Calver v. Calver, 2019 ONSC 7317

COURT FILE NO.: 17-0649

DATE: 20191216

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JILL MAUREEN CALVER

Applicant

– and –

MATTHEW JAMES KENNETH CALVER

Respondent

Matthew E. Wright, for the Applicant

G. Edward Lloyd, for the Respondent

RULING ON COSTS

PEDLAR J.

Background

1I opened and closed my reasons for judgment in this file expressing my deep concern about the way this action has been litigated. Given the results of the trial, those concerns are now at the forefront of this Ruling on Costs. In paragraph 1 of my Reasons for Judgment herein, I stated as follows:

1This is a case about the sharing of property between the parties after their marriage had failed. It is a rather unfortunate example of a family law case where the process has taken over, to the detriment of both parties. These parties and these issues have been overburdened by the crushing weight of a 9-day trial in Superior Court, with the accompanied huge risk of costs and the less easily calculated but undeniable expense of the stress on both parties.

2At paragraph 92 and following, I, again, stated similar concerns:

92I would close by repeating my comments made during the trial and comments that were probably heard from other judges along the way through the various conferences that took place. This appears to me to be a piece of family law litigation that took on a life of its own that was unreasonable and unnecessarily complicated, stressful and expensive for the parties. In matters of this type, it makes much more sense to look at the whole picture and broad stroke the issues and resolve the matter in a principled, practical way rather than litigation of this duration and complexity.

93This is an exception to the normal course of family law litigation, which was not warranted given the issues and the amount of money realistically at stake between the parties. With a calm, dispassionate and reasoned view of the total picture, it would have made much more sense to resolve this matter before engaging in what has been litigation for nine days in Superior Court, with thousands of pieces of paper filed and the applicant required to travel back and forth from Alberta to Ontario on more than one occasion.

94I can hardly overstate how far from usual this trial has been over these types of issues. Not only is it detrimental to the parties themselves but our system of resolving these property issues would collapse under the weight of this kind of litigation. It is time consuming and counter-productive to litigate at this level.

3The applicant herein claimed $450,000. She was awarded $83,851.40, being approximately 18% of her total claim. The applicant’s offer to settle, served prior to trial, was for payment of $300,000. She was awarded approximately 28% of that claim.

4The respondent herein served an offer to settle prior to trial in the amount of $9,000. In my view, neither of those offers were reasonable given the outcome of the trial.

5The applicant’s claims for unjust enrichment, constructive trust, proprietary estoppel, loss of future income and compensation for emotional and physical damages related to her role in pursuing IVF treatments were all dismissed.

6The applicant’s claim for an unequal division of the net family property was successful, as being an unconscionable result if the respondent received the full benefit of having the “Napanee” properties free and clear as the result of a joint venture in which both parties were involved in financing the purchase of a working dairy farm. During the financing of that joint venture, the lending institution insisted that their loan, with the exception of a tractor debt owed by the respondent, would be the only secured debt owed by the parties. The breakdown of the marriage resulted in the necessity of selling the dairy farm.

7For the reasons stated in the judgment, specifically at paragraph 86 and beyond, the applicant was granted a one-half interest in the increase in value of those Napanee properties during the course of the marriage. Taking into account the respondent’s NFP calculations, which were found to be accurate, the applicant was granted $83,851.40, payable to her by the respondent.

8These parties were married for four years. Their relationship lasted approximately eight years. That relationship had its challenges and strengths both leading up to and during the course of the marriage. The equalization process itself was found to lead to an unconscionable result. The respondent’s conduct was not found to be shocking or unconscionable. Both parties worked hard and contributed much in attempting to make the marriage work, on both a personal and business level, ultimately without succeeding.

9The applicant, in any proceeding of this nature, chooses the remedies to be sought. It was the choice to seek multiple remedies that led to the case being over-litigated. Without those claims for extraordinary remedies, I agree with the submission of counsel for the respondent that, this matter could have been dealt with in one day to one and a half days of court time. The facts surrounding the NFP claim were basically admitted. There was no real dispute about each party’s role in that joint venture that resulted in the paying off of debts for both of them. There was no dispute about the applicant’s financial contributions to the joint venture from the proceeds of the sale of her home in Red Deer Alberta. There was no real debate about the fact that the applicant had carried the major, if not entire, costs of the IVF treatments for seven years. There was no dispute that when she moved from Alberta to Ontario, she kept her option of returning to her former employment in Alberta open.

10There was no dispute that it was the applicant’s determination, knowledge and sweat equity that allowed the dairy farm to recover from a potentially disastrous fire, set by an arsonist, resulting in the loss of their dairy barn and virtually irreplaceable high-quality dairy cattle. The applicant had no complaints about the respondent’s participation in that dairy operation, once she arrived from Alberta approximately three months after they took over the full-time operation of the farm. It was primarily through the work of the respondent that the dairy farm sold for $2.4 million when it had been purchased for $1.8 million just two years before. Both parties benefited financially from his considerable efforts during that time.

The Law

11Given all the circumstances set out above and detailed in the decision at trial, the most relevant portions of Rule 57.01 relating to costs of proceedings and the exercise of discretion by the court are as follows:

57.01(1) Factors in discretion – In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(i) any other matter relevant to the question of costs.

(2) Costs against successful party – The fact that a party is successful in a proceeding or a step in a proceeding does not prevent the court from awarding costs against the party in a propery case.

Analysis

12I find that the offers by either party where not reasonable in order to avoid a trial. The claim for costs of each party, recognizing that the applicant has moderated her claim in view of the modest results of the judgment, are reasonable. The amount claimed and the amount recovered in the proceeding by the applicant are very far apart with the recovery of less than 20% of the claim.

13I find the apportionment of liability is directly related to the number of claims by the applicant that were dismissed as well as the one claim that was allowed. The proceedings were made unreasonably complex by the number of unsuccessful claims. The issues are important, but should have been narrowed. I find the conduct of the applicant tended to lengthen unnecessarily the duration of the proceeding that should have taken a day to one day and a half, at most, ended up taking nine days of court time. I find that claiming those extraordinary remedies, that were all dismissed, was unnecessary and resulted in an exceptional example of over litigation in circumstances where it was clearly unwarranted.

14I find that another relevant issue to the question of costs is that the respondent was therefore required to address a range of claims and review an unreasonable amount of paper filed by the applicant, in order to defend himself. There were literally thousands of pages of paper filed, going well beyond anything reasonable, or that I have experienced in litigation of this type as I approach 50 years of experience combined in practice as a litigator and a judge. In the context of this particular family, the issue of proportionality is significant in terms of what could have reasonably been expected as a result and incurring the extreme risk of a significant cost award by choosing to go forward with several risky claims, none of which were successful.

Disposition

15I find that the applicant was successful in her claim for an uneven share of the NFP in the amount awarded. I also find that the evidence and argument to conclude that portion of the action would have taken no more than one to one and a half days out of the nine days of trial. I, therefore, award the applicant her costs for that time, being approximately 16% of the claim. Her total claim for costs is in the amount of $84,750 and I therefore award her $13,560 of her costs. The respondent was successful in defending all other claims, as set out above and in the judgment herein. He is therefore awarded 84% of his party and party costs of $112,883.90 for a total of $94,822.47 costs in this action. Setting off those two claims, the applicant owes the respondent $81,262.47 in costs.

16That amount is to be credited to the respondent to reduce the award of $83,851.40 owed to the applicant by the respondent as awarded in the judgment to a final amount of $2,588.93 owed by the respondent to the applicant to satisfy the judgment herein. That amount is payable forthwith.

17Fortunately, this case is extremely rare in its result of costing the applicant and respondent a great deal of money for virtually no gain. I hope that they can put this very frustrating and difficult experience behind them and move ahead with their lives. They both have the capacity to recover financially and personally over time. It will take time for both feelings and finances to heal. I encourage each of them to look beyond the cost and heartache of this failed relationship with hope for better days ahead.

The Honourable Mr. Justice K. E. Pedlar