BRACEBRIDGE COURT FILE NO.: FC-10-198-00

DATE: 20120810

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

VIKTORIJA TOPPER

Applicant

– and –

ALFRED ROBERT TOPPER and FRANK DOUGLAS TOPPER

Respondents

Self-Represented

Barry Dryland, for the Respondents

HEARD: by written submissions

WILDMAN J.

REASONS FOR DECISION RE COSTS

[1] This endorsement relates to the costs of a 21 day trial that I heard in the latter part of 2011. Mrs. Topper (Viktorija)[^1] did not have a lawyer representing her at the trial. She was successful in obtaining an order for $3,600 of spousal support from her former husband (Bob), as well as $11,973.63 from her former brother-in-law (Doug). These amounts were compensation for her contributions to the residence that she and Bob had lived in during their marriage, which was owned by Doug. The total judgment in her favour is $15,573.63.

[2] Both parties are claiming costs. Bob and Doug, who were represented by Mr. Dryland, claim full recovery of the costs they have paid to their counsel of $71,473.57, inclusive of fees, HST and disbursements. In response, Viktorija claims exactly the same amount, plus another $10,000 for her “legal advisor.”

[3] For the assistance of the parties, particularly Viktorija, who does not have a lawyer acting for her to explain things, I will try to use the approach I adopted in the trial decision of providing a roadmap to my decision, as well as a brief introduction to each section to explain what follows.

ROADMAP

[4] First, I will explain the basic elements of a costs award, and then I will set out some of the general principles from the Family Law Rules, O. Reg. 114/99 and the case law. After that I will analyze the offers that were made and then turn to an application of the costs principles to the particular facts of this case.

THE TWO ELEMENTS OF A COSTS AWARD

[5] There are two things to be decided when considering costs: entitlement (who gets costs) and amount (how much do they get). There are some general principles that I will be using to guide my discussion about entitlement and amount, and I will outline them now for the parties.

PRINCIPLES RELATING TO COSTS

[6] A successful party is presumed entitled to costs.[^2]

[7] If a party does as well as, or better than, a “Rule 18” offer, he or she is entitled to partial recovery costs up to the date of the offer, and full recovery thereafter.[^3] There are certain formal requirements about the signing[^4] and timing[^5] of offers, in order for them to qualify as proper offers under Rule 18.

[8] Even if a person did not do as well as, or better than, his or her offer, the court may consider the terms and timing of any written offers in exercising its discretion over costs.[^6] This trial was becoming particularly lengthy and difficult, so I encouraged the parties to make settlement offers at various stages in the trial, and told them that I would be considering all offers, even if made during the trial, in my decision about costs.

[9] If neither party has received a judgment as good as, or better than, one of his or her offers, the court returns to Rule 24 for some guidance about costs.

[10] Generally, full recovery costs are not awarded unless a party has met or exceeded an offer under Rule 18(14) or the other party has acted in bad faith.[^7] However, in exercising its discretion about costs, the court is more likely to award an amount on the high end of partial recovery, if both the party’s behaviour and the amounts claimed are reasonable.

[11] When success is divided, the court may apportion costs as appropriate.[^8]

[12] Even in the highly charged and emotional arena of family law disputes, the court expects litigants to conduct their case reasonably. “Reasonableness” is a recurring theme in the Family Law Rules. For example, a successful party who has behaved unreasonably may be deprived of all or some of his or her costs, or may be ordered to pay the other party all or some of that party’s costs.[^9] One specific example of when a successful party’s conduct has been so unreasonable that it might result in him or her being deprived of costs, and possibly required to pay the other party’s costs, is when a person alleges fraud but does not prove it.[^10] However, courts will only award costs against a successful party in exceptional and particularly egregious cases.[^11]

[13] The court expects litigants to try to avoid the expense and acrimony of a trial. The attempts that have been made to settle the case, even during the trial, are a big consideration in deciding who caused the necessity of the trial, and therefore who should pay for it. To reinforce the importance of offers, the court is directed to look at specific things in assessing reasonableness: the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; the reasonableness of any offers made; and any offer that the party withdrew or failed to accept.[^12]

[14] A “costs” award should compensate the winning party for reasonable costs, not every dollar or hour that he or she spent on the case. There is a concept of proportionality. The amount of time and money spent litigating must bear some connection to the amount that is realistically likely to be awarded to him or her. A person cannot expect the other side to compensate him or her for excessive preparation or trial time, having regard to both the realistic maximum value of the amount in dispute and the actual value of the claim as ultimately determined by the trial judge.

[15] Even a person who is acting for himself or herself may receive an award of costs, which may include a counsel fee.[^13] The purposes of a costs award are to indemnify successful litigants for the costs of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants.[^14] If a person feels that he or she faces no exposure to costs if the other side is unrepresented, the last two aspects of a cost award would not be able to be met. That is why unrepresented litigants who are successful in obtaining a judgment from the court are sometimes awarded costs, even if they have not incurred the cost of paying a lawyer.

[16] Some of the principles that have been developed in considering the appropriate costs to award self-represented parties are as follows:

(a) Self-represented parties may be awarded costs, including an award for a counsel fee.

(b) A self-represented litigant does not have an automatic right to recover costs. The matter is fully within the discretion of the court.

(c) The self-represented litigant is not entitled to costs calculated on the same basis as the litigant who retains counsel.

(d) The self-represented litigant may be awarded costs for the time and effort he or she devoted to work ordinarily done by a lawyer retained to conduct the litigation, but should not recover costs for the time and effort that any litigant would have to devote to his case, such as attending in court in any event.

(e) As a result of devoting the time and effort to work ordinarily done by a lawyer, the lay litigant must demonstrate that he or she incurred an opportunity cost by foregoing remunerative activity.[^15]

[17] The person deciding costs must consider certain things. They are:

(a) the importance, complexity or difficulty of the issues;

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

(c) the lawyer’s rates;

(d) the time properly spent on the case. The examples given in the Family Law Rules are preparing for trial, preparing witnesses, drafting documents including correspondence and orders, and arguing the trial;

(e) expenses properly paid;

(f) any other relevant matter.[^16]

[18] Costs should be decided at each step by the presiding judge. That means that I am not dealing with costs of the entire case, just the trial and the work that was not directly connected to another step of the proceedings, such as a motion or conference. I will be considering costs related to general work such as preparing pleadings and preparing for trial, as well as the cost of submissions, both for the trial and relating to this costs decision. If there were other attendances before another judge, I will not be considering them in my award of costs, unless the costs were specifically reserved to me.[^17]

ANALYSIS

Who is the successful party?

[19] As there is a presumption that the successful party is entitled to costs, the first step is to determine who was the successful party.

[20] In this case, Viktorija is the successful party, because she obtained a judgment against both Bob and Doug. Without this trial, she would not have been entitled to anything from either of them. Accordingly, she is presumed entitled to costs.

[21] Neither Bob nor Doug received a judgment for anything. A divorce was granted, which was one of Bob’s requests, but, other than that, Bob and Doug were not really asking the court to do anything, except dismiss all of Viktorija’s claims. They were not successful, as her claims were not dismissed.

[22] Bob and Doug were successful in resisting some of Viktorija’s claims, and in greatly reducing the amount she was claiming against them. However, this does not mean that they were the “successful parties.” They were just not as unsuccessful as they might have been if Viktorija had received everything she was claiming.

[23] The claims that Bob and Doug successfully resisted will be dealt with below, when I consider the amount to be awarded to Viktorija, and the “reasonableness” of each party. I will also discuss whether the rule about “divided success” is relevant to the calculation of costs in this case.

[24] However, the bottom line is that Viktorija got an order from the court for some compensation. She was the successful party, and she is the person entitled to claim costs.

A Consideration of the offers

[25] Despite their lack of success, if Bob and Doug did as well as or better than their offers, not only would they defeat Viktorija’s claim for costs, they would be entitled to costs from her. I turn now to a discussion about the consideration of those offers.

[26] Viktorija made two offers to settle, Bob and Doug made three. All parties admit that neither did as well as or better than any of his or her offers.

[27] However, each person says that the offers that were made by him or her should have a bearing on entitlement to, and the amount of, costs.

The offers

(a) Offer #1

[28] On October 7, 2011, Bob and Doug offered to settle all claims by paying $2,500 to Viktorija. Each party would bear their own costs. They point out that this is an additional benefit of at least $900 to Viktorija, because she had already been ordered to pay $900 in costs to them for prior events, and costs of a disclosure motion had been reserved to the trial judge.

[29] I find that this was not a reasonable offer, as the amount that Bob and Doug were prepared to pay Viktorija was so paltry that it was very unlikely to be expected to result in a settlement to avoid the trial.

(b) Offer #2

[30] On November 11, 2011, Viktorija offered to settle all her claims on various terms. It is difficult to fully understand the terms of this offer but it seems to include three options. Attached to all three options was a condition that the respondents would cover over all her hand painting in the house and provide photo proof that this had been done.

[31] Option 1 - The respondents would pay her $199,657 plus another amount set out on “the attached 21 pages,” which seemed to include tens, if not hundreds, of additional thousands of dollars. The exact total is unclear.

[32] Option 2 – The respondents would pay her $75,000 plus pay for all of her son, Edgars’, tuition and expenses at a college or university. Additionally, there would be a further unspecified sum for certain items, “because calculation is not finished yet.”

[33] Option 3 – The respondents would make a formal written admission that “any kind and form of discrimination (including fraud, slander, creation offences (sic) and mental illnesses, punishment for Legal Aid lawyers’ unlawful action), violence (including cruelty, threats, attack with knifes and aiding a suicide) against unwanted women and children are the norms in the family of Frank Douglas Topper, Marlene Sara Topper, Alfred Robert Topper, and these acts appear to be legal in Muskoka, Ontario.” The respondents would also pay all of Edgars’ tuition, and they would pay Viktorija $7,500. There is also a term that “the respondents will pay off any interest and court costs.”

[34] If offer #1 was unreasonably low, this offer was even more unreasonably high. Leaving aside for the moment the bizarre terms in option 3, the amounts requested in options 1 and 2 bear no relation to what any reasonable person could have expected might be awarded to Viktorija in this trial.

[35] The entire property was worth, at best, $93,000, and was subject to a mortgage of approximately $30,000. Although I found that Viktorija had contributed to the value of the property, Bob and Doug contributed much more than she did. She did some finishing work and decorating: they rebuilt it from the ground up. Viktorija also had the benefit of living at the property for six years. I have no idea why she thought she might receive almost $200,000 for her contributions to a property with just over $60,000 in equity in it, or why she thought Bob and Doug would be entitled to nothing for their contributions.

[36] With respect to spousal support, while Viktorija may have had some theoretical entitlement to spousal support, Bob was living on disability payments of less than $1,000 per month. He had next to no ability to pay spousal support. If part of Viktorija’s offer included a large amount of spousal support from Bob, that was unreasonable.

[37] I find that Viktorija’s proposals for settlement in offer #2 were totally unrealistic, and she was acting completely unreasonably at this point.

(c) Offer #3

[38] The trial began on November 14, 2011. Bob and Doug made a last ditch attempt to avoid the trial by offering to paint over all of Viktorija’s “artwork” on the walls and pay her $5,000. It was a condition of the offer that Viktorija would return all of Doug’s income information to him and not retain any copies. Again, each party would pay his or her own costs.

[39] Although they were moving in the right direction, this offer continued to be so low that it was unlikely to result in a resolution.

(d) Offer #4

[40] On December 5, 2011, the respondents offered to pay $8,000. The other terms were identical to offer #3.

[41] This was further progress toward a more realistic settlement. However, given the ultimate result at trial, the respondents were continuing to “low ball” Viktorija. They were, of course, entitled to offer her no more than they thought she would get at the end of the trial. However, they were taking the same risk as any litigant: if they didn’t offer as much as I found was owing, they were going to have to pay costs. Particularly given the fact that Mr. Dryland had not even completed his cross-examination of Viktorija on December 5, and the respondents had yet to start their own case, I am surprised that they did not throw more than $8,000 into the settlement pot to try to avoid the cost of paying their lawyer for the rest of the trial. Again, they were entitled to decide they would prefer to pay Mr. Dryland to continue the trial, rather than offer the saved legal fees to Viktorija. However, they were running the risk that they would have to pay Viktorija costs if she got more than $8,000. Unfortunately for them, they lost that gamble, and are now facing exposure to Viktorija’s costs claim.

(e) Offer #5

[42] By December 9, we had finished week 3 of the trial and there was no end in sight. Viktorija was in the middle of a gruelling cross-examination of Doug and we had yet to start Bob’s evidence. Viktorija was checking with her “legal advisor,” a local lawyer, about a proposed amendment to the pleadings, which would clarify that I could award her monetary damages for unjust enrichment, rather than be limited to her claim for an interest in the property.

[43] On Monday morning, December 12, 2011, Viktorija made another offer. In comparison to her first offer, it was surprisingly realistic and signalled a markedly different approach to possible resolution.

[44] She said she would accept $26,000, and agree to an uncontested divorce without costs. Alternatively, she would have exclusive possession of the matrimonial home for 12 months, fix it up, and then sell it. The profit, after reimbursing her for her “reasonable expenses for repairing and rehabilitation the matrimonial home,” would be divided equally between Bob and Viktorija. Everyone would bear their own costs.

[45] Although Viktorija did not do as well as this offer, the Bill of Costs reveals that the respondents paid Mr. Dryland about $20,000 in legal costs from that point forward. These costs went to completing the remaining seven days of trial, preparing written submissions, attending for Viktorija’s oral submissions, and subsequently preparing costs submissions. They would have been better off accepting Viktorija’s offer on December 12, and that is a factor that I will consider in my discussion of “reasonableness” below.

[46] Mr. Dryland, on behalf of his clients, points out that it was difficult for his clients to formulate an offer previously, as the only evidence of value was the appraisal from their appraiser, Mr. House. However, by December 8, Viktorija had obtained her own appraiser, Mr. Emmons, and we had heard his evidence that, in his opinion, the house was worth more than Mr. House had said. We had also heard from Mr. House that, if it was fixed up, the house could be worth over double what he had appraised it at.

[47] When Viktorija made her $26,000 offer on December 12, the respondents should have taken into account the “litigation risk” that had been created by the differing opinions of the appraisers. They were, of course, quite entitled to continue the trial, but they knew that they were risking costs by doing so.

Summary regarding the impact of the offers

[48] The first three offers were not reasonable. Doug and Bob were not offering Viktorija a reasonable amount for her claims, and she was better off proceeding with the trial. Viktorija was asking for a grossly inflated settlement and many of her terms were not within the jurisdiction of the court to award. Although Viktorija’s offer was less reasonable than either of Bob and Doug’s, I find that, before December 5, neither side had really made any reasonable effort to settle the trial.

[49] As the trial marched on, both sides seem to have become a little more realistic. The respondents’ December 5 offer to pay $8,000, and the applicant’s offer on December 12 to accept $26,000, narrowed the gap considerably. However, in assessing reasonableness, Viktorija did better than if she had accepted the December 5 offer of $8,000. It made sense for her to continue the trial. On the other hand, the respondents would have been better off to accept her December 12 offer to pay $26,000 and avoid the remaining six days of trial and the costs of trial and costs submissions.

[50] I find that December 12 was a turning point. Up to that point, Viktorija was not acting reasonably. Her demands were unrealistic and not all within the jurisdiction of this court to award. Her rhetoric was inflammatory and unhelpful. For reasons that will be explained more fully below, I am not going to award her any costs up to December 12, as I find her behaviour was so unreasonable up to that point that she has disentitled herself to costs.

[51] However, after December 12, she was acting much more reasonably by offering to settle for $26,000. She did not do as well as that offer, so she will not get full recovery costs, but she is presumed entitled to some costs as the successful party. I will turn now to a discussion about what costs she should receive, followed by a consideration of whether she has disentitled herself to those costs by her conduct, including her allegation of fraud.

Why Viktorija’s actions up to December 12 were so unreasonable that she shouldn’t receive costs

[52] Before turning to the costs that Viktorija is entitled to, I wish to explain in more detail why she is not entitled to costs up to December 12 because of her unreasonable conduct. In particular, I wish to discuss why her lack of representation is not a valid excuse for the way she conducted this trial.

The initial costs of preparing pleadings and all steps up to July of 2011

[53] As will be discussed in paragraph 59 below, Viktorija was originally represented by a lawyer, Mr. James Rose. Her second lawyer was Ms. Jennifer Swan. I have not received any Bill of Costs relating to their work and it appears that Viktorija may not have been required to pay for their services. As Viktorija is unlikely to reap any benefit from an order for costs related to their work, because she would have to repay her funding source, I am not going to order any costs be paid prior to July of 2011. I have no evidence that would assist me with that calculation, so I prefer to focus on the period after July of 2011, when Viktorija began to act for herself.

Her conduct of the case

[54] Viktorija’s conduct of this case was not reasonable. At every step of the way, she tried to delay having the matter tried on its merits. She asked for an adjournment at the beginning of the trial to obtain an appraiser, but when it was pointed out to her that the trial was peremptory on her, she managed to get her appraisal done. She supported her requests for delay with references to her Charter rights and her allegations that women and children are not protected properly by the justice system in Canada, but did not explain how having the claims that she had put before the court heard would in any way infringe her rights. She resisted providing the necessary disclosure to evaluate her claim, and she would not accept the disclosure provided to her by her former lawyer. She repeatedly produced evidence during the trial that had not been previously disclosed. She disputed facts that she should not have, such as the date of her marriage. She made bizarre and irrelevant speeches and claims, which made it very difficult to try to ascertain the true merits of her case. She refused to consent to the form and content of orders, instead continuing to send emails and letters disputing them because she didn’t agree with the rulings. Her conduct of this case throughout was very problematic and her unreasonable conduct is a compelling factor that causes me to deny her costs up to the point where she made a reasonable offer.

Her attacks on the other litigants and counsel

[55] Viktorija made unwarranted attacks on Bob, Doug, and Doug’s wife, Marlene, accusing them of dishonest, fraudulent, and criminal behaviour, including drug trafficking. She accused Mr. Dryland of forging the signature of his dead colleague. That was extremely unreasonable and is another reason why she has disentitled herself to costs. There has to be a sanction for this type of improper behaviour and the court is certainly not going to condone it by awarding costs to a litigant who is behaving this way.

Her unwillingness to engage in meaningful settlement discussions

[56] Viktorija’s offer of November 11 is a reflection of her completely unrealistic expectations, and her disjointed, unfocused and problematic presentation at every attendance. As it became evident during the trial that the costs would be huge, and Viktorija was struggling to present her case in a coherent manner, she was given further opportunities to try to resolve the case. She refused to even meet with Justice Wood, who was the most familiar with this case, for a midtrial settlement conference, even in the presence of her “legal advisor.” When a midtrial conference with another judge was arranged, that judge noted that “it is difficult to have her focus,” “she is convinced that it is prejudice against women in Canada that accounts for her circumstances,” and “it is difficult to determine the extent to which she may have any interest in the law which governs.” That is not a reasonable approach to litigation.

[57] Viktorija’s conduct of this litigation up to December 12 is probably the most extreme example of “unreasonable” conduct of a case that I can imagine. On behalf of his clients, Mr. Dryland submits that “if ever a litigant’s conduct warranted costs against her despite her apparent success on some issues, this is that instance.”

[58] For reasons that will be explained further below, I am not prepared to order costs against Viktorija but I do agree that, at least until her offer to settle for $26,000, her conduct was so unreasonable that she should not be entitled to any costs.

Does her lack of representation excuse her conduct?

[59] When this action began in August of 2010, Viktorija was represented by a lawyer, Mr. James Rose. On her behalf, Mr. Rose prepared an application claiming a divorce, spousal support, a 50% interest in the property, and an equalization payment. He also obtained a certificate of pending litigation against the property. All of these claims were reasonable but these initial costs do not appear to have been borne by Viktorija. I have not received a Bill of Costs for Mr. Rose’s work, but Viktorija does not appear to be claiming anything for the work he did. I presume this is because the nature of her retainer did not require her to pay for his services. Given the lack of request for reimbursement for his work, and the lack of evidence about what he was paid, I decline to order anything for the work he did. I also decline to order anything for the work of the next lawyer, Ms. Swan, for the same reason. As will be discussed below, that takes us to July of 2011.

[60] Unfortunately, Mr. Rose passed away suddenly. The case management judge, Justice Wood, tried to assist Viktorija to get her claims before the court, so that they could be adjudicated or settled. First, he found her a lawyer to replace Mr. Rose. For reasons that have not been disclosed to me, Viktorija couldn’t work with that lawyer. Justice Wood then canvassed potential replacements to help Viktorija. He also ordered an interpreter, when the need for one was questionable. Yet, despite the court’s great efforts to provide assistance, Viktorija refused to make an effort to move this matter forward. She couldn’t work with the lawyers who were prepared to take on her case, yet she didn’t want to do anything without a lawyer.

[61] On July 18, 2011, the matter was before the court for a settlement conference with Justice Wood. Justice Wood granted Viktorija’s then counsel, Ms. Swan’s, request to be removed from the record. The endorsement from that day is telling. It reads, in part:

This case is stalled primarily due to the applicant’s difficulty in obtaining and retaining counsel. Her first lawyer died tragically earlier this year. At the request of the court a second lawyer Jennifer Swan agreed to take the matter on. It soon became apparent that she and the applicant were unable to work together.

Although Ms. Swan made great efforts to find the applicant new counsel, according to the applicant, no lawyer in Muskoka, Orillia, or Midland would take on her case. However during the discussions it became apparent that at least one lawyer in Midland had been willing to see her and one lawyer in Orillia had spent one and a half hours with her and already agreed to take the matter on. That lawyer indicated on record today that he remained willing to do so.

The respondents have made extensive disclosure to the applicant a copy of which was produced here today. This disclosure together with the remainder of her file was returned to the applicant by Ms. Swan but refused by her. She claims she does not have it as it was “sent to Legal Aid for investigation”. It appears that the material may be in the Area Director’s office in Barrie.

Ms. Swan brought a motion to be removed as counsel of record which was opposed by the applicant. The applicant was given an adjournment to today’s date to file material on the motion for removal but failed to do so. An order was made removing Ms. Swan as counsel of record.

The applicant has requested and been provided with a Russian interpreter on the last three court dates. It is not clear just how necessary this is, as she frequently responds in English before waiting for translation. However it is appropriate that this service continue to be provided.

The applicant has not yet made disclosure although it is critical that this be done since her claim is one of constructive trust against property. It has been made clear to her today as it has in the past, that the action must proceed. She insists that she must have a lawyer and that she cannot proceed even with a settlement conference until she has one …

[62] If the reason for Viktorija’s extremely unreasonable conduct of this case was a lack of understanding, or a lack of access to legal advice, I might have been more understanding, particularly given the tragic circumstances of her lawyer’s death. However, the endorsement from July 18, as well as my observation of Viktorija during this trial, satisfies me that this was not the case. She did have choices for legal counsel. She couldn’t work with Ms. Swan and she wouldn’t accept either of the (at least) two lawyers who agreed to act for her. Having made that decision, she cannot now say that she shouldn’t be held accountable for the way she conducted her case without legal counsel.

[63] I have also seen the Bill of Costs prepared for her “legal advisor,” a respected family law lawyer in the Midland area. She billed over $10,000 for her work between August 5, 2011, and December 31, 2011, helping Viktorija to prepare for, present, and argue her case. Viktorija also quotes from the lawyer’s letter, which indicates she “spent many hours on the telephone and communicating with Viktorija by e-mails, and in person, to assist her, which hours I did not record on my dockets so they do not form any part of the accounts …”

[64] This lawyer also tried to assist with settlement discussions, which, I suspect, accounts for the much more realistic offer that was presented on December 12.

[65] I am satisfied that the conduct of this case by Viktorija, and the unreasonable positions she took, were not as a result of a lack of access to legal counsel. Instead, they were due to Viktorija’s refusal to listen to reason or to defer to those with legal training who wanted her to be more realistic. She refused to avail herself of either the legal or judicial assistance that was being offered to her, and preferred to continue to present her case in the unhelpful manner that she did. She thinks she knows better than anyone else, and she was not prepared to make reasonable or realistic compromises. It is not reasonable for her to receive any costs while she was behaving so unreasonably.

What were Viktorija’s costs after December 12?

[66] Having found that the offer of December 12 was a reasonable offer, Viktorija should receive some costs after she made this proposal. I will turn to the question of how much those costs should be.

[67] A self-represented litigant is not entitled to costs for time spent doing things that he or she would have had to do in any event, such as attending trial. However, time spent preparing outside of the trial time, as well as time spent preparing trial and costs submissions, would be properly included in a request for costs. Finally, any costs paid to her “legal advisor” related to assisting with those services may be claimed.

[68] Viktorija’s costs claim is for exactly the same amount as Mr. Dryland charged ($71,473.57) plus $10,000 for her legal advisor. It is not broken down. I shall, therefore, have to again try to do the best I can to fix the appropriate costs on the evidence before me, recognizing that this is an inaccurate science.

[69] In assessing Viktorija’s spousal support claim at trial, I found that she was able to earn $15,000 per year driving a school bus and caring for seniors. I also found that she should be able to earn some additional money teaching music and voice, and working as an organist. I find that a realistic number to use for Viktorija’s annual income, if she was not involved in this trial, would be $18,000, or $1,500 per month.

[70] I realize that it was very difficult for her to do her preparation in the evenings and on weekends, and that she would have devoted quite a bit of time to preparing both her trial and costs submissions.

[71] I have considered the factors in Rule 24(11). The issues of unjust enrichment and constructive trusts were complex. The amount of accounting and disclosure that had to be done was extensive. Viktorija did do a good job of organizing receipts and putting together the documentary evidence about the flow of money through bank accounts and credit cards.

[72] I am prepared to find that Viktorija could not also work at gainful employment while she was doing this. I am prepared to consider a “lost opportunity cost” for the equivalent of two months of earnings. I find that Viktorija can reasonably be considered to have spent that amount of time doing work on her case after December 12 that would normally have been done by a lawyer. If Viktorija had been working instead of doing the “legal” work on her trial, she could have earned approximately $3,000. That is the amount that I would allow for full recovery costs to compensate Viktorija for her work after December 12.

[73] I also see that Viktorija’s legal advisor’s bill from November 29 to December 31, 2011, is $4,017.72. I find that these costs are related to the legal work done around, or following, the time of the dramatic shift in position to a realistic settlement proposal, and I am prepared to include them in my consideration of costs. I also accept that, although someone else covered these costs for Viktorija, she feels duty bound to reimburse them, so they are properly included in Viktorija’s claim for costs.

[74] This means full recovery would be approximately $7,000. Viktorija did not do as well as or better than her offer, so she is not entitled to full recovery. However, she is entitled to partial recovery due to being the successful party. Taking into account that Bob and Doug had also made some attempts to settle the case, as well as the amount that they had to pay their own lawyer by virtue of Viktorija’s unreasonable conduct up to December 12, I fix the level of partial recovery that Viktorija is entitled to at 50% of her full recovery costs, or $3,500.

Has Viktorija acted so unreasonably that she should be deprived of her costs after December 12? Should she be ordered to pay costs to the respondents?

[75] Bob and Doug submit that success has been divided, so this should be taken into account in deciding costs. I agree that Bob had some success in obtaining a divorce over Viktorija’s objections (despite her having claimed a divorce in her application). I agree that there should be some compensation for this, as well as for her refusal to admit the proper date of marriage. However, the time spent on this during the trial was minimal, so I will deduct $250 for this item.

[76] With respect to the argument about “divided success” in defeating Viktorija’s claims for equalization, an interest in the property, or exclusive possession, I do not agree that this constitutes “success” for the respondents, entitling them to any costs. These were alternative claims made by Viktorija, and did not take up any additional trial time. The trial was almost exclusively about the hotly contested “unjust enrichment” claim. Viktorija was successful in obtaining an order for some compensation on that issue. There was no “divided success:” she won. I decline to reduce the costs that I am awarding on the basis of the rule regarding “divided success.”[^18]

A discussion of the issue of “fraud”

[77] The respondents submit that Viktorija should be disentitled to costs by virtue of claiming that they have committed fraud (and other sorts of criminal and disreputable actions). I have been referred to the case of Bemrose v. Fetter in which the Court of Appeal reversed the motion judge’s decision to award some reduced costs to a woman for her success on a motion, because she had improperly alleged fraud against her former husband.

[78] The Court of Appeal noted that the motions court had found that Mr. Fetter had not tried to deceive the court about his income, as alleged by Ms. Bemrose. In fact, when Mr. Fetter (an ordained minister), learned that one small aspect of the financial information he had previously provided was incorrect, he immediately disclosed it to Ms. Bemrose and attempted to give her additional support to rectify the “accounting problem.”

[79] The Court noted:

The actions taken by Mr. Fetter in relation to this matter ought to be encouraged by the courts. It was right that he disclose the mistake, once he was aware of it. It was right that he attempt to immediately compensate Ms. Bemrose for the effect such an error would have on child support. The steps that he took ought to have minimized or eliminated the need for recourse to the courts.

As an ordained minister, Mr. Fetter was particularly vulnerable to the allegation of perjury. He had no choice but to respond and defend himself. He was fully exonerated – the motion judge dismissed the Motion, insofar as it had been brought on the allegation of perjury, and made the finding that the claim of fraud was “unreasonable (not just unsuccessful, but quite untenable for lack of proof)”.

In the light of these factors and the strained financial circumstances of both parties, it appears to me that even if Ms. Bemrose had been successful, she ought to have been denied her costs …[^19]

[80] Bob and Doug were a far cry from the unreasonably maligned Mr. Fetter. Although I did not make a finding of fraud, the evidence in the trial established that they had also engaged in some unreasonable behaviour. This included:

1. Doug did not disclose any of the rental payments that he received for 60 Bridgeview in his income tax returns. While he tried to explain this away by saying that his costs outweighed his revenue, I find that Doug knew he was supposed to make the disclosure of rental income on his tax returns, and claim the appropriate expenses against it if he wished to do so. It is for this reason that his counsel rose to invoke the protection against self-incrimination under the Canada Evidence Act,[^20] which Viktorija has now seized upon as “proof of criminal acts.”

2. Bob and Doug have made numerous additions to the property, including installing one or two septic beds, and have never obtained a building permit. They continue to allow it to be assessed on the basis of the original cottage, which is about one-third of the size of the current building. Doug is knowledgeable about renovations, and I find that this is not an oversight on his part. The Topper brothers chose not to advise the Municipality of their work on this property, and they knew, or should have known, that this was not proper.

3. Doug served an improper “eviction” notice on Viktorija, claiming an inflated rent, and also claiming that he had not received any rent for two months. In fact, there was no interruption in the rental payment he was receiving each month from his brother. Doug unilaterally decided to suddenly characterize the payments as rent for Bob staying at Doug’s home while out on bail, even though the amount continued to exactly cover the mortgage, life insurance and taxes on 60 Bridgeview Lane. Doug knew, or should have known, that this was improper and misleading. Although Bob and Doug ultimately retook possession of the property while Viktorija was away, without the benefit of a court order, Doug had intended to act on this improper notice in the residential tenancies proceeding, which was highly questionable.

4. I found that Bob and Doug acted terribly to Viktorija and her son, Edgars, in trying to have them evicted without any compensation for their contributions to the property in question, and without any temporary assistance to find new accommodation.

5. Bob attacked Edgars with a knife. Edgars was still a high school student at the time, and there was no suggestion that he had done anything improper or behaved aggressively towards Bob the night of the attack. Bob has always had a problem when he drinks. However challenging his relationship with Viktorija may have become, domestic violence is not the answer, and threatening a young boy is inexcusable. Bob’s refusal to accept responsibility for his behaviour, and his brother’s attempts to back him up and put Viktorija and Edgars out on the street with no compensation, were not reasonable.

6. The evidence satisfied me that Bob had been doing work for neighbours for years. Bob denied this but I am satisfied from the “workbooks,” and even Bob’s own testimony, that this took place. I am not satisfied that it was always, if ever, declared to Ontario Works because we did not focus on that issue in this trial.

7. Although Bob and Doug complain about Viktorija entering documentary evidence that had not all been previously produced, they had a surprise of their own. Towards the end of the trial, they produced a videotape that had not been previously disclosed to anyone, including their lawyer. I have some doubt about the validity of Bob’s claim that the video was taken immediately after he returned to the property, to document its state of chaos, yet it was then “forgotten” until we were almost done the trial. I find it interesting that the neighbour, who was supposedly present when the video was taken, and could have confirmed its authenticity, was not called as a witness.

[81] In summary, the Topper brothers are a far cry from Mr. Fetter. If their conduct had been as exemplary as Mr. Fetter’s, I might have been inclined to follow the admonitions of the Court of Appeal and disentitle Viktorija from receiving any of her costs. I might even have made her pay them some of their costs in defending the allegation of fraud, if it had been completely groundless. However, I think that both Bob and Doug know that they have “pushed the envelope” somewhat.

[82] I decline to make the finding of fraud, as this was not a criminal trial, and we tried not to get sidetracked on the issue of Bob and Doug’s conduct, because we were focusing on trying to adjudicate the unjust enrichment claim. While Viktorija very much wanted to expand the trial further to deal with the “criminal” conduct of Bob and Doug, I repeatedly tried to bring her back to the family law issues before me. Bob and Doug, and their lawyer, did not have an opportunity to fully provide an answer to Viktorija’s allegations, so it would be unfair to them to make any finding of fraud, or other criminal conduct.

[83] However, given the “unreasonable” behaviour outlined above, I am not going to completely disentitle Viktorija from costs as result of her using the word “fraud” in her submissions.

MY ORDER

[84] I am prepared to order that Viktorija receive partial recovery costs, fixed at $3,250. She still owes $900 for the costs previously ordered against her. If they have not been paid, they should be deducted from the $3,250 total. I decline to order costs of the disclosure motion, despite them having been reserved to me. As the presiding judge did not award costs, I assume that he did not feel either party was entitled to them on the basis of what happened that day. I can only assume that he meant for that time to be included in what the successful party could claim for costs. For reasons previously mentioned, I find that Bob and Doug are not successful parties, so are not entitled to costs, and I do not feel that Viktorija is entitled to any costs for things that happened before the events surrounding the December 12 offer.

PAYMENT

[85] A party cannot expect to get relief from this court if she is not prepared to abide by orders made against her.

[86] I understand that Viktorija has still not complied with my order of March 5, 2012, that all copies of exhibits (including the copies of Doug’s income tax returns and banking records) be returned to the court for safekeeping.

[87] Neither the original award to her, nor the costs award under this decision, will be payable until she complies with that order. She will have a further 45 days to deliver those documents to the court office in Bracebridge. If she fails to do so, she will have permanently disentitled herself to entitlement to any costs under this decision, by virtue of her unreasonable conduct in ignoring court orders. As reasonableness is not a prerequisite to receiving her original judgment, she will not be permanently disentitled to that money. However, the original judgment in her favour will be stayed until she complies with the March 5 order.

WILDMAN J.

Released: August 10, 2012

[^1]: In order to distinguish between the Topper brothers, I will continue the practice from the trial decision of referring to them by their first name. For consistency, I will do the same with Mrs. Topper. [^2]: Family Law Rules, O. Reg. 114/99, Rule 24(1) [Family Law Rules]. Any reference to a “Rule” in this decision refers to the Family Law Rules. [^3]: Ibid., Rule 18(14). [^4]: Ibid., Rule 18(4). [^5]: Ibid., Rule 18(14). [^6]: Ibid., Rules 18(6) and 24(5). [^7]: Ibid., Rule 24(8). [^8]: Ibid., Rule 24(6). [^9]: Ibid., Rule 24(4). [^10]: Bemrose v. Fetter, 2007 ONCA 637, [2007] O.J. No. 3488 at para. 110 [Bemrose v. Fetter]. [^11]: Himes v. Himes, [2009] O.J. No. 4173 (Ont. S.C.) at para. 17 [Himes v. Himes]. [^12]: Family Law Rules, supra note 2, Rule 24(5). [^13]: See Himes v. Himes, which reviews the principles from Fong v. Chan, (1999) 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.) [Fong v. Chan], and Huard v. Hydro One Networks Inc., [2002] O.J. No. 4547 (Ont. S.C.) [Huard v. Hydro One]. [^14]: Fong v. Chan, supra note 13 at para. 22. [^15]: See Himes v. Himes, quoting with approval Master Dash at paragraph 19 of Huard v. Hydro One. [^16]: Family Law Rules, supra note 2, Rule 24(11). [^17]: Ibid., Rule 24(10). [^18]: Ibid., Rule 24(6). [^19]: Bemrose v. Fetter, supra note 10 at paras. 108 to 110. [^20]: Canada Evidence Act, R.S.C. 1985, c. C-5, s. 5(2).