COURT FILE NO.: 23210/01

DATE: 2019 01 09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IAN DAVID KIRBY, Applicant AND: KATHERINE LYNN KIRBY, Respondent

BEFORE: Conlan J.

COUNSEL: Melissa J. Fedsin, Counsel for the Applicant Katherine Lynn Kirby, Self-Represented Respondent

REASONS FOR DECISION ON COSTS

I. Introduction

A New Year

1It is 2019, and Ian and Katherine Kirby, after 17 years, have a Final Order in their marathon matrimonial struggle.

2There is one more battle to fight, however - costs.

The Judgment

3The trial, more like a sentence than a sojourn, lasted ten days. Katherine acted for herself, and she is responsible for much of the prolongation of the hearing.

4The issues at trial were: (i) a divorce, (ii) spousal support, retroactive and ongoing, (iii) child support, including section 7 expenses, retroactive and ongoing, (iv) equalization of net family property (including Ian’s pension), (v) occupation rent, and (vi) the net proceeds of sale of the matrimonial home.

5The divorce was agreed upon.

6On spousal support, Ian was unsuccessful on his arguments regarding imputation of income to Katherine and an immediate termination of support payments to her. Katherine was also unsuccessful on her arguments for retroactive support and an increase in the quantum going forward. Thus, success was mixed on the issue of spousal support.

7On child support, Ian was unsuccessful regarding his claim for retroactive payments to him (both in terms of base support and section 7s). He was also unsuccessful in requesting future support to be paid by Katherine. Overall, Katherine was more successful than Ian regarding child support.

8On equalization of net family property, Ian was nearly entirely successful.

9On occupation rent, there was mixed success. Ian’s claim for rent was dismissed, but Katherine’s claim for post-separation expenses for the matrimonial home was also dismissed.

10Finally, on what to do with the net proceeds of sale of the matrimonial home currently being held in trust, Ian was successful.

11In the end, neither party was wholly successful after trial. Success was divided, but it can safely be said that Ian was more successful than Katherine.

Some General Observations

12As to which party is more deserving of costs, there is no doubt that it is Ian.

13The proliferation of self-represented litigants in family law cases is here to stay. I suspect that there are many reasons for that: cuts to legal aid services, the self-help resorted to on the world wide web, and (let us not be so naïve to ignore) the voluntary choice by some litigants to act for themselves because they think that the judge will be forced into being their advocate.

14With respect to the latter category of self-represented litigants, it is time that we recognize that there are some (not most, maybe even not many) persons who can readily afford legal counsel but simply choose to act for themselves because they think that it will provide them a tactical edge in the courtroom. It will cause the presiding judicial official to go overboard with assistance, not just procedurally but substantively, or so goes the rationale.

15There is nothing wrong with self-representation. What is wrong, though, is hijacking the proceeding at the expense of the other side (who has counsel) and then expecting mercy from the court when it comes to deciding costs.

16We do not have two sets of rules and principles for costs in family litigation – one for those who hire lawyers and one for those who act for themselves.

17The principles apply to both types of litigants: (i) in deciding entitlement to costs, consider the presumption that a successful party deserves some costs, and consider the factors outlined in the Family Law Rules, and take into account any other relevant circumstance; (ii) in deciding quantum of costs, remember the basic tenet that the goal is to achieve something that is fair, just and reasonable, and keep in mind the prudent expectations of the parties, and pay attention to the importance of proportionality, and assess (but do not dissect line by line) the reasonableness of the time spent and the fees and disbursements charged.

18Above all, place some emphasis on why we award costs to begin with – to partially indemnify successful litigants, and to encourage settlement (even where the final result was worse than what the party offered to settle for), and to sanction and deter inappropriate conduct by litigants (even behaviour that falls short of “bad faith”).

19The process by which we decide costs is not science. It is more artful than that. Consequently, there is an inescapable degree of arbitrariness to any costs award. To pretend otherwise, I respectfully suggest, is a little rich.

II. Analysis

20Katherine has not filed any submissions on costs (the reader is directed to the postscript below). The time for her to have done so has expired. This Court extended to her a few days of extra time before preparing its decision.

21Ian, through his counsel, has filed dense submissions. He seeks partial recovery of costs charged by his former lawyer ($22,500.00), plus reimbursement for fees paid for a professional parenting assessment ($7500.00), plus full recovery of costs incurred between 2016 and October 2018 ($99,457.50), plus full recovery of costs for the trial itself ($67,910.74), plus disbursements ($12,886.25), plus half of what was paid by Ian to obtain the divorce ($1500.00 plus tax), plus (what I call) costs on costs ($4500.00 plus tax), for a total of more than $216,000.00.

22I find that Ian is certainly entitled to some costs. Overall, he was more successful after trial than Katherine was. Further, he made greater efforts than Katherine did to settle the case without having to endure a trial. And, finally, compared to Katherine, he was better prepared for and behaved much more admirably during the trial.

23On quantum, I decline to order any amount of costs for anything that pre-dates 2016. This file languished for years and years, and Ian is just as responsible for that as Katherine is. I am not about to reward that by examining previous lawyer’s accounts starting 17 years ago.

24From 2016 onwards, Ian’s actual costs total $190,438.63. Nine Court attendances occurred between the spring of 2017 and September 2018, before the trial started. During that time frame, Katherine was very difficult to deal with. Unreasonably so. For example, despite her claim that she was essentially destitute, she fought tooth and nail the sale of the Oakville home.

25Katherine’s unreasonableness continued during the trial itself. For example, she made wild allegations, for the first time, of being raped by Ian. She failed, without reasonable excuse, to comply with a prior Court Order made by Justice Miller regarding the delivery of expert reports. She single-handedly caused the hearing to be significantly longer than it should have been.

26I agree with Ms. Fedsin that this case ought to have never went to trial. Katherine should have accepted Ian’s Offer to Settle dated October 15, 2018. Overall, acceptance of that Offer would have resulted in Katherine being better-off financially than she is as a result of the Judgment. And she would have had zero exposure related to costs and another ten months of spousal support so that she could manage her affairs (which, unbeknownst to Ian, included a massive amount of inheritance money).

27Whether susceptible to being pigeon-holed as “bad faith” or not, so as to attract Rule 24(8) [of the Family Law Rules], the conduct of Katherine over the last two years or so is worthy of serious condemnation by this Court. Awarding to Ian every cent of the $190,438.63 is in the cards.

28My only trepidation in doing so is that Katherine is, indeed, mentally ill. Her family physician’s evidence at trial confirms that. I am not sure how much of Katherine’s unreasonableness is due to her psychological issues. I am prepared to accept that some of it must be.

29Hence, rather than full recovery of costs from 2016 to date, I have decided to reduce the $190,438.63 to $150,000.00 even. The end result is enhanced substantial indemnity recovery for that time period (about 78%).

III. Conclusion

30This Court orders that Katherine shall pay to Ian, forthwith, costs in the total all-inclusive amount of $150,000.00.

31This Court orders, further, that 100 per cent of the costs ordered herein, plus all outstanding costs Orders made previously in this proceeding (including during the trial itself) against Katherine, shall be satisfied by immediate payment-out from Katherine’s share of the net proceeds of sale of the matrimonial home.

32For clarity, those net proceeds of sale are currently being held in trust. Katherine would otherwise be due to receive 50% of $355,000.00. She shall now receive whatever is left over.

Postscript: after preparing these Reasons, but before they were released, in the afternoon of January 9th, several days after they were due, Katherine filed her written submissions on costs. Against my better judgment, out of courtesy to Katherine, I read them in their entirety. My decision above stands unaltered.

Katherine’s submissions are too long and in violation of this Court’s express directions at clauses 137 and 138 of the Reasons for Judgment.

Katherine’s submissions are difficult to understand in that they encompass a draft Order that is ten pages in length, with 27 heads of relief being claimed. Some of the relief claimed has nothing to do with costs and attempts to alter parts of the Judgment itself, such as the request for lump-sum spousal support in the amount of $50,000.00 to be paid by Ian to Katherine forthwith. Some of the relief claimed constitutes argument, similar to what one might find in a factum, for example.

Katherine’s submissions are unclear as to what she wants this Court to do. In essence, I have taken the liberty of assuming that her penultimate submission is captured at clause 23 of her draft Order: Ian should pay all or most of his own legal costs. I disagree. He will certainly have to pay some of his own legal costs as a result of the above decision.

Katherine’s submissions do contain something that is relevant – a copy of her Offer to Settle dated August 31, 2018 (before the trial started). Reading the said document as generously as possible for Katherine, it is clear that the Offer was not met or exceeded by her after trial. It would have had her receiving all of the net proceeds of sale of the matrimonial home ($355,000.00), less closing costs, plus half of Ian’s CPP credits over the 19 years of marriage. As well, Ian would have had to forego all prior costs Orders in his favour, and have all of his legal claims dismissed, and Ian would have had to expend the work and the money on his own to obtain the divorce. Also, to take advantage of the no costs provision in the Offer, Ian had to accept it by September 1st (the next day).

Katherine should be commended for having made any settlement offer at all, however, this Court’s decision on costs is not impacted by her August 31, 2018 Offer.

There is simply no merit to Katherine’s implied submission that there ought to be no costs or only a modest costs award made in favour of Ian.

This Court appreciates receiving Katherine’s submissions. The best decisions are always those that take into account both sides. Now we can say that has been done.

Conlan J.