Court File and Parties

Citation: Honorat v. Jean-Paul, 2015 ONSC 2208 Court File No.: FS-12-379455 Date: 2015-04-08 Superior Court of Justice - Ontario

Re: Marie Altagrace Honorat, Applicant And: Patrick Jean-Paul, Respondent

Before: Harvison Young J.

Counsel: Marie-Josée Beauplan-Mann, for the Applicant Sunny N. Vincent, for the Respondent

Heard: September 29, 30, October 1, 2, 2014

Endorsement

[1] The applicant wife and the respondent husband have both filed costs submissions arising out of the 4 day trial held before me between September 29 and Oct 2, 2014. I released my reasons for judgment on November 28, 2014.

[2] The issues at trial were:

Sale of the matrimonial home;

Equalization;

Mr. Jean-Paul’s income for child support purposes; and

Whether private school tuition is a legitimate s. 7 expense.

[3] Ms. Honorat was more successful with respect to the husband’s income and also achieved some success with respect to the school tuition.

[4] With respect to his income, I found that the husband’s current income for support purposes is $60,000 annually. The husband’s offer to settle stipulated income at $45,000 with child support on that basis.

[5] The husband’s position at trial was that he was willing to contribute to the private school tuition if and when the house was sold because he would be able to go back into business and his income would go up.

[6] The issue of costs is governed by Rule 24 of the Family Law Rules. The starting point is the presumption that a successful party is entitled to costs (see Rule 24(1)). However, despite sub rule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.

[7] In my view, success at trial was divided. Although Ms. Honorat was successful in establishing Mr. Jean-Paul’s income at a higher level for support purposes than he had maintained prior to (and at) trial, she was unsuccessful in alleging that there should be an unequal division of family property on the basis of the husband’s bad faith.

[8] For the reasons that follow, I conclude that no costs should be awarded. While the wife was more successful than the husband at trial, the unreasonableness of her conduct dramatically increased the time necessary for this matter, both before and during the trial.

The Wife’s Submissions

[9] Most of the wife’s submissions on costs are wholly inappropriate for submissions on costs. She submits that higher costs should be awarded on the basis of the husbands “perjury” and continues to make arguments, for example, that the wife did not have access to financial documents.

[10] The applicant wife also continues to make arguments about lack of disclosure on the husband’s part to justify the costs order she seeks. Following the trial, she brought a motion to reopen the trial which was heard by Kiteley J. on March 31, 2015 who dismissed it and released an endorsement which is also dated March 31, 2015. Kiteley J. ordered costs payable by the wife with respect to the motion in the amount of $4,000.

[11] In her cost submissions she has continued to seek to re-litigate not only the trial but the myriad of pre-trial disclosure motions she brought.

[12] The wife’s conduct throughout this matter was unreasonable and resulted in higher costs for both parties in the course of this matter. She brought motion after motion (about 8 in the space of about 18 months) in relation to disclosure which contributed to the challenges of this trial. At trial, she complained about the lack of disclosure, but was unable to point to material documentation that she sought that was not available at trial. She referred to mortgage documentation but the fact is that she did have access to these documents as, even on her own evidence, she signed or co-signed for all the financing obtained by the parties. Even if Ms. Honorat herself was not able to discern how to obtain this information, she was represented by counsel throughout and this should have been facilitated. Rather, the applicant through her counsel chose to devote costly time to the argument about whether the husband had taken these financial records with him when he left the matrimonial home or not. This was unnecessary and costly, and such costs should not be borne by the husband.

[13] The unreasonableness of the wife’s conduct is further emphasized by the fact that she was unable to utilize the disclosure that she had obtained. The cheque in issue before Kiteley J. in the March 31, 2015 motion is but one example and there were others in the course of the trial. In short, the wife chose to spend significant resources on pre-trial motions that were wasted because she did not effectively use the disclosure that she had at trial.

[14] I also note that a great deal of trial time was consumed by the applicant’s position that there should be an unequal division of property. At the end of the trial I invited Ms. Beauplan-Mann to submit any case law that supported an unequal division in such a case as this one. While she did submit some cases to the court, none supported her position in the circumstances of this case. It was very clear from the outset that this was not a case falling within the highly exceptional circumstances in which courts have awarded unequal divisions of family property. This should also have been clear to counsel and the applicant. The fact that it was not resulted in a longer trial and may have prevented a settlement at an earlier stage.

[15] But for the fact that the wife was more successful on the support and private school issues, I would have awarded costs against her in light of her unreasonable conduct as I have outlined above. However, she did enjoy some success on those issues and for that reason I have concluded that there should be no order as to costs for the trial.

[16] Accordingly, there shall be no order as to costs.

Harvison Young J.

Date: April 8, 2015