ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-11-59
DATE: 2012/08/21

BETWEEN:

ANGELA VIGNEAULT Applicant
– and –
STEPHEN JOHN MASSEY Respondent

Yanik Guilbault, for the Applicant
Self-Represented

HEARD: By Written Submissions

decision on costs

M. Linhares de Sousa J.

[ 1 ] I have now had the opportunity to examine the parties’ written submissions on the question of costs. The issues before me on this matter concerned parenting issues, the interpretation of a Cohabitation Agreement, child support including extraordinary expenses, both retroactive and ongoing, and spousal support, both retroactive and ongoing.

[ 2 ] At the commencement of trial the parties made diligent efforts to settle the majority of the parenting issues. They succeeded in doing this. Left for my adjudication were a few sundry parenting issues. I conclude that success was shared on the decision of the parenting issues.

[ 3 ] Concerning the balance of the issues, there is no question that Ms. Vigneault was substantially successful. Her interpretation of the Cohabitation Agreement was accepted and she obtained an equal share of the value of the matrimonial home. She was awarded a substantial payment of retroactive child support, although she did not receive the full amount she requested. She succeeded with respect to the question of ongoing child support. Finally, she succeeded on the question of spousal support.

[ 4 ] Rule 24(1) indicates that a successful party is presumed entitled to costs. A successful party should receive their costs unless there is some reason why such costs should not be awarded, such as behaving unreasonably or acting in bad faith. I cannot find that either party acted in bad faith in this case.

[ 5 ] With respect to the question of unreasonable behaviour, Rule 24(5) indicates that a court may consider any offers to settle made by a party in deciding whether a party has behaved reasonably or unreasonably.

[ 6 ] In this case both parties presented multiple offers to settle, in various forms, dealing with the many issues between them. After examining all of the parties’ offers to settle I am not able to conclude that any one of them, as they related to all of the issues, would trigger the mandatory application of Rule 18(14). Although, I am able to conclude that Ms. Vigneault’s offers, generally, came closer to the results at trial than did those of Mr. Massey.

[ 7 ] I have also considered the factors enumerated in Rule 24(11). The issues in this case, while certainly important to the parties were not particularly complex or difficult. What made the case difficult was the high conflict level in this litigation.

[ 8 ] I have already spoken about the reasonableness or unreasonableness of each party’s behaviour.

[ 9 ] I have considered the costs incurred by the parties in this litigation. Counsel for Ms. Vigneault submitted his Bill of Costs. Mr. Massey, although representing himself during the trial, consulted a number of lawyers during the course of this litigation. Mr. Massey provided the legal Bills of Costs which he received and had to pay from his earlier legal representation, including the cost of his legal obligation to provide financial disclosure and the evaluation of his business. While Ms. Vigneault’s legal costs are higher, there is no question that those of Mr. Massey are comparable. Clearly, the high level of conflict in this matter has contributed to the building up of the legal fees that these parties have had to meet.

[ 10 ] The high amount of legal fees incurred by both parties in this case is unfortunate. In light of the nature of this litigation, I cannot conclude that Ms. Vigneault’s legal fees are unreasonable. This is because of the experience of Ms. Vigneault’s counsel, his hourly rate and the number of hours he and his associates spent on this case and the numerous court appearances required prior to the commencement of trial.

[ 11 ] There is no question that neither party is able to afford this litigation, although Mr. Massey, despite his financial losses after the separation, has greater financial resources to bear it. He can hardly claim that legal fees of $119,000 are too high, nor that he could not have reasonably foreseen them to be that high when he, himself, reveals that without legal representation at trial, he has incurred some $88,293 in pursuing this litigation.

[ 12 ] In Boucher v. Public Accountants Council for the Province of Ontario , (2004), 2004 14579 (ON CA) , 71 O.R. (3d) 291 (C.A.), the Court of Appeal indicated that an award of costs must be fixed at an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings. At the same time, however, it would be unfair to Ms. Vigneault to have her financial success on this trial substantially negated by the amount of the legal fees it took to obtain that success.

[ 13 ] For all of the reasons mentioned above, I come to the conclusion that Ms. Vigneault ought to be awarded a substantial portion of her costs. She was successful on the majority of the issues, issues which took up the greater portion of the trial. Consequently, I order Mr. Massey to pay Ms. Vigneault $80,000 as a contribution to her costs, payable forthwith.

M. Linhares de Sousa J.

Released: August 21, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ANGELA VIGNEAULT Applicant – and – STEPHEN JOHN MASSEY Respondent DECISION ON COSTS M. Linhares de Sousa J.

Released: August 21, 2012