CITATION: Tremblay v. Tremblay, 2016 ONSC 3898
COURT FILE NO.: FC-13-2136
DATE: 2016/06/14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Catherine Tremblay
Applicant
– and –
Jeffrey Tremblay
Respondent
Philip W. Augustine and Kaitlin A. Bradley, for the Applicant
Gordon E. Sheiner, for the Respondent
HEARD AT OTTAWA: September 29, 2015 – October 6, 2015
DECISION REGARDING COSTS
Phillips J.
[1] A six day trial was required to deal with nine difficult issues of significant complexity and importance. This is my decision with respect to costs.
Positions of Parties
[2] The Applicant proposes that she is the successful party and should receive costs in the amount of $275,000. That amount is said to be a reasonable substantial indemnity portion of the $345,734.86 that she has actually expended.
[3] The Respondent argues that success has been so equally divided that no costs should be awarded.
Factors
[4] The factors to be considered when fixing costs are set out in Rule 24 of the Family Law Rules and include that the successful party is presumed to be entitled to costs, the reasonableness of the behaviour of each party and any offers to settle, any acts of bad faith by any party, the importance, complexity or difficulty of the matter, the scale of costs, hourly rates and time spent, and the reasonable expectations of the losing party.
[5] The rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour of litigants: (Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40).
Success
[6] A central trial issue involved the determination of the Respondent’s income for child and spousal support purposes. On that important front, the Applicant was the more successful party, exceeding her offers to settle. Moreover, she had an unfair uphill battle in that regard because the Respondent unreasonably declined to make any real effort to value his business interests. I find the Respondent’s failure to value assets under his control to be contrary to the rule in Conway v. Conway, 2005 CanLII 14136 (ON SC), 16 R.F.L. (6th) 23, 2005 CarswellOnt 1677 (Sup. Ct. J.), and an example of unreasonable litigation conduct relevant to costs. The Respondent’s challenge to the Applicant to unilaterally marshal what was required to prove the value of his business interests significantly complicated the determination of his income for support purposes.
[7] With respect to the most significant property issues, my judgment sided with the Respondent on the question of whether the MH Tremblay Holdings Inc. share value should be included in the Respondent’s net family property. That was a very significant defensive achievement on his part. However, I found that the “Nictor shares”, although an interest that began as a mere trust expectancy, originally conveyed via gift, were converted by the Respondent into a property certainty, and indeed shared family property, when he demonstrated an ability to access the funds at will for family income supplementation purposes, thereby demonstrating those funds to be at one with his family’s general income and assets. In this way, by valuation day, any expectancy the Respondent had received via gift had become a family property interest that was no longer exclusively his. That “Nictor shares” finding resulted in the Applicant achieving a result in excess of her offers to settle on the main property issues when the property division dispute is assessed on the whole.
[8] In my view, the Applicant was the more successful party overall, and she exceeded her offers to settle when the issues and results are assessed globally. While the Respondent did succeed on some issues, and indeed with considerable effect on the ultimate monetary outcome, I would not describe this trial as an example of equally divided success. Even if it is hard to completely fault the Respondent for forcing the trial, given the significance of the treatment of the MH Tremblay Holdings Inc. share value and the end result achieved by him on that issue, he is entitled to only a small deduction from the costs sought as a result of his success in that regard. The bottom line is that the Applicant exceeded her offers to settle.
Hourly Rates, Time Spent and Proportionality
[9] I have reviewed the detailed Costs Outline submitted by the Applicant. Its breadth clearly illustrates the complexity and lengthy history of this proceeding.
[10] That said, I do not agree that the Respondent should have to compensate the Applicant for her decision to have two counsel prosecute the trial (the Respondent made do with one). In addition, I am not persuaded that the Respondent should have to compensate the Applicant for legal expenses she incurred prior to the commencement of the action.
[11] In any event, I have considered that “The overriding principle of reasonableness must govern, rather than any exact calculation of what costs should be allowed. A line by line assessment of the fees is not required: (see: 1175777 v. Magna International (2007), 61 R.P.R. (4th) 68, aff’d (2008) 66 R.P.R. (4th) 186 (Ont. C.A.).
Amount the Unsuccessful Party Would Reasonably Expect to Pay
[12] Both counsel are of the top-tier of the Ottawa family law bar. Both were exceptional advocates who discharged their function in exemplary fashion throughout the history of the proceeding. Both parties would have appreciated that the other was incurring considerable expense as this litigation progressed to completion. I note that the Respondent was billed $226,027.79 by his own counsel.
Disposition
[13] Having considered the above factors, the Respondent is ordered to pay to the Applicant costs fixed in the amount of $225,000 inclusive of HST and disbursements. The Applicant is entitled to more than partial indemnity because of the Respondent’s unreasonable litigation conduct in the form of forcing her to value his business interests, even though he was clearly the one who should have done so.
Phillips J.
Released: June 14, 2016
CITATION: Tremblay v. Tremblay, 2016 ONSC 3898
COURT FILE NO.: FC-13-2136
DATE: 2016/06/14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Catherine Tremblay
Applicant
– and –
Jeffrey Tremblay
Respondent
DECISION REGARDING COSTS
Phillips J.
Released: June 14, 2016