



COURT OF APPEAL FOR ONTARIO

CITATION: Dodman v. Preston, 2016 ONCA 59

DATE: 20160120

DOCKET: C59859

Juriansz, Hourigan and Brown JJ.A.

BETWEEN

Janis Arline Dodman (formerly Preston)

Applicant (Respondent)

and

Mitchell Lewis Preston

Respondent (Appellant)

Timothy R. Pedwell, for the appellant

Kiran Sah, for the respondent

Heard:  January 7, 2016

On appeal from the judgment of Justice Robert B. Reid of
    the Superior Court of Justice, dated December 4, 2014.

ENDORSEMENT

[1]

This is an appeal from a judgment following a six-day family law trial.
    The issues on appeal are narrow. First, the appellant submits that the trial
    judge erred in his order regarding how an equalization payment owing to him by
    the respondent should be funded. Second, he submits that this error impacted
    the trial judges decision on costs and the trial judge erred in awarding the
    respondent costs in the circumstances.

[2]

Neither party takes issue with the trial judges calculation of the
    equalization payment owing to the appellant, being $183,911.76. However, the appellant
    submits the trial judge erred when he ordered as follows, at para. 94:

Therefore, there will be an order that from the sale proceeds
    presently held in trust which total $277,980.48, the respondent is to receive
    $183,911.76, with the balance of $94,068.72 being payable to the applicant.

[3]

The sale proceeds being referred to are the proceeds from the sale of
    the matrimonial home. The appellant argues that the result of this order is
    that his portion of the proceeds is being utilized to partially fund the
    equalization payment. The appellants position is that that respondent is
    entitled to utilize up to one half of the sale proceeds to pay the equalization
    payment but any amount owing in excess of that sum is payable by the respondent
    from her own funds.

[4]

We agree with the appellant. Although the respondent was the sole
    registered owner of the matrimonial home, the parties proceeded on the basis
    that they each had an equal entitlement to the proceeds of the sale of the
    property. Therefore, the funds held in trust are jointly owned property and the
    respondent has no right to utilize the appellants share of the funds to cover
    any portion of the equalization payment owing to the appellant. The trial judge
    erred in ruling to the contrary and that part of his order must be set aside.

[5]

With respect to the issue of costs, the appellant submits that, because
    of the error with respect to the funding of the equalization payment, the trial
    judge was unable to appreciate the reasonableness of his offer to settle and
    erred in awarding the respondent costs.

[6]

We would not give effect to this argument. The trial dealt with a number
    of issues in addition to the equalization payment, including: custody and
    access, spousal support, child support, division of property, and occupation
    rent. In his costs endorsement, the trial judge carefully reviewed the results
    of the trial and the relative success of both parties. We are not persuaded
    that the trial judge erred in his assessment of costs or that the error with
    respect to the funding of the equalization payment materially affected his costs
    decision.

[7]

The appeal is granted to the extent that the trial judges direction
    regarding how the equalization payment is to be funded is set aside. The appeal
    regarding the costs award is dismissed.

[8]

With respect to the costs of the appeal, the appellant is seeking
    approximately $39,000 on substantial indemnity scale and, in the alternative,
    approximately $26,000 on a partial indemnity scale. The appellant as the more
    successful party is entitled to his costs. There is no basis to award costs on
    the higher scale and we agree with the submission of the respondent that
    $26,000 is far in excess of what is reasonable for an appeal of this nature. We
    are of the view that an appropriate costs award is $10,000. To reflect the
    mixed success on the appeal, we are reducing this sum by $2,500. We therefore
    order that the respondent pay the appellant $7,500 for the costs of the appeal,
    inclusive of fees, disbursements and applicable taxes.

R.G. Juriansz J.A.

C.W. Hourigan J.A.

David Brown J.A.


