Court File and Parties
COURT FILE NO.: FS-12-73857-00 DATE: 2016 10 04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: NATHALIE MURRAY v. ROBERT BORTOLON
BEFORE: EMERY J.
COUNSEL: Nathalie Murray, on her own behalf Doug LaFramboise, for the Respondent
HEARD: In writing
COSTS ENDORSEMENT
[1] Each party has filed written submissions seeking costs pursuant to my invitation under paragraph 110 of my Reasons for Judgment released on August 18, 2016.
[2] Even though the applicant, Natalie Murray represented herself at trial, she seeks $29,700 on a substantial indemnity basis to recover $10,500 she paid in legal fees, and $19,200 for her own time. The respondent Robert Bortolon seeks costs on a substantial indemnity basis in the amount of $56,010.76, or costs on a partial indemnity basis in the amount of $37,340.51.
[3] I indicated in the Reasons for Judgment that the trial proceeded in three distinct segments in December 2014, December 2015 and February 2016 in large part because of disclosure issues. Overall, the trial unfolded over eight days including time for closing argument. Although the narrative was reasonably complicated, the case at trial boiled down to three issues:
- Ms. Murray’s claim that Mr. Bortolon should pay child support for the two sons from her first marriage. This issue turned upon whether the court made a finding that Mr. Bortolon stood in the place of a parent to those children.
- The claim for spousal support claim made by each party against the other.
- The equalization claim made by each party.
[4] A trial judge is given the power to award costs under section 131(1) of the Courts of Justice Act. However, that discretion is not unfettered. It is subject to any statute, and to applicable principles that guide the awarding of costs in civil and family matters in Ontario.
[5] This was a family case, and the Family Law Rules therefore apply. In a family case, the starting point for the exercise of a judge’s discretion when awarding costs is found under Family Law Rule 24(1). This rule provides that a successful party in a case is presumed to be entitled to costs.
[6] When addressing the issues that were determined at trial, Mr. Bortolon was successful on opposing Ms. Murray’s claim for child support and spousal support. Mr. Bortolon did not seek spousal support at trial, and he cannot therefore be considered unsuccessful on that issue. On issues relating to support, Mr. Bortolon was the successful party.
[7] The equalization claim made by each of the parties is somewhat of a different matter. Although Ms. Murray gave evidence and made submissions that Mr. Bortolon pay an equalization payment, her claim for equalization was really a claim to recover debt they incurred as a couple during their marriage that was left with Ms. Murray after separation. Most of the equalization claim was actually argued on the basis that Ms. Murray would owe Mr. Bortolon an equalization payment because of her ownership of the matrimonial home, and certain shareholdings that Mr. Bortolon attributed to her.
[8] Many of the difficulties encountered throughout trial were caused by Mr. Bortolon’s failure to make the proper disclosure ordered by various judges at different stages of the case. However, at the start of the trial Ms. Murray waived the right to require that Mr. Bortolon comply with those disclosure orders as they related to the valuation of shares in each of his companies. That disclosure, or any valuation of shares based on the disclosure ordered, would have been relevant to determine issues for support or the determination of net family property. Without that disclosure, the court had no evidence about the value of those shares held by either party.
[9] In the final analysis, the court arrived at an order that Ms. Murray pay Mr. Bortolon an equalization payment totalling $5,800. If this were the only issue relating to the property held by each of the parties on separation, Mr. Bortolon would clearly be the successful party on this issue.
[10] But it was not. Mr. Bortolon was not content to leave it as a straightforward equalization claim. Instead, he asserted a trust claim to seek an interest in 18 Pavin Crescent on the basis of a resulting trust under section 14 of the Family Law Act. Alternatively, Mr. Bortolon asked the court to find that he was entitled to a constructive trust in the property on the basis of unjust enrichment for allegedly improving the matrimonial home at his expense. He was unsuccessful in proving either trust claim. The success achieved by Ms. Murray on these issues offset Mr. Bortolon’s success as the party to receive an equalization payment.
[11] In relative terms, Mr. Bortolon was the more successful party at trial and is entitled to costs. It is a fundamental principle that the amount of costs awarded in a case must be fair and reasonable: Boucher et al. v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3rd) 291 (ONT.C.A.). In this case, I must consider the amount that would be fair and reasonable to order Ms. Murray to pay for costs. This amount should not be measured by the actual expense incurred by Mr. Bortolon for the litigation: Zesta Engineering Ltd. v. Cloutier.
[12] There is also authority that the amount of costs that would be considered fair and reasonable must be proportionate to the overall result. This principle of proportionality permeates many aspects of civil and family litigation in Ontario and is relevant to the applicable rules of court that guide the discretion of the court on costs. I refer here to Biant v. Sagoo and Strassburger v. Strassburger, 2012 ONSC 6402 (SCJ).
[13] I also refer to Rule 1.04(1.1) of the Rules of Civil Procedure that requires the court, when applying the rules, to make orders and give directions that are proportionate to the importance, complexity and amount involved in a case. Although this is a family case, I refer to Rule 1.04(1.1) because Family Law Rule 1.07 permits the court to rely upon the Rules of Civil Procedure by analogy where the Family Law Rules do not cover a particular matter. That makes Rule 1.04(1.1) applicable here. As Mr. Bortolon was successful on having the support claims dismissed but recovered only 10% of the total amount claimed for an equalization payment, I am reducing his costs dramatically to make them proportionate to the result achieved in real terms.
[14] There was no offer to settle to make Family Law Rule 18 applicable here. There is also no reason in this case to award costs on any basis other than on a partial indemnity scale. In all of the circumstances, including the factors set out in Family Law Rule 24(11), I consider that a fair and reasonable amount to award Mr. Bortolon for costs would be $12,500, all inclusive for his success on the support claims. This amount represents one third of the costs Mr. Bortolon has requested on a partial indemnity basis, which is proportional to the time spent at trial on those issues.
[15] Order to go accordingly.