COURT FILE NO.: FS-18-4347 DATE: 20230323 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Antonio Conorado Barbieri Applicant – and – Karin Joanne Vistoli Respondent

Counsel: No-one appearing for the applicant Andrew Feldstein, for the Respondent

HEARD: In Writing

M. Kraft, J.

Endorsement

Overview

1On February 24, 2023, I released my Reasons for Decision in this matter which proceeded as an uncontested trial determining all of the issues between the parties including support, division of net family property, post-separation adjustments and costs. The matter proceeded by way of an uncontested trial when the applicant’s (“Tony’s”) pleadings were struck by the order of Monahan, J., dated September 1, 2021.

2On March 15, 2023, the respondent, Karin, brought a 14B motion requesting that I revisit the amount of costs I awarded to her for the uncontested trial and overall matter. ¹ She also sought an order that I correct an inadvertent mathematical error in paragraph 283 of my judgment to change the amount of the equalization payment owing by Tony from $157,792.04 to $82,471.47, which is the equalization payment prior to accounting for post-separation adjustments.

Mathematical Errors in Net Family Property / Equalization Payment Calculation

3At paragraph [180] of my Judgment I summarized each party’s net family property (“NFP”), based on my findings that TCB Homes was jointly owned by the parties on the date of marriage and the date of separation and that the jointly owned cottage property did not qualify as a matrimonial home on the date of separation.

4Karin submits that my calculations contain the following inadvertent mathematical errors and/or typographical errors, which once corrected, will require a correction to the amount of the equalization payment (“EP) she owes Tony. These errors are as follows:

a. Tony’s total debts on V-date: On page 36, under the “Debts and Other Liabilities” heading in paragraph [180], I totalled Tony’s debts on the V-date to be $600,158.20. I find that I did make a mathematical error in tallying up the total of Tony’s debts on V-date. The correct total of Tony’s debts and other liabilities on the V-date is $541,649.24, calculated as follows:

Subparagraph	Debt or Liabilities on V-date	Value
a.	50% of joint MH mortgage	$458,676.30
b.	50% of joint RBC Home Line Plan mortgage for cottage	$58,508.96
c.	50% of joint RBC Home Line Plan mortgage	$10,729.12
d.	50% of joint RBC Visa	$6,706.99
e.	50% of joint Amex card	$3,544.95
g.	50% of NDC for matrimonial home	$1,660.73
h.	50% of NDC for the cottage	$1,822.19
	Tony’s total Debts on V-date	$541,649.24

b. Tony’s total date of marriage deductions: On pages 36-38, under the “Date of Marriage Deductions” heading in paragraph [180], I totalled Tony’s date of marriage deductions to be $215,621.12. I find that I did make a mathematical error in tallying up Tony’s date of marriage deductions. The correct total of Tony’s date of marriage deductions is $213,798.93, calculated as follows:

Subparagraph	Item	Value
a.	Land in Texas	$1,419.55
e.	RBC sole chequing account	$9,287.91
f.	RBC USD account	$1,996.82
i.	TCB Homes LLC	$201,094.65
	Tony’s total date of marriage deductions	$213,798.93

c. Karin’s date of marriage debt of joint mortgage on joint cottage owned with former spouse: In paragraph [179] of my Judgment, I found that the cottage was not a matrimonial home on the V-date and, as such, Karin could deduct her 50% interest in the cottage based on 50% of its value on the date of marriage. Karin submits that my Judgment is inconsistent because when I considered the joint line of credit registered on title to the cottage property as at the date of marriage, I placed 100% of the debt on Karin’s side of the ledger, when I had earlier found that Karin only had a 50% interest in the cottage property as at the date of marriage, resulting in her total date of marriage deductions being $438,167.66. I find that I did inadvertently attribute the entirety of the joint line of credit attached to the cottage to Karin on the date of marriage when only 50% of this debt was Karin’s responsibility on the date of marriage. The correct total of Karin’s date of marriage deductions is $526,567.66, calculated as follows:

Subparagraph	Item	Value
b.	50% of cottage property	$137,500.00
c.	Jewellery	$10,000.00
d.	TD Bank account	$6,573.01
g.	St. Lucas Holdings Inc.	$170,000.00
h.	Shareholder loan owing from St. Lucas Holdings Inc.	$40,400.00
i.	TCB Homes LLC	$201,094.65
j.	Shareholder’s loan from Painters Plus	$67,000.00
k.	Painters Plus	$1,400.00
l.	Contingent taxes for St. Lucas Holdings	-$19,000.00
m.	50% of line of credit registered on title to the cottage property	-$88,400.00
	Karin’s total date of marriage deductions	$526,567.66

5As a result of the corrections outlined in paragraph [4] above, I find that correct calculation of the EP owing by Karin to Tony is $82,476.57 (prior to post-separation adjustments), calculated as follows:

a. Tony’s assets on V-date of $1,547,301.82 less Tony’s debts on V-date of $541,649.24 less Tony’s date of marriage deductions of $213,798.93 = $791,853.65

b. Karin’s assets on V-date of $2,105,058.95 less Karin’s debts on V-date of $621,684.70 less Karin’s date of marriage deductions of $526,567.66 = $956,806.59

c. The higher NFP minus the lower NFP divided by 2 = EP, which is $956,806.59-$791,853.65=$164,952.94 /2 = $82,476.57. ²

6As a result, paragraph 283 of my Judgment shall be amended and the figure of $157,792.04 shall be deleted and replaced with $82,476.57, prior to the set offs of the post-separation adjustments.

7This amendment results, however, in there being a shortfall owing to Karin once the post-separation adjustments are set off against the EP owing by her to Tony of -$74,312.79. The only way for this shortfall to be paid to Karin is from Tony’s half-share of the net proceeds of sale from the matrimonial home and cottage proceeds. This matter will be addressed below.

Costs Order Made in the Uncontested Trial

8In her affidavit, Karin confirmed that the two unpaid costs orders against Tony arising from the order of Monahan, J., dated September 2021 and order of Sharma, J., dated February 2022, were satisfied and that the only outstanding costs are those I order in connection with this uncontested trial. Accordingly, paragraph 283(i) where I order that any previously ordered court costs, not previously satisfied by Tony, are to be paid to Karin from Tony’s half-share of the net matrimonial home and cottage proceeds by Schwartz and Partners, is not necessary.

9In paragraph [279] of my Judgment, I ordered Tony to pay costs of this uncontested trial to Karin in the fixed sum of $80,000, inclusive of disbursements and HST, to be paid out of Tony’s half-share of the net matrimonial home/cottage proceeds.

10Karin asks that I reconsider my costs order because in paragraph [278] I stated that,

“There were no dockets that accompanied the Bills of Costs and, as a result, it is impossible for me to determine whether the fees incurred by Larry Silverberg and/or the Feldstein Family Law Group were incurred specifically for this uncontested trial or were connected to attendances and appearances between the time Tony issued this Application and now.”

11Karin’s affidavit clarifies that the Bill of Costs excluded fees related to motions for which either party was awarded costs to preclude double counting. Further, Karin’s affidavit explains that the copy of the Bill of Costs attached at Exhibit “UUU” of her Form 23C affidavit did not include the client ledger and spreadsheet which particularized dockets for this case, due to software and computer limitations. As a result, Karin deposed her counsel was not able to file the dockets through the JSO portal or through email. Her counsel was advised by the Court filing office to file a hardcopy of her Uncontested Trial and a USB stick with a PDF copy of same. Karin is correct in her suspicion that I did not receive the fulsome copy of the Bill of Costs that were filed by the court, when I made the costs order of $80,000, fixed.

12My review of the fulsome client ledgers and spreadsheets show that the time spent by Karin’s lawyers, as broken down by year in the Bills of Costs and by lawyer, are as follows: $10,708.50 incurred in 2019 by the Feldstein Family Law Group (“FFLG”); $55,677 incurred in 2020 by the FFLG; $56,033 incurred in 2021 by the FFLG; and $43,446 incurred in 2022 by the FFLG. This comes to a total of $165,864.50 by FFLG; a total of $65,272.84 incurred by Larry Silverberg between 2019 and 2021; and a total of $40,915.88 incurred by the Arizona lawyers.

13To further breakdown the legal fees, the FFLG fees and the fees from Larry Silverberg, inclusive of HST is $261,185.19 for the combined Canadian fees and $40,915.88 for the Arizona lawyers, which sum has converted USD to CAD, for the total fees amounting to $302,101.07 as of April 25, 2022. The total disbursements plus GST come to $21,432.26, for an all-inclusive figure of $323,533.33. These fees relate only to the uncontested trial.

14I note that the Bill of Costs excluded all fees associated with prior motions for which costs were ordered against either party.

15Upon a thorough review of the dockets that accompanied the Bill of Costs, I am satisfied that Mr. Silverberg’s fees and disbursements of $65,272.84 were reasonable and proportionate to the issues on this uncontested trial. I find that it is reasonable that Karin receives costs connected to Mr. Silverberg’s fees in the fixed sum of $46,000, inclusive of HST.

16If Karin is entitled to full recovery costs from the time she served her Offer to Settle on October 15, 2021, then the fees incurred by the FFLG in 2022 should be recoverable in the sum of $43,446. I find that in addition to these fees, it is reasonable for Karin to receive another $20,000 in costs arising from the fees incurred by FFLG, such that the total sum payable by Tony to Karin is fixed in the sum of $109,446, inclusive of disbursements and HST.

Fees owing to Devry Smith Frank LLP

17An affidavit from John P. Schuman was filed in response to Karin’s 14B motion. John P. Schuman is a partner with the law firm of Devry Smith Frank LLP. The affidavit was filed because Devry Smith Frank LLP is a party affected by the order sought by Karin, arising from my Judgment, dated February 24, 2023.

18In paragraph 283 of my Judgment I ordered that Schwartz and Partners, the real estate lawyers, be directed to pay from Tony’s half-share of the net proceeds of sale of the matrimonial home and cottage, the sum of $164,949.57 in outstanding fees and interest owing to Devry Smith Frank LLP and Kalex Valuations Inc., in accordance with charging order of Kiteley, J., dated February 17, 2021. Of the $164,949.57 in outstanding fees, $153,815.69 was owing to Devry Smith Frank LLP (being $138,407.89 balance + $15,407.80 in interest) and $11,133.88 is owing to Kalex Valuations. At the time of my Judgment, the court was aware that Tony owed $153,815.69 as at February 16, 2022 as well as potentially another $2,500 in costs ordered by Kiteley, J., dated February 17, 2021.

19Mr. Schuman’s affidavit sets out that Tony is indebted to Devry Smith Frank LPP for additional interest which has accrued to Kiteley, J.’s order. On December 20, 2022, Devry Smith Frank LLP obtained judgment against Tony in the sum of $193,186.92, a copy of which was attached as Exhibit “A” to Mr. Schuman’s affidavit. Mr. Schuman deposes that the full amount of that judgment does not include any amounts owing by Tony to Kalex Valuations Inc. which remains outstanding.

20As I set out in paragraphs [256] and [257] of my Judgment, Devry Smith Frank LLP and Kalex Valuations have charging orders for their outstanding fees secured against Tony’s 50% share of the matrimonial home and cottage sale proceeds, which rank in equal priority to Karin’s claims, such as property and post-separation adjustments, but secondarily to her child support arrears. Since Tony’s child support arrears were set off against the EP Karin owes Tony, I initially found that the monies owing to Devry Smith Frank LLP and Kalex be paid from his 50% share of the matrimonial home and cottage proceeds and should rank proportionately to the balance of Karin’s claims which include the costs I order in this Uncontested Trial, and any shortfall arising from the post-separation adjustments. Now that I have calculated that there will be a shortfall arising from the post-separation adjustments because of the correction to the EP calculation of -$74,312.79, it is likely that Tony’s half-share of the matrimonial home and cottage proceeds will not be sufficient to cover the professional fees owing to Devry Smith Frank LLP and/or Kalex as well as the sums that remain owing to Karin.

21Mr. Schuman deposes that there is an additional “buffer” in my judgment with respect to the Arizona Property net sale proceeds. He is not correct. As fully explained in my Judgment, the Arizona Property net proceeds of sale are being held in trust in USD by Schwartz Law Partners LLP in the total sum of $388,841.65 USD. I found that as part of the post-separation adjustments, Tony was to reimburse Karin $165,175.97 USD which she paid to discharge Tony’s LM2 Loans and HOA late fees and $2,375 USD on account of the reduction she was forced to provide to the purchase of the West Bloomfield property. I ordered that those two amounts in USD be paid to Karin from Tony’s half-share of the Arizona Property net proceeds which are being held in USD. However, because of the holdback required for estimated taxes in connection with the sale of the Arizona Property sale, there is a shortfall of $13,806.32 USD owing to Karin. This sum was converted to CAD at the exchange rate of 1.2663 and amounts to $17,482.94 CAD, which I ordered Tony to pay Karin from his half-share of the net proceeds of sale of the matrimonial home and cottage. This analysis is clearly laid out in the section “Proceeds of sale from the Arizona Properties” in my judgement on pages 48 and 49.

22Now that Karin confirmed Tony paid the previously court ordered costs of $49,929.88, the total sum of $405,562.53 ³ is what will now have to be paid from Tony’s half-share of the net sale proceeds from the matrimonial home and cottage of $388,764.40, which creates a shortfall of $16,798.13.

23I find that since there will be insufficient funds from Tony’s half-share of the net sale proceeds from the matrimonial home and cottage, which amount to $388,763.40, the amounts ordered to be paid to Devry Smith Frank LLP, Kalex Valuation Inc.; and to Karin ought to be paid out proportionately.

24It is unknown to the court as to whether Kalex Valuations Inc. is owed fees in addition to the $11,133.88 set out in the Kiteley, J. charging order, on account of interest. Without that information the proportionate calculation cannot be fully completed by the court.

ORDER

25Accordingly, paragraph 283 and (x) shall be deleted and replaced with the following:

Property Division

u. In satisfaction of any and all property division claims the applicant may have against the respondent under Part I of the Family Law Act and in satisfaction of any and all claims the respondent has against the applicant on account of post-separation adjustments, the respondent shall pay the applicant an equalization payment (“EP”) of $82,476.57. Set off against this EP shall be the following payments from the applicant to the respondent as post-separation adjustments:

i. The sum of $35,529 in satisfaction of the applicant’s arrears of child support for the period November 1, 2017 to and including February 28, 2023;

ii. The sum of $36,411.45 to reimburse the respondent for the applicant taking a disproportionate sum from the parties joint account held at Wells Fargo connected with TCB Homes;

iii. The sum of $54,755.37 to reimburse the respondent for the applicant’s 50% share of the matrimonial home mortgage payments paid for solely by the respondent post separation;

iv. The sum of $12,299.92 to reimburse the respondent for the applicant’s 50% share of the cottage mortgage and LOC paid for solely by the respondent post separation;

v. The sum of $7,500 to reimburse the respondent for the applicant’s 50% share of cottage renovations and upgrades paid for solely by the respondent post separation;

vi. The sum of $5,000 to pay the respondent the promised amount by the applicant to accept a specific offer to purchase the matrimonial home;

vii. The sum of $5,293.62 to reimburse the respondent for the applicant’s 50% share of the joint life insurance premiums paid for solely by the respondent post separation.

viii. Any shortfall arising from (i) to (vii) above shall be satisfied by the applicant paying the respondent from his half-share of the net proceeds of sale from the matrimonial home and cottage.

x. The law firm, Schwartz and Partners, shall be directed to pay the following amounts to the respondent from the applicant’s half-share of the net proceeds of sale of the matrimonial home and cottage on a proportionate basis:

i. The sum of $193,186.92 in outstanding fees and interest owing to Tony’s prior counsel and $11,133.88 (plus interest in amounts unknown) to Kalex.

ii. The sum of $17,482.94 to the respondent, being the shortfall of monies owing on account of post-separation adjustments arising from the sale of the Arizona Properties.

iii. The sum of $74,312.79 to the respondent, being the shortfall of monies owing on account of post-separation adjustments;

iv. The sum of $109,446 to the respondent on account of the costs associated with this uncontested trial; and

v. The balance, if any, to be released to the applicant.

y. The interested parties, Devry Smith Frank LLP and Kalex Valuations are encouraged to try and reach agreement with the respondent about their proportional entitlement to be paid from Tony’s half-share of the net sale proceeds of the matrimonial home and cottage and/or the amounts the respondent is to be reimbursed as set out in paragraph 283 of my Judgment. If the parties are unable to agree on this calculation, they may contact my assistant Josie Harvey at josie.harvey@ontario.ca and arrange a conference on a weekday at 9:00 a.m. before me on an agreeable date.

M. Kraft, J.

Footnotes

1. 1In support of her 14B motion, Ms. Vistoli filed an affidavit sworn on March 15, 2023.
2. 2Karin has calculated the correct EP to be $82,471.47, prior to post-separation adjustments, and my calculations differ, and I find that the correct EP owing to Tony is $82,476.47.
3. 3The fees owing to Devry Smith Frank LLP of $193,186.92 and Kalex Valuations of $11,133.88; the shortfall from the Arizona Property sale of $17,482.94; the shortfall from any other post-separation adjustments referred to above of $74,312.79; and the costs ordered for this uncontested trial, fixed in the sum of $109,446.