Salewski v. Culetta, 2011 ONCJ 736

Cambridge Registry No. 103247 DATE: 2011·VI·15 CITATION: Salewski v. Culetta , 2011 ONCJ 736 ONTARIO COURT OF JUSTICE BETWEEN: DARLENE SALEWSKI, Applicant — AND — PAUL CULETTA, Respondent Before Justice Paddy A. Hardman Decision regarding costs released on 15 June 2011 Catherine A. Haber ................................................................................... counsel for the applicant Tara A. Lattanzio ................................................................................... counsel for the respondent For previous proceedings, see Salewski v. Culetta , 2011 ONCJ 524 , [2011] O.J.

No. 4784, 2010 Cars​well​Ont 11716 (Ont. C.J.), per Justice Paddy A. Hardman. [ 1 ] JUSTICE P.A. HARDMAN:— The applicant seeks costs of the proceeding dealing with spousal support, life insurance and benefits. Included in the claim are the costs for the motion seeking interim relief and the costs of the proceedings in general including the trial. The respondent resists the application.

POSITION OF THE PARTIES The Motion [ 2 ] The matter was argued on October 22, 2010 and the Court ordered interim support of $3205 per month, commencing October 1, 2010, noting that the amount was based on the Spousal Support Guidelines for a “30 year marriage”. Further, that Court ordered that the applicant be maintained as a 50% beneficiary of the respondent’s $100,000 life insurance policy.

The endorsement also notes that the issue of costs regarding the motion was adjourned to the trial judge. [ 3 ] The day before the motion, on October 21, 2010, the applicant served the respondent with an Offer to Settle the issues on the motion. In that offer, the applicant offered to settle for $3200 monthly spousal support and being the irrevocable beneficiary of the entire life insurance policy.

However, the offer was faxed to the respondent’s counsel at 3:15 p.m. and was only open for acceptance without costs before 5 p.m. [ 4 ] The applicant has submitted that a motion for interim support was required because the respondent refused to pay reasonable spousal support and seeks costs on a full indemnity basis. She also relies on the fact that the respondent took an unreasonable position before the motions court. [ 5 ] The respondent submits that the Offer did not provide enough time for acceptance and included costs if not before 5 p.m.

Further, he argues that the position he took at the time of the motion was reasonable. The Proceedings [ 6 ] The applicant seeks her costs on a full indemnity basis given her success at trial, the respondent’s unreasonable behaviour and bad faith, and the Offer to Settle made November 23, 2010. [ 7 ] The respondent submits that the respondent acted in a “reasonable and diligent” manner throughout the proceedings and

that he did ultimately make an Offer to Settle. He points out that the Offer made by the applicant included costs of $7,500 if accepted by December 3, 2010 and $10,000 afterward, plus costs of $500 per day or part day of trial. [ 8 ] He also complains that certain of the charges sought are too high and notes that the applicant’s counsel should not have needed 27.8 hours to prepare for a one day trial or spend $45,000 to litigate a matter that was not complex, especially given the applicant’s means.

DECISION [ 9 ] Clearly Family Rules 18 and 24 are the rules guiding the award of costs. [ 10 ] On the issue of the motion, the applicant served an offer that unfortunately had a very narrow timeline for acceptance without costs. However, there is no evidence that the respondent made any attempt to have the time to accept the applicant’s offer to settle without costs extended; indeed, he made no offer at all. [ 11 ] As this Court did not hear that motion, it is difficult to analyse the specifics of the positions taken by the parties in their submissions.

Certainly it would appear that that Court did not accept the respondent’s position as the appropriate one. The applicant was fully successful on the issue of support and partially successful on the issue of insurance. [ 12 ] Further, this Court has already made the finding that the respondent’s financial disclosure has not been timely or complete throughout the proceedings.

Given the applicant’s attempt to settle the matter and her partial success, some costs regarding the motion should be paid by the respondent to the applicant. [ 13 ] Regarding the proceedings in general, I have already expressed concern about the respondent’s behaviour in the context of both his approach to the severing of his long-term relationship with the applicant and the court proceedings. I have described his behaviour in my decision as “troubling” on a number of fronts, including the problems with the respondent’s financial disclosure, testimony and behaviour toward the applicant.

His decision to terminate his assistance to the applicant at the same time as he took on more debt was extraordinary and unnecessary. I noted that he simply decided to “prioritize” his girlfriend instead of his partner of thirty years. [ 14 ] In his submissions regarding costs, the respondent has said that it was not bad faith that the respondent treated the applicant as he did.

He states that the “new partner” was “unemployed and battling cancer” and in his opinion needed the benefits more that the applicant. [ 15 ] Unfortunate as the position of his new partner may be, it does not mean that it was not bad faith to treat the applicant the way he did. In my view, there are many examples of his unreasonable behaviour and bad faith including the removal of the applicant from his benefits.

As I noted, the respondent had a legal obligation to the applicant, not to the new partner. [ 16 ] It is clear that his behaviour has been unreasonable and that he has shown bad faith in his approach to the proceedings and his obligation in law to the applicant. The issue of any difficulties in the applicant receiving the interim support in my view are not clear and cannot be a factor in awarding costs. [ 17 ] In his submissions, the respondent attempts to rely on the reasonableness of his position to impute income to the applicant at her former level of earnings.

Clearly I did not find that was reasonable as there was no evidence as to when or if such earnings would be available to her again. [ 18 ] Also, the respondent seems to suggest that an Offer to Settle that includes costs should not be considered as a reasonable offer. In my view, the offers to settle both at the motion and prior to trial that included a position as to costs were reasonable. At a minimum, the respondent should have made more of an effort to settle this matter.

His offer of November 23, 2010 was significantly below what the court ordered. [ 19 ] The applicant has sought costs at the full indemnity rate in the amount of $3,562.50 for the motion plus disbursements of $127.60. She has fixed costs at the partial indemnity rate at $2775.00. In the “Costs Outline” for the balance of the proceedings including trial, costs are proposed to be $41,756.52 including disbursements at a full indemnity rate and $35,677.12 at the partial rate. [ 20 ] It is unfortunately clear, given the inadequate disclosure, that the decision to examine the parties was necessary.

Further, while the matter may not have been complex legally, the claims made by the applicant were significant to her welfare in the future. [ 21 ] The Court does share some of the respondent’s concerns about the travel allowance amounts and the time noted to prepare for trial. Therefore, in the consideration of costs, those amounts should be reduced. [ 22 ] It should be noted that despite the success of the applicant, it is open to the Court to consider particular circumstances of the respondent in awarding costs pursuant to subsection 131(1) of the Courts of Justice Act .

In this case, while there is no child support payable, there is the ongoing obligation to pay spousal support. Further, it is clear that the respondent has voluntarily taken on a great deal of debt and responsibility. [ 23 ] It is my view that the evidence disclosed that the respondent had significant savings and therefore is in a position to pay appropriate costs. [ 24 ] The rules have made it clear that parties are obliged to act reasonably and that costs are to be awarded to parties when they do and against them when they do not.

The Court must apply the rules in a manner that is consistent with encouraging settlement.

[ 25 ] This matter was not complex as noted by the respondent and should have settled. The respondent’s failure to disclose information and his unreasonable behaviour are proper cost considerations. ORDER [ 26 ] Therefore, the court orders the following: 1. The respondent is to pay forthwith to the applicant the sum of $3,000 toward her legal costs for the motion. 2. The respondent is also to pay forthwith to the applicant the sum of $30,000 toward her legal costs of the proceedings. Released: 15 June 2011 Signed: “Justice Paddy A. Hardman”