





CITATION:
Aksman v. Shenderey, 2011 ONCA 816



DATE: 20111222



DOCKET: C52405



COURT OF APPEAL FOR ONTARIO



OConnor A.C.J.O., Laskin and Cronk JJ.A.



BETWEEN



Inna Aksman



Applicant (Respondent)



and



Felix Shenderey



Respondent (Appellant)



Gary Joseph and K. Younie, for the appellant



Carol A. Bargman, for the respondent



Heard:
December 14, 2011



On appeal from the order of Justice
          Craig Perkins of the Superior Court of Justice, dated June 18, 2010, with
          reasons reported at 2010 ONSC 3559, and the costs order dated November 5,
          2010, with reasons reported at 2010 ONSC 6127.



ENDORSEMENT



[1]

Mr. Shenderey makes three submissions on this appeal.  First, he submits
    that the trial judge erred in his monetary award for unjust enrichment. 
    Second, he submits that the trial judge erred in awarding lump sum spousal
    support.  And third, he submits that the trial judges costs award is
    excessive.

[2]

We decline to give effect to any of these submissions.

1.
The Award for Unjust Enrichment

[3]

The trial judge awarded Ms. Aksman $298,000,
    plus pre-judgment interest on her claim for unjust enrichment.  This award has
    two components: direct financial contributions and compensation for the
    provision of domestic services.

[4]

The trial judge found that Ms. Aksmans
    financial contributions between 1999 and 2005 amounted to $200,000.  He also
    found that over that period of seven years, she provided domestic services
    worth $98,000.  These findings were grounded in the evidence, especially in the
    detailed evidence and record keeping of Ms. Aksman, which the trial judge
    accepted.  Mr.
Shenderey does not challenge these findings but argues
    that the trial judge failed to consider three set-offs:

·

Mr.
Shendereys contributions in the
    first four years of their relationship, which the trial judge held either
    matched or exceeded those of Ms. Aksman;

·

Mr. Shendereys contributions to the payment of the credit card
    debts; and

·

Ms. Aksman benefitted from living in Mr. Shendereys house
    rent-free for one year after the parties separated.

[5]

As we read the trial judges reasons, he did
    take these set-offs into account.

[6]

The trial judge did not specifically analyze
    whether Mr.
Shendereys contributions exceeded those of Ms. Aksman
    during the period 1994 to 1998, the first four years of their relationship. 
    However, the trial judge gave very detailed reasons, and reading those reasons
    as a whole, we think it implicit that he was satisfied no set-off was required.

[7]

On the credit card contributions, the trial judge found at para.
    67 of his reasons that many of the credit card purchases went into Mr.
    Shendereys business and the home, both of which he owned.

[8]

Finally, the trial judge took into account Ms. Aksmans year of rent-free
    accommodation by not awarding her the spousal support that she would otherwise have
    been entitled to for that period.

[9]

Accordingly, the appeal from the award for unjust enrichment must
    fail.

2.
Lump Sum Spousal Support

[10]

The trial judge was entitled to order lump sum
    support.  These orders are discretionary and case specific, and can be justified
    by a wide variety of circumstances: see
Davis v. Crawford
, 2011 ONCA
    559, 106 O.R. (3d) 221, at paras. 66 to 67.

[11]

Here, the trial judges reasons at para. 101 of
    his decision provide an adequate foundation for the lump sum order.  As
Davis
    v. Crawford
requires, the trial judge weighed the advantages of a lump sum
    payment against its disadvantages.  For example, as Ms. Bargman pointed out,
    Ms. Aksman testified that Mr.
Shenderey was chronically late in his
    support payments.

[12]

We therefore have no basis to interfere with the exercise of the
    trial judges discretion in making the lump sum award.  This ground of appeal
    fails.

[13]

We add, however, that effect should be given to the second
    sentence at para. 103 of the trial judges reasons.
[1]


3.
Costs

[14]

Costs awards, of course, are discretionary.
    Appellate interference is rarely warranted.

[15]

Here, the trial judge gave thorough reasons for
    his costs award.  Ms. Aksman sought costs of $228,000.  The trial judge found
    that her request was excessive.  He awarded her costs of $131,000 (inclusive of
    disbursements).  We are not persuaded that this award is unreasonable or plainly
    wrong.  Several considerations support our opinion.

[16]

First, the trial judge properly took into
    account the length of the trial.  Second, the trial judge noted that Ms.
    Aksmans recovery exceeded her offer to settle, made seven weeks before trial. 
    Third, the trial judge carefully perused counsels bill of costs, and for
    example, substantially reduced the amount sought for the expert accountant and
    for pre-trial proceedings.

[17]

For these reasons, leave to appeal costs is
    denied.

[18]

The appeal is accordingly dismissed, with costs fixed
    at $10,000, including disbursements and applicable taxes.

D. OConnor A.C.J.O.

John Laskin J.A.

E.A. Cronk J.A.





[1]

Where he stated: 
Credit is to be given for all sums
    paid to the applicant, but net of any tax she paid on them.


