ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 05-FL-1041, 05-FL-1041A, and 05-1041-2
DATE: 2012/03/08

BETWEEN:

CHANTAL DE LA SABLONNIERE
Applicant

– and –

PIERRE CASTAGNER
Respondent

Lisa Sharp, for the Applicant

Self-Represented

HEARD: By Written Submissions

decision ON COSTS

Kane J.

[ 1 ] The applicant commenced this application. The respondent brought the matter on to trial.

[ 2 ] As to costs, each party argues that they were successful at trial entitling them to costs. Each party further submits that the results they obtained at trial equal or exceed their written offers of settlement. The respondent further submits that he and the applicant settled this action by each executing minutes of settlement prior to the trial commencing which the applicant thereupon rejected and insisted that the trial proceed.

SUMMARY OF COST CLAIMS

[ 3 ] The respondent seeks costs in the amount of $31,545, consisting of his use of sick day, transitional and vacation credits. Using his salary, he calculates an hourly rate of $41.50. The respondent similarly claims an hourly rate for his partner who assisted him during this trial based on her current salary. He further claims $2,250 as the cost of a consultation fee with a lawyer, the cost of parking to attend court and meals during the trial.

[ 4 ] In the alternative, the respondent submits that there be no costs award to either party.

[ 5 ] The applicant seeks costs in the amount of $56,448, payable forthwith. This claim is limited to her costs commencing September 2010. This later date is chosen as that is when the respondent decided to elect early retirement and when he commenced his application under the above third file to eliminate the interim order to pay spousal support. He opposed paying any spousal support.

[ 6 ] I have had the opportunity to review certain written offers of settlement including those exchanged on the eve of trial. The offers on the eve of trial indicate that the parties were very close to settlement.

SUCCESS OF THE PARTIES

[ 7 ] The Family Law Rules , O. Reg. 114/99 indicate that success of a party at trial is very important as to an award of costs. There is a presumption that a successful party is entitled to costs of the case. R. 24(1).

[ 8 ] A successful party may be deprived of all or part of their costs if they have behaved unreasonably during the case in which case they may be ordered to pay all or part of the unsuccessful party’s costs. R. 24(4).

[ 9 ] If a party has acted in bad faith, the court shall decide costs on a full recovery basis payable immediately. R. 24(8).

[ 10 ] If success is divided between the parties, the court may apportion costs as appropriate. R. 24(6).

[ 11 ] In setting the amount of costs, the Family Law Rules state that the court shall consider:

(a) the importance and complexity of the issues;

(b) the reasonableness or unreasonableness of each party's behaviour in the case;

(c) the lawyers’ hourly rates;

(d) the time expended, including conversations between the lawyer and his or her client, drafting of documents, correspondence, attempts to settle preparation and the length of time in court; and

(e) any other relevant matter. R. 24(11).

[ 12 ] Each party was partially successful in the remedies they sought. The following is a summary of the level of success per issue.

1. ALIENATION

[ 13 ] This court determined that the respondent by his actions over a considerable period of time alienated the two youngest children from their mother. The respondent denied such alienation. Having found alienation by the respondent, this court levied a penalty of $4,000 against him payable to the applicant.

[ 14 ] The respondent argues that the global dollar value of child support payable by the applicant exceeds the gross dollars payable by him as spousal support. While this is true, it does not include the above $4,000 alienation penalty nor does it address the fact that the alienation issue consumed a majority of time during this 10-day trial.

[ 15 ] There are some similarities between a claim for alienation and a determination of defamation in a libel action. Such successful determinations are important to the party seeking them. The penalty, fine or damage award accompanying that determination, unless miniscule, may be of lesser importance to the aggrieved party than the finding of alienation or liability.

[ 16 ] The applicant was clearly successful on this issue. The penalty awarded was not miniscule.

2. SPOUSAL SUPPORT

[ 17 ] The respondent opposed the payment of spousal support retroactive to March, 2011. This court awarded spousal support to the applicant retroactive to October 1, 2009 on a decreasing scale up to and including April, 2017.

[ 18 ] The gross amount of spousal support awarded is $30,800. The net costs to the respondent and the net benefit to the applicant of that gross award are lesser amounts.

[ 19 ] The applicant was successful in imputing income to the respondent but at a lower level.

[ 20 ] The respondent was partially successful in that I imputed $4,000 of additional income to the applicant which she opposed.

[ 21 ] I award spousal support to age 58, or April 1, 2017, rather than to age 65 as requested by the applicant. Commencing in 2011, I awarded her $540 per month rather than $688 as requested.

[ 22 ] I imputed income to the respondent for a shorter period of time and below the $81,700 level argued by the applicant. Income was imputed to the respondent for a one-year period higher than the applicant’s alternative argument that income be imputed at a level of $56,000. The imputed income to the respondent however decreased to $49,000 and $45,000 per year as of April 1, 2012 and March 1, 2013.

[ 23 ] I refused the applicant’s remedy of awarding spousal support at a level equal to $200 higher than any child support payable by her to the respondent.

[ 24 ] Overall, the applicant was successful on this issue as the respondent opposed paying any spousal. That success is diminished however as the applicant was unsuccessful on a number of the points related to that issue.

3. CHILD SUPPORT

[ 25 ] The applicant agreed at the commencement of trial that the respondent’s obligation to pay child support for Arianne should terminate.

[ 26 ] The respondent’s argument that the mother should be ordered to pay one-third of the university tuition for Arianne was not accepted.

[ 27 ] The applicant was unsuccessful in her argument the child support should be calculated on her line 150 income in the amount of $31,000. The applicant’s argument that the conduct of Mr. Castagner had been so outrageous that her spousal support should be increased sufficiently to exceed the amount of child support payable by her was not accepted.

[ 28 ] The respondent's position that the applicant should pay an equal or proportionate share of section 7 expenses was reduced by this court limiting the applicant’s share to one-third of the university tuition for the two youngest children during their first post secondary degree provided they continued to be financially dependent on their parents.

[ 29 ] The obligation to pay child support for the two youngest children was not opposed by the applicant. The issue involved determination as to the appropriate income level of the applicant.

[ 30 ] As stated, the respondent argues that the anticipated amount of child support payable by the applicant to age 21, plus one-third of their post secondary tuition costs are higher than the gross amount payable by him in spousal support. The respondent estimates child support payments over time total approximately $40,000. He estimates one-third of their education costs to be higher than $20,000, making a total of some $60,000. My calculation of that potential liability, including one university or college degree for each child results in a total estimate of $41,000.

[ 31 ] In his offers of settlement, the respondent proposed that the applicant would be relieved of any obligation to pay child support and section 7 expenses in return for her release of any entitlement now or in the future for spousal support. The resulting offset is argued by the respondent as proof that the applicant obtained an outcome below his offers of settlement. That assessment however must include the penalty of $4,000 for alienation and consider the risk that one or two of the youngest children may not continue to remain financially dependent for the full period contemplated under the decision. If one were to assign a risk factor attributable to the children not remaining dependant for the full entitlement period, the comparable totals of child support versus spousal support are much closer thereby challenging the respondent’s claim of success on this issue.

4. RESTRAINING OR NON-COMMUNICATION ORDERS

[ 32 ] Each of the parties was unsuccessful in obtaining such an order. The respondent in fact withdrew his request for a restraining order in the middle of the trial.

5. LEAVE REQUIRED TO COMMENCE PROCEEDINGS

[ 33 ] The applicant was unsuccessful in requesting that the respondent require leave in the future prior to commencing legal proceedings.

6. COUNSELLING ORDER

[ 34 ] The applicant sought an order that the two youngest children participate with her in counselling to counter the alienation by the respondent. The respondent found several excuses prior to trial to not agree to counselling or agreed to it but only after he had once again inflamed the family’s dynamics. The respondent finally agreed to a counselling order after several days of trial. The applicant was successful on this issue.

7. AGGRESSIVE LITIGATION

[ 35 ] The court commented in its decision upon the aggressive manner in which the respondent participated in this litigation. The applicant relies upon that aggressive approach in support of her claim for costs. I have several concerns regarding this argument.

[ 36 ] Litigation and a trial are adversarial in nature. Depending upon the facts, the court must be cautious to not punish a litigant in costs for being adversarial in the litigation.

[ 37 ] There were several instances where the respondent aggressively pursued interim remedies prior to trial. There is a risk when trial judges are asked to award costs of the proceedings including interlocutory or interim orders which contain no costs award. Judges are directed to determine costs entitlement after each step in the case. R. 24(10). The motion judge is in the best position to decide the costs of an interim motion. If costs are not ordered on such motions, there is a real risk to simply consider the costs of the entire proceedings without considering the costs of and costs decisions on interim motions.

[ 38 ] This applicant understandably is very concerned about the manner in which the respondent misrepresented on interim motions that she consented to termination of interim spousal support. The cost consequences of that however were before Justice Roy who declined, without reasons, to award costs to the applicant related to those steps.

[ 39 ] Having found alienation and ordered the respondent to pay a penalty of $4,000, a double penalty would occur if this court were to now punish him in costs for the same conduct.

[ 40 ] The above factors lead this court to conclude that these costs should not be determined on the basis of the respondent’s conduct during this litigation.

8. OFFERS OF SETTLEMENT

[ 41 ] Subject to the court ordering otherwise, an offer by a party under R. 18 entitles the offeror to costs to the date the offer was served and to full recovery of costs thereafter, if:

(a) the offer is made at least seven days before the commencement of the trial;

(b) the offer does not expire and is not withdrawn before the hearing dates;

(c) the offer is not accepted; and

(d) the offeror obtained an order that is as favourable as, or more favourable than the offer. R. 18(14).

[ 42 ] In deciding costs, the court may take into account any written offer to settle including the date the offer was made and its terms even if R. 18(14) does not apply. R. 18(16).

[ 43 ] An offer shall be signed by the offeror and his or her lawyer. R. 18(4).

[ 44 ] An offeror may withdraw an offer by serving a notice of withdrawal at any time before acceptance thereof. R. 18(5).

[ 45 ] The settlement offers disclosed in argument, particularly on the eve of trial, are extremely close. Each of those offers however is silent as to the issue of alienation. The respondent therefore knew at the time those offers were exchanged that the important issue of alienation remained in issue unless a settlement was achieved.

[ 46 ] The parties presented an offer to settle dated May 18, 2011 which appears to be signed by both parties. The applicant signed it on May 18, 2011 but it is not signed by the applicant’s lawyer pursuant to R. 18(4).

[ 47 ] The respondent on May 22, 2011, signed an offer of settlement which slightly alters the wording of the applicant’s May 18, 2011 offer. The respondent's rejection on May 22 of the applicant’s May 18 offer did not prevent him subsequently accepting her May 18 offer unless it was withdrawn. Rule 18(10). I have no evidence of such a withdrawal until May 24, 2011.

[ 48 ] The respondent argues that on May 24, 2011, he signed his acceptance of the applicant’s May 18th offer. He attempted unsuccessfully to effect service on counsel for the applicant late in the afternoon on May 24 and again in the morning of May 25, 2011. Being unable to serve counsel or her office, the respondent then faxed his acceptance of the May 18 th offer to applicant's counsel during the morning on May 25, 2011. He then delivered a copy of such signed document to the courthouse and advised that the action was settled.

[ 49 ] Applicant’s counsel via email notified the respondent at 17:00 hours on May 24, 2011 that the applicant withdrew her May 18 offer and enclosed a new offer signed by the applicant dated May 23, 2011. The respondent argues that he never saw this e-mail from applicant's counsel or the new May 23 offer until after he signed and accepted the applicant's May 18 offer of settlement. Acceptance requires serving an acceptance on the offeror before the offer is withdrawn. R. 18(9).

[ 50 ] The applicant inserted several new terms in her May 23 offer including that the respondent pay $5,000 in legal costs. Under her May 18 offer and his May 22 offer, each of the parties was to pay their own costs.

[ 51 ] It appears from these documents that a settlement was not concluded principally because of a disagreement over a cost issue in the amount of $5,000 which now appears small in comparison.

[ 52 ] No motion was made at the commencement of trial for a final order in accordance with the May 18, 2011 offer. The parties were offered but could not agree to a mid-trial settlement conference. I cannot without argument and evidence now decide whether there was a binding settlement offer in this case.

[ 53 ] What I may consider are the mutual offers on the eve of trial which are very close. As stated however, none of the offers deal with the subject of alienation which consumed a considerable portion of this trial. In the result, neither party obtained a trial result equal to or exceeding the proposals in their offers of settlement.

[ 54 ] Independent of the applicant's success on the issue of alienation, the success by each party on the other issues is generally divided. But for the alienation issue, I would not award costs because of this shared success.

[ 55 ] In conclusion, the applicant shall be entitled to some costs regarding the alienation issue. Based on the value of time docketed by applicant's counsel during the 10 days of trial, I fix costs to the applicant payable by the respondent in the amount of $7,500, inclusive of disbursements and tax. The respondent shall have until June 15, 2012 to pay such costs.

Kane J.

Released: March 8, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: CHANTAL DE LA SABLONNIERE Applicant PIERRE CASTAGNER Respondent decision on costs Kane J.

Released: March 8, 2012