PETERBOROUGH COURT FILE NO.: 59/14

DATE: 20180523

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Elizabeth Heather Lena Lambert

Applicant

– and –

Eric Norman Peachman

Respondent

Russell Alexander, for the Applicant

Michael Tweyman, for the Respondent

WOODLEY, S. J.

REASONS FOR DECISION RE COSTS

Summary of Proceedings

[1] The trial in this matter commenced on November 24, 2015 and continued for 16 days over two trial sittings. The evidence at trial concluded on June 1, 2016.

[2] The Reasons for Decision regarding parenting were released on December 1, 2016 as Lambert v. Peachman, 2016 ONSC 7443.

[3] In June of 2017, the Applicant brought a motion to Re-Open the Trial which was heard by me on July 7, 2017.

[4] The Reasons for Decision detailing my refusal to re-open the trial were released by me on July 10, 2017 as Lambert v. Peachman, 2017 ONSC 4270.

[5] The Reasons for Decision regarding financial issues were released on December 14, 2017 as Lambert v. Peachman, 2016 ONSC 7450.

[6] On January 4, 2018, the Respondent filed a 14B Motion seeking amendments to the judgment on the basis of mathematical errors and clarifications and on January 12, 2018, the Applicant filed a 14B Motion seeking clarifications to the judgment and leave to file submissions on the Respondent’s 14B Motion.

[7] On February 1, 2018, I released my Endorsement Re 14B Motions Seeking Clarification and Corrections as Lambert v. Peachman, 2018 ONSC 800. The Corrected Reasons for Decision Regarding Financial Issues was also released on February 1, 2018, as Lambert v. Peachman, 2017 ONSC 7450.

[8] On April 2, 2018, and April 4, 2018, the Respondent and Applicant each filed a further 14B seeking: (i) An Order striking paras. 7 – 11 of the Applicant’s Reply to Financial Costs Submissions; and (ii) An Order for Direction with respect to the wording of the final Order dated December 14, 2017 (as corrected on February 1, 2018).

[9] On April 6, 2018, the final submissions regarding costs were filed.

[10] On May 23, 2018. I released my Endorsement Re 14B Motions as Lambert v. Peachman, 2018 ONSC 3206 and directed that no further motions could be brought before me without leave.

[11] The last piece of the puzzle in this overly lengthy and unduly complicated proceeding is this decision regarding costs of the trial proceedings.

The Relative Success of the Parties at Trial

[12] As noted above, argument of the legal issues was divided such that parenting issues were argued and determined first followed by the financial issues. The reasoning for the separation of the issues was that determination of the parenting issues substantially affected determination of the financial issues.

[13] The parties’ relative success with respect to each of the issues, in my opinion was divided. The Respondent father was more successful with respect to the parenting issues and the Applicant mother was more successful with respect to the financial issues.

[14] The question to be determined by me is how this divided success translates in relation to a costs award between the parties.

The Positions of the Parties Regarding Costs

[15] The Applicant submits that as the majority of the financial issues flow from parenting issues a mathematical approach in determining the amount of trial days spent on each issue would be unacceptable, would not provide a “holistic” view, nor would it serve the interests of justice.

[16] The Applicant submits that on balance she was the more successful party and seeks costs in an amount to be determined by me at a rate slightly lower than partial indemnity (with full recovery being $172,535) as neither party was completely successful at trial.

[17] The Respondent submits that the majority of the time spent at trial was focused on parenting issues. The Respondent submits that the parenting issues drove the trial and once resolved, the financial issues were quite trivial. The Respondent “believes” that approximately 80% of the total costs claimed should be attributable to the parenting issues. The Respondent suggests that this is a “best guess” at time spent as opposed to a scientific apportionment.

[18] The Respondent seeks costs fixed at $91,678.92 payable by the Applicant on account of costs for the parenting issues, payable within 30 days.

Cost Considerations

[19] This has been a difficult matter to try and determine. In addition to the usual difficulties involved in a trial of this nature - there was a high level of competitiveness between the parties that seeped into the proceeding. This competitiveness is reflected in the numerous motions brought before me.

[20] Neither party seemed willing to compromise and each always sought the final word. Hence the repetitive Motions and 14B Motions that followed any ruling made by the Court.

[21] Over the course of the proceedings, I had an opportunity to listen, observe and consider the issues that arose between two previously happily married individuals who seemed to be loving model parents to their two sons.

[22] As detailed by the various Reasons for Decision released by me, the parties are both loving parents who should share their children equally without rancour. Further, given the length and history of their relationship, the parties’ assets required equalization, ongoing set-off guideline child support was payable and mid-range spousal support was payable for an indeterminate period.

[23] Determination of these issues between the parties should not have been complicated and the trial and ensuing proceedings should not have imploded into the scorched earth scenario that developed following commencement of the proceedings.

[24] Having observed, read and considered the evidence and submissions of the parties, it is clear that each party contributed to the scorched earth scenario.

[25] Where does this leave me with respect to determining costs of the proceedings?

[26] With respect to the parenting issues I find that the Respondent properly battled for his children. He was the more successful party and the result obtained was in the best interest of the parties.

[27] I also find that the time spent at trial and during argument by both parties relative to the issues was heavily weighted in favour of the parenting issues which is also reflected by the number of witnesses who appeared at trial for the purpose of determining the parenting issues.

[28] With respect to the financial issues I find on balance that the Applicant was the more successful of the parties.

[29] Shortly prior to the commencement of the proceedings, the Applicant filed for bankruptcy which somewhat complicated the financial issues. However, the Applicant was entitled to seek bankruptcy protection and she made appropriate concessions relative to the bankruptcy and financial issues. While much less time was spent on financial issues during the trial proceedings, this was due in part to the very organized and efficient manner in which the Applicant’s counsel managed the financial issues and related documents.

[30] With respect to any offers to settle served, despite offers being exchanged between the parties, given the multiple moving pieces, neither party served an Offer that would attract costs consequences.

[31] As noted by Rule 24(6) of the Family Law Rules where success is divided the court may apportion costs as appropriate.

[32] In setting the amount of costs, I have considered the factors set out at by Rule 24(11) of the Family Law Rules including:

a. The importance, complexity or difficulty of the issues;

b. The reasonableness or unreasonableness of each party’s behaviour in the case;

c. The lawyer’s rates;

d. The time property spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents, and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order; and

e. Any other relevant matter.

[33] Of great importance to the ongoing lives of the parties, in considering any other relevant matter, I have considered that any award of costs WILL upset the very delicate financial situation of the parties and COULD if not tethered in restraint result in an unfair and inequitable result that may lead back to dependency and a fresh support application or motion to change.

Disposition

[34] In the circumstances, having considered the submissions of the parties, the considerations as contained in the Family Law Rules, and the applicable case law, and keeping in mind that success was divided but the issues weighted somewhat unequally, I have determined that the Applicant Elizabeth Heather Lena Lambert shall pay the sum of $22,000, inclusive of HST and disbursements, to the Respondent Eric Norman Peachman on account of partial indemnity costs apportioned as determined by me to be an appropriate award, said amount to be paid within 90 days of today’s date.

[35] These costs are fixed by me based on overall reasonableness and proportionality keeping in mind the principles regarding costs as outlined by the Courts of Justice Act and the Family Law Rules.

Justice S.J. Woodley

Released: March 23, 2018