COURT FILE NO.: 05-FD-304485FIS
DATE: 20120731
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LISA LUDMER, Applicant
A N D:
BRIAN LUDMER, Respondent
BEFORE: MESBUR J.
COUNSEL: Deborah MacKenzie for the Applicant
Gary Joseph for the Respondent
HEARD: July 5, 2012
E N D O R S E M E N T
Nature of the motion:
[1] The applicant wife moves for an order for $300,000 in interim costs, or alternatively, for sale of the matrimonial home, or in the further alternative, an order permitting her to place a $300,000 mortgage on the matrimonial home in order to raise funds to continue this litigation.
Some history:
[2] This litigation has a long and tortured history. The parties separated in 2005 after a twenty year marriage. For some years, children’s issues consumed the parties. They were finally resolved in 2008. What now remain are the financial issues. Central to these financial issues are the validity of the marriage contract the parties signed about a year after their marriage, the valuation of the husband’s interest in a numbered company established by his father as part of a family trust and estate freeze, and the husband’s ability to look to that numbered company as part of his ability to pay support. I will explain the history of the trust and the establishment of the numbered company in more detail below.
[3] The case initially came on for trial in 2008 before Conway J. At that time, the husband had not disclosed the particulars of the value of numbered company in which he owns all the common shares. The husband took the position this information was entirely under his father, Irving Ludmer’s, control. Irving Ludmer holds all the preferred voting shares of this numbered company.
[4] The wife took the position she would invite the court to draw an adverse inference from husband’s failure to provide this financial disclosure. At the same time, she delivered a summons to witness to the father, requiring he bring various types of documents with him to the trial.
[5] Because the father resides in the Province of Quebec, it was necessary for the summons to be validated under Quebec’s Special Procedures Act.[^1] The trial was therefore adjourned, to permit this process to run its course. Its course was to prove long.
[6] First, the father opposed the summons in the Quebec Superior Court. He lost. He then launched an appeal to the Quebec Court of Appeal. He lost again. Finally, he sought leave to appeal that decision to the Supreme Court of Canada. Leave was denied.
[7] The result of those proceedings was that the father was required to produce the information, and was not afforded any sealing order over his productions. These issues were left to be determined by the trial judge when the case is finally tried here in Ontario.
[8] The parties and the father then agreed that the father would produce the necessary documents prior to trial in order to make the trial more efficient. The issue that consumed them then was one of confidentiality over these productions. Eventually, that issue was resolved by order of Perkins J, who echoed the decision of the Quebec Court of Appeal, denying the father a sealing order, but requiring the wife to sign a confidentiality agreement before receiving any of the documents from the father. She has done so.
[9] The husband has now delivered four expert reports concerning his interest in the numbered company. The wife takes the position she must now hire her own expert to respond to these reports. She says the expert will charge somewhere between $60,000 to $80,000 to do so, without performing any forensic services, or attending at court. These latter services would be at additional cost. The wife says she does not have the funds to pay for her expert. She also says she has no money to pay her lawyers, so that they will continue to represent her at trial. She owes them more than $300,000 in unbilled work in process. She also owes her previous lawyers and Quebec counsel a total of more than $100,000. The wife therefore seeks an order that the husband advance $300,000 to her by way of interim fees or costs in order to “level the playing field” so that her lawyers will remain on the record.
[10] In the alternative, she suggests the matrimonial home, registered in her name, should be sold. From this, I infer she seeks the entire net proceeds of sale. The house is worth somewhere between $1 million to $1.2 million and has a secured line of credit registered against it for about $300,000. The husband has been living in the matrimonial home since the separation in 2005. The children spend about half their time with him. The husband also operates his law practice out of the house.
[11] In the further alternative, wife seeks an order that she be permitted to place a $300,000 mortgage on the matrimonial home so that she can generate money to pay her counsel and retain an expert.
[12] The husband resists the wife’s motion for a whole host of reasons. They can be readily summarized under two broad rubrics. First, he points to the fact that in early summer of 2008 Himel J dismissed the wife’s motion for sale of the home or alternatively an order permitting her to encumber it to pay legal fees. Shortly after, Pardu J dismissed the wife’s motion seeking interim costs of $200,000. The husband takes the position the issues on this motion are therefore res judicata or that issue estoppel applies to prevent what he characterizes as an abuse of the court’s process.
[13] Second he says that if res judicata does not apply, and the wife’s motion is dealt with on the merits, the wife has failed to meet her evidentiary burden to meet the minimum fact threshold for the court to make the orders she seeks.
Discussion:
The law generally
[14] The law concerning orders for interim disbursements or interim fees and costs in family law cases has evolved over the years. Here, the relevant rule is rule 24(12) of the Family Law Rules, which deals with orders for interim fees and costs in family law cases. It simply says: “The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees.” One of the primary themes of the case law is that orders may be required in order to “level the playing field” between the litigants.
[15] The jurisprudence surrounding rule 24(12) was neatly summarized by Rodgers J in Stuart v. Stuart [^2] and has been followed in many cases since then. Simply put, when considering a request for interim disbursements under the Family Law Rules, it is no longer necessary to find exceptional circumstances in order to make an order. The order is a discretionary one. In exercising discretion under the rule, the court must ensure the primary objective of fairness under the Family Law Rules is met.
[16] As the court said in Stuart, [^3]
The discretion should be exercised to ensure all parties can equally provide or test disclosure, make or consider offers or possible [sic] go to trial. Simply described the award should be made to level the playing field.
An order under section [sic] 24(12) should not immunise a party from cost awards. The order is to allow the case to proceed fairly and should not be such that a party feels a license to litigate. …
The claimant must clearly demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available …
The claimant must demonstrate that he or she is incapable of funding the requested amounts.
The claim or claims being advance in the case must be meritorious as far as can be determined on the balance of probabilities at the time of the request for disbursements.
[17] Thus, the wife’s evidentiary burden includes establishing the necessity and reasonableness of the fees and disbursements, given the nature of the case and the funds available. She must also show she is incapable of funding the fees and disbursements herself. Last, she must show that her claims are meritorious.
[18] Before I address the wife’s evidentiary burden, I must first decide whether her motion is barred because of principles of res judicata or issue estoppel.
Res judicata/issue estoppel
[19] This is the third time the wife has moved for interim costs or sale of the matrimonial home. The first motion was before Himel J in 2008. That motion was for the sale of the matrimonial home or alternatively, for permission to mortgage it to the extent of $200,000 so that the wife could pay her counsel and proceed to trial. At that time, the trial was fixed for September 29, 2008. Himel J declined grant leave to the wife to move for the sale or encumbrance. She held:
I am of the view that leave should not be granted to bring a motion compelling the sale of the house on what is essentially the eve of trial. The very issues that will be determined at trial would have to be argued at a motion for a court-ordered sale. The timing of such a motion is not appropriate in the circumstances of this case.
She also noted, however, that the wife might be disposed to move for interim costs or disbursements. She said:
However, I am mindful of the argument of the applicant concerning her financial ability and her need for immediate funds for her representation at trial. I also note from the materials filed the financial position of the respondent. There is authority for the court to order interim disbursements pending trial where the applicant can show that he or she cannot fund the action without such an award: see Graat v. Graat (1982), 1982 4772 (ON SC), 29 R.F.L. (2d) 312 (Ont. Master). Rule 24(12) of the Family Law Rules also provides:
The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer's fees.
While it may not have been appropriate to bring a motion on the eve of trial for an order compelling the sale of a home in circumstances such as these, a motion for interim disbursements or expenses may be made. I do not offer any opinion on whether such an order should be granted as the parties will have to make appropriate submissions on this if the applicant wishes to proceed with the motion. I do say, however, that a prima facie case for such relief has been made out.
[20] The wife followed up on the suggestion of a motion for interim costs. That motion came on before Pardu J on August 26, 2008. Pardu J denied the motion on a number of bases. First, she was concerned with the wife’s delay in bringing her motion. She noted that the trial had begun in February of 2008. The wife’s counsel was prepared to conduct the trial at that time without further funding. She found nothing much had changed since then.
[21] Second, Pardu J. noted that the wife’s costs to that date and projected to the end of trial were “enormous”. She worried that “payment of advance costs would amount to a licence to litigate without regard to the need for proportionality between the issues at stake and the costs incurred, and without regard to the likelihood of success.” [^4]
[22] Last, after analyzing the issues in the case, Pardu J. was not persuaded the wife had shown that she has a meritorious claim. In this regard, she reviewed the husband’s argument that the wife will owe him an equalization payment, and if the order were granted would leave her without resources to pay any judgment. Pardu J also noted that the wife had not specified the basis on which she challenges the contract’s validity, and thus she had no way to assess her likelihood of success. Pardu J pointed out that the wife’s lawyer had advised her not to sign the marriage contract, and she had acknowledged this advice in writing, confirming that she was freely and voluntarily waiving any claim then or in the future to any increase in the value of any of the assets the husband was bringing into the marriage. Those assets, were of course, primarily the husband’s interest as a beneficiary in the Ludmer Children Trust.
[23] More recently, the wife moved before Czutrin J for leave to move again for interim fees and disbursements. He permitted the wife to bring the motion, provided she produced a better evidentiary record to support her motion. He specifically left open the issue of whether res judicata applied.
[24] I am not persuaded this is a case where res judicata or issue estoppel apply. The court has a residual stake in the manner in which litigation is conducted, founded on the court’s inherent power to control its own process. This is particularly so in family law cases, which are governed by the Family Law Rules. The primary rule is rule 2(2) which provides that the fundamental purpose of the rules is to deal with cases justly. Part of this mandate requires the court to oversee and maintain balance and fairness between the parties. This, of course, includes, where necessary, “levelling the playing field” by requiring one party to provide funding to the other to continue the litigation. It is against this general framework I consider the issues on this motion, including the issue of res judicata.
[25] When the court dismissed the wife’s motion for sale or it did so for a number of clearly articulated reasons related to the facts in existence at that time. The same holds true for the motion for interim costs. Each motion was dismissed for a number of specific reasons, based on the particular legal landscape of this case at that time. The original motions were brought and dismissed nearly four years ago. Much has happened in the case since then. The question is whether intervening events have changed the legal landscape sufficiently to support the wife’s motions. In the particular circumstances of this case, where similar motions have already been denied, it seems to me the wife has a higher burden to show the necessary factual foundation to support her motions. She is not precluded from bringing the motions; she must meet the higher burden I have articulated.
Sale or encumbrance of the matrimonial home
[26] The essence of the wife’s position is that she is the sole registered owner of the matrimonial home, it therefore belongs to her, and she should be permitted to sell it in order to access her equity in it. She puts the value of the property at about $1.2 million, while the husband says it is worth somewhat less than that. The house has a $301,000 line of credit secured against it. There is no other mortgage.
[27] The husband lives in the matrimonial home, and conducts his law practice from it. The parties’ two children spend half their time with each parent. Thus, the children live in the matrimonial home about half time.
[28] If it were clear that the wife will ultimately be declared the beneficial owner of the matrimonial home, and if it were clear the husband will owe the wife an equalization payment, then I would have little difficulty in granting the wife’s request to access her equity in the property to fund the litigation. Neither, however, is clear.
[29] The husband takes the position that he is the beneficial owner of 80% of the home because he can trace the funds that purchased it from money he received from the family trust. If the marriage contract is upheld, the husband’s interest in the matrimonial home will be excluded from the calculation of his net family property, reducing it to zero. Under those circumstances, the husband calculates the wife would owe him an equalization payment of $200,000, and would only have a 20% interest in the home to pay it from, her other assets having been depleted to fund this lawsuit. A 20% interest in the matrimonial home is worth only about $165,000 or so. Granting the wife a mortgage of $300,000 would eat up not only her own equity in the property, but potentially a portion of the husband’s as well, leaving nothing with which she could repay him and meet her equalization obligations.
[30] Even if the marriage contract is not upheld, the husband has a reasonable argument that he has a beneficial interest in the property because of his significant contributions to its acquisition. Under that scenario, the wife would have only a 20% interest in the home. The net equity in the house is somewhere around $825,000 if the wife’s estimate of its value is correct. If she has only a 20% interest in the home, that interest is worth only $165,000, and is insufficient to support her claim to a mortgage of $300,000 on the property.
[31] As to a sale of the matrimonial home, the husband has been living there since the parties separated more than seven years ago. The children reside with him half the time. He operates his law practice from the home. The trial is now set for October of this year. Even if I were to exercise my discretion and order the sale of the home, the evidence is insufficient for me to determine what, if any part, of the proceeds should be paid out to either party. If the property were sold, I would require all the proceeds to be held in trust pending the trial of the action where all the property issues will be decided. I assume that is not what the wife wants.
[32] The issues surrounding the matrimonial home are factually complex and require an adjudication of the fundamental issues at trial in order to determine ownership of the matrimonial home. I echo the comments of Himel J four years ago that the very issues that need to be determined regarding encumbrance or sale of the matrimonial home are the issues that must be determined at trial. I am not satisfied the wife has met the evidentiary onus to support this relief. I decline to exercise my discretion to permit either the sale or encumbrance of the home pending trial. To do so would shift the financial burden and risk of the litigation to the husband, without the wife persuading me that her position regarding the home has a real chance of success.
Interim costs or disbursements
[33] In dismissing the wife’s claim for interim costs, Pardu J found the wife’s case was not meritorious. The wife did not appeal. As I have said, while I do not consider this a case of res judicata, I give Pardu J’s reasons significant deference, and must consider whether there have been sufficient changes since then to militate in favour of a different result now.
[34] In addressing these issues, I will review the wife’s evidentiary burdens. These include showing her claim is now meritorious, showing she is unable to fund the litigation, showing the husband has the resources to pay, and showing the fees and disbursements are necessary and reasonable for her to pursue her claims.
Has the wife now shown her claim is meritorious?
[35] Has anything changed since Pardu J dismissed the wife’s claims for interim disbursements? Put another way, has the wife now established the necessary evidentiary framework to show, on the balance of probabilities, that her claim is meritorious? The husband suggests that instead of the wife marshalling new evidence to support the merit of her case, his case has become stronger, and the wife’s weaker over the last four years. He therefore says there is even less reason to grant the wife’s request now than there was on her motion before Pardu J. I agree.
[36] The primary issues in this case revolve around the value of the husband’s interest in the family trust/corporation established in the Province of Quebec and the validity of the parties’ marriage contract.
[37] At the time the parties married, the husband was a beneficiary of a trust Dame Fanny Ludmer had established in the Province of Quebec in December of 1971 for the benefit of the Ludmer Children, namely the husband and his two siblings. A year after the parties’ marriage, the parties entered into a marriage contract in 1986 that excluded from the husband’s net family property his interest in the trust, and any property into which trust property could be traced.
[38] In November of 1992 the trust assets together with accrued gains were transferred to 2864878 Canada Inc. (2864). The Trust received the common and preferred voting shares of 2864 in exchange for the transfer of the assets into the corporation. In 1998 the Trust transferred the common shares of 2864 to its three beneficiaries by way of a transfer from 2684 to distinct corporations for each of the three beneficiaries. In the case of the husband, that corporation is 3488055 Canada Inc. (3488). Although the husband owns the common shares of 3488, they carry no voting rights. The husband’s father, Irving Ludmer, controls 3488 through the voting preference shares. He is the sole owner of those shares.
[39] The husband has obtained a legal opinion from Jeffrey A. Talpis, a professor of law at the University of Montreal in which he opines, among other things, that at the time of the parties’ marriage and at the time they executed their marriage contract, under the law of the Province of Quebec, Brian Ludmer did not have a proprietary interest in the trust property. He goes further and states that whether the Civil law of Lower Canada or the Civil Code of Quebec applies, Brian Ludmer did not have a proprietary interest in the trust property.[^5]
[40] Because of this legal opinion, the husband takes the position that since he had and has no proprietary interest in the trust property its value does not form part of his net family property as a matter of Quebec law, which governs the trust.
[41] The trust itself has a provision that states:[^6]
THAT the Trust Property in capital and income (as well as all property acquired in replacement thereof or representing the same or derived therefrom)shall in no event and under no circumstances fall into or form part of any community property which may at any time subsist between any beneficiary and his or her consort but on the contrary shall remain the private and separate property of the Beneficiary hereunder free from the control of his or her consort, and shall be paid to the Beneficiary upon his or her own separate receipt.
[42] The husband has obtained another legal opinion concerning the effect of this provision. Sylvain Lussier, Ad.E. opines that “it has always been recognized by the Quebec legislator that property acquired by gift or succession does not fall into regimes of community of property or partnership of acquests and that provisions providing for their exclusion from such regimes are valid and enforceable.”[^7]
[43] Mr. Lussier reviews in detail the law of trusts in Quebec, as well as the conflict of law rules regarding trusts in Quebec. He concludes: “Given the information we have been provided regarding the location of the Ludmer Children Trust, the domicile of the trustees and the administration thereof, we have no hesitation in determining that the laws of Quebec under the CCQ [Civil Code of Quebec] govern the validity, the administration and the rights conferred by the trust.”^8
[44] Relying on these two reports, the husband takes the position that it is abundantly clear that he has no proprietary interest in the trust/3488 assets, and even if he did, this property would be excluded from his net family property by virtue of both the law of Quebec and the marriage contract.
[45] The husband has also obtained valuations of the trust property at the date of marriage and date of separation. He says these valuations confirm the values that he disclosed as part of the disclosure appended to the marriage contract. He says that these valuations give credence to his position that there was no misrepresentation concerning disclosure at the time of the marriage contract, and therefore no legal basis upon which the wife can attack the contract’s validity. In that regard, I note the wife has not articulated with any greater particularity the basis on which she attacks the marriage contract’s validity. In that respect, nothing has changed since the motion before Pardu J.
[46] These opinions and valuations do support the husband’s position. The wife has yet to commission any contrary expert reports, although she has had six months to do so.
[47] Assuming, without deciding, that the wife is correct the marriage contract should be set aside, accepting the wife’s position that she is the sole beneficial owner of the matrimonial home, and accepting the expert evidence concerning Quebec law, then the husband’s net family property would not include his interest in the trust at all, either as a deduction at the date of marriage, or as an asset at the date of separation. On this scenario, the husband’s net family property would comprise various investments and bank accounts and monies owing to him from his previous law partnerships. Offset against the value of these assets are significant debts. Using a net family property statement prepared by the wife in 2008, the husband’s net family property would be just over $357,000.
[48] The wife’s financial statement sworn in April of this year values her net family property at $819,515.84. In coming to this value, she includes the entire matrimonial home as her asset. On the scenario set out above, and accepting the wife’s calculation of her own net family property, she would owe the husband an equalization payment of $231,257.
[49] If, however, as the husband argues, he is the beneficial owner of 80% of the matrimonial home, by way of tracing funds from the trust into the property, then the picture changes dramatically. The wife’s interest in the matrimonial home would be worth far less. If it is found that she is not entitled to costs, then the husband faces a significant risk in recovering any advance of costs and disbursements, since the matrimonial home is the only asset in which the wife currently has any interest.
[50] I am not satisfied the wife has provided any additional evidence to show her case has more merit now than when she argued the interim costs issue before Pardu J in 2008.
The wife’s ability to fund the litigation and the husband’s ability to pay
[51] I have no doubt the wife has expended all her capital (apart from the matrimonial home) on this litigation, and has gone into significant debt to pay legal expenses. The legal fees in this case can only be characterized as staggering. I have no doubt the wife has no ability to fund the litigation further.
[52] Although the wife has established her own impecuniosity to support her motion, she has not persuaded me that the husband has the means to make an advance of costs at the level she seeks. This, of course, is part of the wife’s burden on a motion such as this.
[53] According to his financial statement sworn May 22, 2012, the husband has bank accounts, savings and securities that currently total just over $307,000. Over $200,000 of this amount is in RRSPs which carry with them significant tax consequences if they were to be liquidated.
[54] The husband’s financial statement shows the wife currently owing him $92,000. Whether she owes him this money or not, this account receivable is hardly money he could access to fund an advance costs order. The husband also shows current debts of over $500,000, including the line of credit on the matrimonial home, costs of disposition on the matrimonial home, accrued tax liability on his RRSPs and personal loans from family members.
[55] The husband has no ability to access funds from the trust/3488. As the Quebec Court of Appeal put it, when Irving Ludmer established 3488055 Canada Inc. for the husband, Irving Ludmer subscribed to the voting preferred shares of it in order to retain complete control of the corporation. The Court noted the following:
Brian Ludmer, however, is not an officer, director or employee of 3488, and, consistent with the foregoing, he receives no salary or dividends from 3488. Whenever he is required to sign shareholders’ resolutions, he is presented only with the signature page. He has thus always been unaware of the activities and financial position of 3488...
It is also clear that Irving Ludmer could not be compelled to make money available to Brian Ludmer from 3488, directly or indirectly...[^9]
[56] It seems to me the wife has failed to show that the husband has any ability to fund the order she seeks. When one speaks of “levelling the playing field”, the moving party must surely bear the burden of showing a significant imbalance in the resources each party has. Here, both parties have depleted capital to the extent of about $300,000 and have incurred significant loans to fund the litigation. While Mr. Ludmer still has some savings and RRSPs remaining, the disparity between him and his wife is not so great as to have me conclude the playing field is sufficiently uneven as to require “levelling”. The fact the husband has a wealthy father is insufficient for me to conclude the husband has the ability to pay an order for advance fees. Irving Ludmer himself incurred significant legal fees fighting the summons to witness. He paid those fees out of 3488. Clearly, he controls the money there, not the husband.
Funding the expert
[57] On the issue of her claim for funding for her expert, the wife also fails to meet her evidentiary burden. She has simply produced a letter dated April 23, 2012[^10] from the proposed expert, Mr. Ranot, a chartered business valuator, who says:
You have asked us to provide you with our preliminary fee estimate to prepare the following:
a) A comprehensive valuation report provided our opinion of the net value of Mr. Brian Ludmer’s (“Brian”) interests in the Ludmer Children Trust, Irving Ludmer & Associates Inc., certain marketable securities and other assets as at June 9 and December 31, 1985 and June 13, 1986;
b) A comprehensive valuation report providing our opinion of Brian’s net interests in 3488055 Canada Inc. as at January 12, 2005 and July 31, 2010; and;
c) A report calculating Brian’s income for the Child Support Guidelines (“the Guidelines”) from 2005 to 2011.
Brian’s financial affairs are complex and will require a significant amount of analysis and review...
We estimate our fees to complete the reports indicated to be in the range of $60,000 to $80,000 plus HST excluding appraisals and other disbursements.
This fee estimate does not include the amounts required for the forensic procedures. In any forensic assignment, it is extremely difficult to predict with accuracy a fee estimate.
We emphasize that the fees as quoted above are estimates only and our actual fees will be based on time spent and disbursements incurred. We enclose our fee letter[^11]setting out our standard hourly rates...
Fees for attendances at and preparation for settlement meetings, mediations, pre-trials and trials would be in addition to these fees.
If you require any further information of explanation, please do not hesitate to contact the undersigned.
[58] I have no evidence of the wife requesting any further information or explanation from Mr. Ranot about his proposed fees, although she has had months to do so. Mr. Ranot does not outline with any particularity how much time he expects the engagement to require, why it requires that time, who will be performing the bulk of the work, and why. Apparently, the husband has spent about $140,000 in commissioning the four reports he has produced. I have no real evidence of why a critique of those reports would cost as much as Mr. Ranot suggests, nor do I know how much the income analysis portion of the assignment might cost. The wife bears the onus of showing what is necessary to proceed to trial, what it will likely cost, and why. She has failed to do this.
The claim for interim costs of $300,000 itself
[59] The wife’s evidence concerning her claim for interim costs is similarly deficient. She says she struggles on a day to day basis to meet her basic expenses. She says she has no further ability to borrow money to fund this litigation. She says she is unable to pay her lawyers. I have no doubt this is so. The wife says owes her first counsel about $90,000, and her current counsel has about $340,000 in unbilled work in process, inclusive of disbursements and HST. She has already paid them about $336,000. She deposes that they cannot represent her at trial without a significant payment on account of the outstanding amount she owes them. Although there is no affidavit stating this, the wife’s counsel said at the argument of this motion that if the wife is successful in obtaining an advance of $300,000, the firm would undertake to continue to represent her through the trial. In sum, the wife says she is impecunious, and therefore the husband should make an advance of $300,000 to her.
[60] I have no affidavit from the wife’s counsel concerning when the outstanding fees were incurred, and for what services. Pardu J denied the wife’s claim for interim costs in 2008. That claim was made for prospective fees and disbursements of $200,000. This motion is framed as payment for past due amounts, and not, as it should be, for future fees and disbursements. It seems to me that as framed, the motion is claiming for fees that have already, at least in part, been denied already. I assume this is so, since I have no evidence at all as to the period over which the outstanding fees accrued.
[61] Similarly, if the wife is really seeking costs so that she can pay her counsel for trial preparation and for the trial, I have no real evidence of these costs either. I have no affidavit from her counsel to tell me how much time the firm expects to spend in trial preparation, who will do the work, and at what hourly rates. I have no evidence about trial time, hours expected to be expended and by which counsel, and what their hourly rates might me.
[62] The wife bears the onus on this motion. Numerous cases on interim costs have made adverse findings where this kind of particularity was not provided.[^12] I make a similar adverse finding here, especially when Czutrin J. specifically adjourned this motion to be brought “on better and proper material of the Wife outlining with greater detail and supported by evidence as to what disbursements she may have if she chooses to challenge the yet to be served expert reports.”[^13] The wife has failed to provide the necessary material she was ordered to produce. She has failed to meet her evidentiary burden, and as a result, her claim for interim costs must also be dismissed.
Conclusion:
[63] For these reasons, the wife’s motion is dismissed. The husband will have his costs, fixed, as agreed, at $9,000 all inclusive.
MESBUR J.
Released: 20120731
[^1]: R.S.Q. c. P-27
[^2]: 2001 28261 (ON SC), [2001] O.J. No. 5172
[^3]: ibid. paragraphs 9-13
[^4]: Ludmer v Ludmer, 2008 CarswellOnt 4987 (S.C.J.) At that time, the wife was seeking an order of $200,000 for interim costs.
[^5]: Report of Professor Jeffrey A. Talpis, dated 17 December 2011.
[^6]: Paragraph 19 of Article IX of Ludmer Children Trust
[^7]: Report of Sylvain Lussier, Ad.E. dated December 15, 2011
[^9]: Ludmer v. Ludmer, 2009 QCCA 1414 at paragraphs 17 and 49
[^10]: Exhibit R to the affidavit of Lisa Ludmer, sworn 24 April 2012, filed in support of this motion.
[^11]: The fee letter is not included in exhibit R to the wife’s affidavit in support of her motion.
[^12]: See, for example, Pakka v. Nygard, 2002 CarswellOnt 3403 (S.C.J.); Root v. Root, 2008 CarswellOnt 3995 (S.C.J.); Gold v. Gold, [2009] O.J. No. 4000 (S.C.J.)
[^13]: Endorsement of Czutrin J dated July 27, 2011, Ludmer v. Ludmer, 2011 ONSC 4448