Superior Court of Justice – Ontario

Family Court

Citation: Wilson v. Bedard, 2017 ONSC 6700 Court File No.: F368/14 Date: November 14, 2017

Re: Kelly Lyn Wilson, applicant And: Raymond Isidore Bedard, respondent

Before: Vogelsang J.

Counsel: Kate Bennett for the applicant William R. Clayton for the respondent

Heard: written submissions filed

Costs Endorsement

[1] The trial of this action consumed 23 days. Many issues were contested by the parties and the conduct of the trial was, at times, remarkable; for example, Ms. Wilson was cross-examined for seven days, and Mr. Bedard – as I noted three times in my reasons – demonstrated a penchant for continuing last-minute productions of huge briefs, thick binders and other collections of emails, photographs, cancelled cheques, receipts and documents, all in attempts to support his various positions about the matters at issue which were:

a) sole or joint custody of the two children;

b) parenting time with the children;

c) Ms. Wilson’s claim that income should be imputed to Mr. Bedard in the many years between 2010 and 2015 when he did not work;

d) Mr. Bedard’s claim that Ms. Wilson should have full-time employment and higher income imputed to her;

e) retrospective child support;

f) retrospective and continuing spousal support;

g) disputed credits for past withdrawals from two lines of credit and other payments made for the benefit of Ms. Wilson;

h) date of marriage deductions for assets of both parties;

i) exclusive possession of the former matrimonial home, or its immediate sale, and

j) Mr. Bedard’s claim that Ms. Wilson should be responsible for half the interest charged on the two joint lines of credit over a number of years.

[2] Each party advanced two offers to settle before trial in terms which were severable to some extent. Ms. Wilson seeks – with respect to some issues – substantial indemnity costs, relating the result achieved at trial to the offer she made.

[3] Pazaratz J. dealt with offers and their effect on costs and rules 18(14) and 18(16) of the Family Law Rules, O. Reg. 114/99 in Chomos v. Hamilton, 2016 CarswellOnt 15962 (Sup. Ct.) and, in finding the applicant overwhelmingly successful, said:

19 To trigger full recovery costs a party must do as well or better than all the terms of any offer (or a severable section of an offer). Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 (SCJ); Rebiere v. Rebiere, 2015 ONSC 2129, 2015 ONSC 2129 (SCJ); Scipione v. Scipione, 2015 ONSC 5982, 2015 ONSC 5982 (SCJ). The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order (Sepiashvili v. Sepiashvili, 2001 25708 (ON SC), 2001 CarswellOnt 3459, additional reasons to 2001 CarswellOnt 3316 (SCJ); Wilson v. Kovalev (supra).

20 None of the non-severable offers filed by the parties trigger cost consequences pursuant to Rule 18(14).

a. The Applicant's June 19, 2015 offer correctly anticipated most of the outcome, but the "package' included child support higher than the Respondent ultimately had to pay.

b. The Applicant's mid-trial offer dated August 5, 2016 was not filed seven days before the trial, as required by Rule 18(14)(2).

30 However, even if Rule 18(14) doesn't apply, Rule 18(16) allows the court to consider any written offer, the date it was made, and its terms. This provision allows me to take into account the fact that the Applicant consistently made good faith settlement proposals. In contrast, none of the Respondent's offers come even close to reflecting the overall result of this case.

[4] In this case, the significance of the settlement offers put forward by Ms. Wilson is confused by her repeated offers to accept Mr. Bedard’s half-interest in the matrimonial home in lieu of past support. It is unclear to me how to view the support offers as a result and I am unable to accept her submissions about substantial indemnity. The Court of Appeal has very recently confirmed, in deciding if offer-based substantial indemnity costs should be awarded, first, that the onus rests on the party who alleges a previous offer to settle an issue on terms that were equal to or better than the result achieved after a hearing to demonstrate that fact clearly and, second, that speculation is to be avoided. Where variables attend the result obtained and the offers made were structured differently from both each other and the award made, a case is not made for substantial indemnity costs: Slongo v. Slongo, [2017] O.J. No. 4564 (C.A.).

[5] Mr. Bedard impressed me as an individual who could not easily face or accept a negative result. He prolonged this trial quite considerably by the positions he took, including his changing his parenting time claim to “week about” in the very middle of his testimony. He acted unreasonably by pursuing issues through the litigation process without a reasonable prospect of success, behaviour which can attract payment of an enhanced costs quantum: Rebiere v. Rebiere, 2015 ONSC 2129 (Sup. Ct.).

[6] In my view, Ms. Wilson was considerably more successful on any realistic view of the many issues and their disposition after trial. “Success” cannot easily have a literal foundation and where a party achieves an order effectively giving her the result sought, it cannot be said that there was a lack of success because the exact relief sought was not achieved: Thrush v. Hiros (No. 2), 2015 ONCJ 548 (Ont. Ct.).

[7] Ms. Wilson is entitled to her costs, but the quantum to be paid must reflect the factors in r. 24(11) of the Family Law Rules, viewed flexibly: C.A.M. v. D.M. (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.). The costs award, as well, must represent a fair and reasonable amount that should be paid by Mr. Bedard, rather than any exact measure of the actual costs to Ms. Wilson: Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.).

[8] I am required to step back and make an assessment of a sensible and fair result consistent with what the more unsuccessful party might reasonably have expected to have to pay: Moon v. Sher, 2004 39005 (ON CA), [2004] O.J. No. 4651 (C.A.). As indicated, the costs assessment must also reflect some form of proportionality to the actual issues argued, not just an unquestioned reliance on billable hours and documents created: Pagnotta v. Brown, 2002 CarswellOnt 2666 (Sup. Ct.). Proportionality must always be kept in mind when considering any costs issue: Gale v. Gale, 2006 CarswellOnt 6328 (Div. Ct.), but proportionality should not result in substantially reduced costs where the unsuccessful party has forced a long and expensive trial: Murphy v. Murphy, 2010 ONSC 6204, 2010 CarswellOnt 8616 (Sup. Ct.), Philippe v. Bertrand, 2015 CarswellOnt 7509 (Sup. Ct.), cited in Chomos v. Hamilton, supra.

[9] To my mind, a balanced, fair costs award to Ms. Wilson to reflect her significant success is $115,000 inclusive of recoverable disbursements and H.S.T. About 40 percent of the trial dealt with imputation of income and various other support issues. As an approximation, $46,000 represents “legal fees or other expenses arising in relation to support or maintenance” and, as such, should be enforceable by the Director. See s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (as am.); Wildman v. Wildman (2006), 2006 33540 (ON CA), 82 O.R. (3d) 401 (C.A.).

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: November 14, 2017