actually ordered by the court was $2,243 monthly and commencing January 1, 2017.
[16] The applicant’s offer of March 22, 2018 required a payment by the respondent to the applicant of one-half of the monies held in trust (i.e. approximately $124,000) plus $127,070 for full and final property releases. In addition to the aforementioned, the offer required a payment on account of the Maher in the amount of $50,000 making a total payment of approximately $301,070. It also sought spousal support of $1,500 monthly. This offer was specified as not severable.
[17] The property component of this offer was substantially higher than the amount ordered by the court and the spousal support component substantially lower.
[18] The respondent’s offer of January 30, 2018 contained a provision for payment of spousal support by the respondent of $1,500 per month commencing December 1, 2017. This offer was both time-limited and substantially lower than the amount ordered by the court. In addition, this offer included a clause that the applicant would receive $25,000 in full and final satisfaction of any equalization claims and towards payment of the Maher. This was substantially below what the court ordered and, overall, was not a reasonable offer under the circumstances.
[19] Further, and most concerning to the court in this case, has been the conduct of the respondent, particularly with respect to the Kevin Drive property. I have commented on this in the judgment. The respondent transferred the Kevin Drive property, which was property acquired during the marriage, to him and his daughter. It was sold with all proceeds distributed to him and his daughter. This was all done without the knowledge or consent of the applicant. The applicant discovered the sale and the distribution of the proceeds approximately some six months after the property was sold. This course of conduct amounts, I conclude, to clear bad faith conduct. I stated in the judgment that this was a clear attempt on the part of the respondent to defraud the applicant of her rightful equalization payment.
[20] It is inconceivable to this court that the respondent would act as he did in the midst of litigation concerning the very property. The court must send a clear message that such conduct cannot be tolerated. This is a serious commission by the respondent and in this regard the respondent is clearly the author of his own misfortune.
[21] The respondent, as litigant, is responsible for and accountable for his actions in this long and arduous litigation.
[22] Notwithstanding the above, costs awarded must also be “fair and reasonable” as outlined in Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291.
[23] Even when findings of bad faith are made pursuant to Rule 24(8), the court is still required to apply a sense of reasonableness and fairness. This is outlined in the case of Goryn v. Neisner, 2015 ONCJ 318.
[24] I, therefore, conclude that the applicant should be entitled to her costs. I have considered those factors in Rules 24(12), 24(8) and 24(5) of the Family Law Rules, as well as what is fair and reasonable for the respondent to pay under the circumstances.
[25] I order the respondent to pay costs to the applicant on a partial indemnity basis fixed at $110,000 inclusive of HST and disbursements, payable within 30 days.
Summary of Orders Made
[26] The following orders are made:
(1) The respondent shall pay to the applicant costs fixed at $110,000 inclusive of HST and disbursements, payable within 30 days. (2) The amount of $27,500 of the costs outlined in (1) shall be enforceable as support through the Family Responsibility Office. (3) A support deduction order shall issue. (4) The claim for costs of the respondent is dismissed.