ONTARIO SUPERIOR COURT OF JUSTICE

Court File No.: FC-09-1626
Date: 2012/02/27

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

JEAN-BRUNO CLOUTIER Applicant – and – LISA ANNE FRANCIS Respondent

Marco Morin, for the Applicant and self-represented
Diana Carr, for the Respondent

HEARD: By Written Submissions

DECISION ON COSTS

m. Linhares de Sousa J.

[ 1 ] The parties presented a number of issues for decision before this Court. A number of them were minor issues that should have been decided amicably between the parties and should never have remained outstanding at the trial, such as the question of what amount of money is due to Isabelle by both parties. By the time of the trial the issue of child support was more or less resolved between the parties but for the question of whom should receive the child support payments. There was no question that Ms. Francis was successful on that issue. From copies of correspondence received from counsel, it appears, happily, that the parties have resolved the question of ongoing child support while Isabelle pursues her University education. These issues and a few other minor ones took up very little of the trial time.

[ 2 ] The main issues for trial were the questions of unjust enrichment and spousal support. Most of the trial was taken up with these two issues. The questions of unjust enrichment and spousal support were and are two distinct issues. However, on the facts of this case and in the final decision, the two issues were found to be related. As I found in my reasons, the right to spousal support existed until the payment of the unjust enrichment, so found on the facts of this case, due to Ms. Francis by Mr. Cloutier, was resolved and paid. I understand from the lawyers’ correspondence that this too has now been resolved.

[ 3 ] With respect to the main legal issue of whether a claim for unjust enrichment had merit or not, there is no question that Ms. Francis was the successful party. Mr. Cloutier’s position throughout this litigation concerning that issue was that such a claim “n’est pas fondée en fait et en droit”. On the question of spousal support, Ms. Francis was also successful on that issue with respect to the question of entitlement to spousal support. As my Reasons for Decision found, the questions of quantum and duration of spousal support were determined by the quantum and payment of the unjust enrichment claim. Pursuant to Rule 24(1) Ms. Francis is presumptively entitled to her costs on these two questions unless there is some reason why the Court should exercise its discretion to not award her costs. Unreasonable behaviour by a successful party is one such reason provided for in Rule 24(4) and (5).

[ 4 ] The question of bad faith, as provided for in Rule 24(8) has not been raised by either party and would not appear to be supported by the evidence in this case. While both parties harboured a serious difference of opinion of each other’s contribution to their long relationship, both parties acted in good faith on their beliefs and on what they considered to be in the best interests of their daughter.

[ 5 ] Pursuant to Rule 24(6), the Court may “apportion costs as appropriate” where success is divided. It cannot be disputed that Ms. Francis was successful on the legal issues of entitlement to unjust enrichment and spousal support. Nonetheless, I have to conclude that success was divided between the parties as to the question of the appropriate quantum of both the unjust enrichment award and the spousal support award which was found by the Court on the facts of this case. As I indicated in my Reasons for Decision, based on the facts, the amount claimed by Ms. Francis was excessive. The amount recognized at trial by Mr. Cloutier was zero and hence deficient. This amount was raised to $7,500 in Mr. Cloutier’s offer to settle as a “somme forfaitaire”, dated February 15, 2011, but can be considered a negligible improvement in light of the final award in this matter.

[ 6 ] Both parties in the case accuse the other of unreasonable behaviour, particularly as it applies to the question of disclosure leading up to the trial. There are mutual allegations of no disclosure and slow disclosure. Based on all of the material before me, I am not prepared to conclude that one party in this case acted more unreasonably than the other with respect to this issue. I find it instructive that on the motion regarding disclosure, which was brought before him on November 19, 2010, Mr. Justice Kane made an order against both parties with respect to disclosure and made “no order as to costs for either party”.

[ 7 ] Pursuant to Rule 24(5) the question of unreasonable behaviour is also determined by examining any offers to settle made by the parties. Both parties presented offers to settle prior to the hearing of this matter. None of the offers made come within the mandatory application of Rule 18(14). Nonetheless, all of the offers made by the parties may be examined by the Court in the consideration of their behaviour during the litigation.

[ 8 ] Ms. Francis presented Mr. Cloutier with two formal offers to settle. The first was made very early on into the litigation, namely June 4, 2010. That offer essentially treated the couple as a legally married couple and claimed all of the rights of a married couple found in provincial legislation. If accepted it would have granted to Ms. Francis substantially more benefits than she received at trial. Ms. Francis’ second offer to settle, dated February 15, 2011 included much more moderate benefits compared to the first offer but in the final analysis still included an unjust enrichment award that was $39,000 more than she was granted at trial. Ms. Francis waived her claim to spousal support in that last formal offer.

[ 9 ] Mr. Cloutier’s only formal offer was dated February 15, 2011. He refused to acknowledge any claim to unjust enrichment and spousal support, in fact and in law. He did offer a direct payment to Ms. Francis of a “somme forfaitaire” of $7,500, an amount $49,500, less than Ms. Francis was awarded at trial for the unjust enrichment claim. This was a substantial shortfall grounded, I think, in Mr. Cloutier’s inability to concede the legal merits of Ms. Francis’ unjust enrichment and spousal support claims.

[ 10 ] Rule 24(11) sets out the other factors which this Court must consider in considering the question of costs. With respect to Rule 24(11)(a), it is acknowledged that this case presented important, complex and difficult issues. The trial in this matter commenced only days after the Supreme Court of Canada released its guiding and seminal decision in Kerr v. Baranow , [2011] 1 S.C.R. 10 . When this litigation commenced the parties did not have the legal guidance of that decision. They certainly did by the end of the trial. In fairness to the parties, my decision was one of the first decisions to be made under the guidance of Kerr v. Baranow, supra . My decision was based on a detailed examination of the long 18 year relationship between the parties through the prism of the principles enunciated by the Supreme Court of Canada in Kerr v. Baranow , supra . Consequently, a certain flexibility must be accorded to both parties for making the offers to settle which they made.

[ 11 ] With respect to Rule 24(11)(b), I have already addressed the question of the reasonableness of the parties’ behaviour in this case.

[ 12 ] With respect to Rule 24(11)(c), Mr. Cloutier has not presented a bill of costs. As Mr. Morin pointed out in his written submissions, he is a personal friend of Mr. Cloutier and represented Mr. Cloutier in this matter without legal fees. Mr. Cloutier, being a lawyer by profession, using a significant number of hours, prepared on his own for the trial where he could. He appropriately used the assistance of Mr. Morin to directly question Ms. Francis at trial. I conclude from this that at the end of this trial Mr. Cloutier has no substantial legal fees to pay. He did incur some expert fees and some disbursements in the approximate amount of $2,800. It is Mr. Cloutier’s position that the parties should bear their own costs and that there ought not to be an order for costs.

[ 13 ] Ms. Francis has filed her lawyer’s bill of costs that totals $54,168.49 inclusive of the costs submissions and disbursements. In addition, Ms. Francis incurred expert expenses of $2,075. Ms. Francis also incurred other expenses to attend the trial from her home in Edmonton in the approximate amount of $2,000. In view of the experience of counsel, the legal issues raised in this matter, the type of litigation and the length of the trial, I cannot conclude that Ms. Carr’s bill of costs is unreasonable. Ms. Francis is seeking $40,000 in costs.

[ 14 ] Pursuant to Rule 24(11)(f), the Court may consider “any other relevant matter”, which may of course include a consideration of the parties’ respective abilities to pay costs or how an award of costs may affect the parties from carrying out their parental responsibilities. The latter consideration is not really relevant to the facts of this case. Both parties earn a reasonable income and are able to pay their own legal costs and the other expenses of this litigation. There is no question, however, that Ms. Francis will be hit harder with the financial impact of this litigation than Mr. Cloutier.

[ 15 ] For all of the reasons mentioned above, I come to the conclusion that Ms. Francis ought to be awarded some contribution to her costs of this litigation. She was successful on the main legal issues of this case although she enjoyed divided success with Mr. Cloutier on the question of the quantum of that success. I cannot find that there is anything in Ms. Francis’ behaviour throughout this litigation, as compared to the behaviour of Mr. Cloutier that, would deprive her of the presumptive entitlement to costs. At different stages of the litigation Ms. Francis made offers to settle in a genuine attempt to settle this matter. While clearly not enough movement, she did make a substantial shift in her position on the question of quantum of award between her two offers to settle in an attempt to avoid a trial. In the face of all of this and given the unequal financial consequences of this litigation on Ms. Francis, it would, in my view, be unfair to Ms. Francis to deprive her of any costs. Finally, the flexibility which must be accorded to both parties because of the importance, complexity and difficulty of the issues raised in this case and the Supreme Court of Canada’s recent and new formulation of the legal principles relating to unjust enrichment does not necessarily lead one to the conclusion that there should be no order as to costs, in all of the circumstances of this case.

[ 16 ] Consequently, I order Mr. Cloutier to pay Ms. Francis $20,000 as a contribution to her costs, payable forthwith.

M. Linhares de Sousa J.

Released: February 27, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JEAN-BRUNO CLOUTIER Applicant – and – LISA ANNE FRANCIS Respondent DECISION ON COSTS M. Linhares de Sousa J.

Released: February 27, 2012