



COURT OF APPEAL FOR ONTARIO

CITATION: Pustai v. Pustai, 2019 ONCA 67

DATE: 20190131

DOCKET: C64351

Hoy A.C.J.O., van Rensburg and Pardu JJ.A.

BETWEEN

Scott Timothy Pustai

Applicant (Respondent)

and

Christine Marie Pustai

Respondent (Appellant)

Michael H. Tweyman, for the appellant

Stephen P. Kirby and William Abbott, for the respondent

Heard: July 16, 2018

On appeal from the final
    order of Justice Hugh K. OConnell of the Superior Court of Justice, dated
    August 30, 2017.

COSTS ENDORSEMENT

[1]

This court allowed the appeal of a judgment that
    was primarily with respect to spousal support:
Pustai v. Pustai
, 2018 ONCA 785. In the result, the trial judges order, which
    reduced for one year and then terminated the monthly $3,000 spousal support payment
    to which the parties had previously agreed, was replaced by an order reducing
    the appellants spousal support to $2,350 per month from June 1, 2013 to December
    31, 2017 and fixing support at $2,250 per month effective January 1, 2018. The
    trial judges order requiring the appellant to pay the respondent one half of
    the proceeds of the sale of the matrimonial home was set aside. The court fixed
    the costs of the appeal, and invited the parties, if they were unable to agree,
    to provide written submissions on their costs in the court below.

[2]

The court has now received and considered these
    submissions.

[3]

The appellant does not seek costs of the first
    trial, which resulted in a successful appeal to this court, reported at
Pustai
    v. Pustai
, 2014 ONCA 422, 319 O.A.C. 403. In respect of
    the second trial, the appellant seeks costs of $30,000, inclusive of HST and
    disbursements, enforceable by the Family Responsibility Office (FRO) as support
    and payable forthwith. She submits that she was substantially successful at
    trial, that her settlement offer was much more reasonable than the respondents,
    and that the costs she is seeking are both reasonable and proportionate.

[4]

The respondent agrees that no costs should be
    ordered in respect of the first trial. With respect to the second trial, he
    submits that the parties should bear their own costs. He contends that success
    was divided and that the appellant should not be rewarded for her bad faith
    conduct in withholding court-ordered financial disclosure (about her
    employment). He says that the appellants offer to settle contained no element
    of compromise on the termination of support payments. He also argues that the
    amount of costs sought by the appellant is too high, as it approaches full
    recovery of her actual legal costs, which were $36,198.42 plus disbursements of
    $778.30.

[5]

Having considered the parties detailed written
    submissions, and for the following reasons, we order that the appellant is
    entitled to costs of $24,000, inclusive of applicable taxes and disbursements,
    enforceable by FRO as support.

[6]

First, we are satisfied that the appellant was
    the more successful party and is presumptively entitled to her costs, according
    to the
Family Law Rules
, O. Reg. 114/99, r.
    24(1). The primary issue at trial was spousal support. The respondent sought an
    order terminating spousal support as of June 2013. The appellant relied on the
    parties agreement for indefinite spousal support of $3,000 per month. Although
    her argument that support should not be reduced did not prevail, she was
    successful in that her continued entitlement to some support was recognized. In
    fixing the level of support, the court imputed minimum wage level income to the
    appellant and rejected the respondents position that his income had
    significantly decreased.

[7]

Second, there is nothing in the conduct of
    either party in relation to settlement that enhances the appellants costs, or
    that reduces or eliminates her claim to costs. The parties exchanged written
    offers to settle before the second trial. Both offers contained an element of
    compromise. With respect to spousal support, the appellant offered to accept a
    reduced level of support, without termination for life, and the respondent
    offered to continue to pay support, but only until June 30, 2015. Neither party
    beat their offer.

[8]

Third, we reject the respondents argument that
    the appellant engaged in bad faith conduct sufficient to disentitle her to
    costs. With respect to the conduct relied on by the respondent, this court
    noted, at para. 49 of the reasons on the merits, that [w]hile Ms. Pustai was
    at fault for not providing complete financial disclosure from the start of
    these proceedings, this is not a case of egregious non-disclosure. However, the
    appellants failure to provide proper disclosure of her financial circumstances
    and the unexplained increase in her fortunes resulted in the finding that her
    financial circumstances had materially changed, the imputation of an annual
    income to her, and a reduction in her monthly support entitlement.

[9]

Finally, we agree with the respondent that the
    amount sought by the appellant is too high. The costs of the second trial were
    fixed, on consent, at the inclusive amount of $23,068.10 payable by the
    appellant to the respondent. This amount is a useful benchmark to determine reasonable
    and proportionate costs consistent with both parties expectations. We also
    note that the respondent does not challenge the work done or the hourly rates
    reflected in the appellants bill of costs.

[10]

In the circumstances, and having considered the
    parties submissions, we fix the appellants costs in the court below at
    $24,000, inclusive of HST and disbursements. We order that the costs award is
    recoverable as spousal support by FRO.

Alexandra Hoy A.C.J.O.

K. van Rensburg J.A.

G. Pardu J.A.


