Court File and Parties

Court File No.: 6351/15 Date: 2021/03/02 Ontario Superior Court of Justice

Between: JOHN DAVID VANDERVEN Applicant – and – RHONDA LEIGH VANDERVEN Respondent

Counsel: Self-Represented (for the Applicant) Edward Kiernan, for the Respondent

Reasons for Ruling on Costs

[1] The trial of this matter lasted eight days. I rendered written reasons for judgment found at 2021 ONSC 4, on January 8, 2021.

[2] In the final paragraph of those reasons, I asked Mr. Kiernan to provide his written submissions on costs, a costs summary with supporting dockets and copies of any relevant offers to settle on or before January 25, 2021. Mr. Vanderven was asked to provide similar materials on or before February 7, 2021. Mr. Marks, the former solicitor for Mr. Vanderven and who capably represented him until the last day of the trial when I acceded to his request that he be removed as counsel of record, sent his time dockets and costs summary to assist the court. Mr. Vanderven provided no written submissions on costs in response to those of Mr. Kiernan. I granted Mr. Kieran to February 20, 2021 to serve and file a brief reply. He advised the court that he has not received any submissions from Mr. Vanderven and accordingly, he had no reply.

[3] For the reasons which follow, I order that each party shall bear his/her own costs of this action.

[4] In my view, there was divided success in this trial.

[5] Both parties made offers to settle prior to trial. Mr. Vanderven’s was dated September 27, 2020 and Mrs. Vanderven’s was dated October 8, 2020. Each had severable parts and neither offer was on all fours with the award of the court.

[6] Mr. Vandervan was substantially unsuccessful on the “elephant in the room” which was the valuation of the matrimonial home and the appropriate date of valuation. He wanted current market value (as of the date of trial) for that residence to be the basis for division. However, respondent succeeded in having V day of October 25, 2015 being established as the date of valuation. Having said that, Mrs. Vanderven’s offer to settle on the matrimonial issue was significantly lower than the amount ordered by the court. In part E of her offer dated October 8, 2020, she proposed settling the matrimonial property issue by her paying the applicant $135,000.

[7] On the other hand, the respondent Mrs. Vandervan waited until the eve of trial to concede that the date of separation was October 2015 and not 2011. Her purpose in insisting on the 2011 date was not difficult to ascertain. She was put on title to the matrimonial home by her grandparents in early 2011. If she was able to prove that separation had occurred prior to that event, arguably the applicant would not have been entitled to an equalization interest in the property. I have no doubt that her insistence on the 2011 date was one of the contributing factors which led to this matter having to be tried. Having said that, it was not the sole cause. Mr. Vanderven’s insistence that the trial date value of the residence be utilized for calculating his equalization entitlement was also a significant contributing factor to this matter not being resolved.

[8] On two of the other contested issues in the trial, Mr. Vanderven succeeded in obtaining an award of $17,881 for retroactive spousal support and $8,400 for occupation rent related to the mobile home. However, Mr. Vanderven sought $22,800 in occupation rent and possession of the mobile home. He was far from totally successful on that issue.

[9] In the end, the respondent was granted judgment for $195,647.95, which is approximately $48,000 more than offered by the respondent in her NFPS of October 14, 2020 just before trial. Having said that, the judgment was significantly less than the $270,000 plus the mobile home contained in the applicant’s offer to settle of September 27, 2020.

[10] As stated in paragraph 3 of the judgment in this matter, the “elephant in the room” in this case was the matrimonial home. It carried most of the financial significance for the parties and accordingly the issues surrounding it took the majority of the trial time.

[11] Both parties retained reputable appraisers who testified. They both gave assistance to the court in determining a fair market value as of the date of separation. It is difficult to criticize either party for relying on the professionally rendered opinions. The ultimate valuation of $390,000 was slightly closer to that of the respondent’s appraiser’s position but not to such a degree that it would suggest Mr. Vanderven was irresponsible in relying on Mr. Wilson’s (his expert’s) opinion of value.

[12] Mr. Kiernan notes in his helpful and thorough submissions that on the contested issue which took up most of the trial time, the court’s analysis most consistently came down on the side of Ms. Vanderven. Thus, he argues that costs should be awarded “proportionally” to his client. While proportionality is a factor for the court to consider, it is also to consider what is fair and within the reasonable expectations of the parties.

[13] Mr. Marks’ Bill of Costs indicates that he has expended approximately $60,000 of time on this matter. He practices in Toronto where overhead costs are significantly higher than in the Simcoe area. Having said that, I find his hours claimed and work completed were reasonable and necessary. His preparation was evident in the efficient, fair and courteous manner he presented his client’s case. The same can be said for Mr. Kiernan’s efforts on behalf of his client.

[14] Mr. Kiernan’s Bill of Costs is eminently reasonable and significantly lower than that of Mr. Marks. I would have no difficulty in awarding the sums claimed if the facts were different.

[15] I have considered Rule 24 of the Family Law Rules and find that the parties both behaved unreasonably with respect to some issues from the time the litigation arose.

[16] Ms. Vanderven held on to the 2011 date of separation argument to the very eve of trial. Mr. Vanderven held on to his position that he was entitled to a one-half interest based on the value of 275 at the date of trial. Ms. Vanderven chose not to pay spousal support when she knew, or ought to have known, that she was earning much more income than Mr. Vanderven while at the same time she continued residing in the matrimonial home. To top it off, she allowed her mother to continue living rent free in the mobile home.

[17] Mr. Vanderven argued to the end of the trial that he was entitled to an equalization payment based on 2020 market values in the face of clear law to the contrary. For reasons only known to himself, he changed lawyers five or more times and did not move this matter to trial in a timely way. I do note however that Mr. Vanderven faithfully paid child support in accordance with the Child Support Guidelines for the entire period from the time of separation to the time of trial.

[18] In the circumstances, it is ordered that each party shall bear his/her costs of this trial.

“Signed electronically” Turnbull, J. Date: March 2, 2021