Court File and Parties

Kingston Court File No.: 220/18 Date: 2020-04-24 Superior Court of Justice - Ontario

Re: Lynne Baribeau, Applicant And Marc Baribeau, Respondent

Before: Madam Justice Deborah Swartz

Counsel: G. Edward Lloyd, Counsel for the Applicant Edward C. Castle, Counsel for the Respondent

Heard: In Chambers (Written Submissions)

Decision on Costs Following Trial

[1] The Baribeau’s trial occurred over 5 days in October 2019 and January 2020. My written decision was provided on February 7, 2020. While there was divided success, on balance I find that the Applicant was the more successful party.

[2] Each party was successful on some issues and failed on others. It was a difficult trial from an evidentiary perspective as each had some trouble establishing the value of various items. The court had difficulty with each of their positions for different reasons. The Respondent had credibility issues in particular with regard to the existence of and valuation of assets. The Applicant’s involvement of the children was problematic. Each were very angry toward the other and made serious allegations of deceitful behavior. They each alleged that the other was attempting to deceive the court.

[3] The issue of child support was a live one at the outset of the trial. And while the Respondent may not have pursued with vigour his claim that the children were estranged by the mother and therefore disentitled to support, the simple fact is that the issue of child support was not formally resolved at the outset of the trial. The Applicant was successful on child support although not on back support and not as to the RESP going into the control of the children. She had to come to the first day of trial court to get the baseline amount of support. This should not have been necessary. The fact that the Respondent acknowledged at the start of the trial that he would pay baseline support, while helpful in decreasing trial time, still left the other side fully prepared (and costed) to engage on this issue. Equally it should not have been necessary to have the court encourage at the trial, the Applicant to agree to a set of disclosure terms from the children relating to their post secondary education.

[4] On spousal support the Applicant was completely successful. This was a significant issue.

[5] On the valuation of assets the court preferred the evidence of the Applicant and although not precise, it was capable of assisting the court in setting a reasonable value for the voluminous chattels, vehicles and boats that were in dispute. On the issue of bank accounts and withdrawals, the court preferred the evidence of the Applicant as well. This had a direct impact on the calculation of the NFP. The Applicant was successful in her position on many of the NFP numbers.

[6] As to equalization, the matrimonial home and the pension, each party “wanted their cake and wanted to eat it too”. The Respondent wanted the house sold and proceeds divided equally and wanted the Applicant compelled to take a pension division at source to satisfy his equalization obligation. The Applicant wanted 100% of the house transferred to her with any shortfall in her equalization entitlement to be paid by way of a pension transfer. She wanted the house and he wanted his equity. He did not want to write her a cheque for anything if he could help it and she wanted 100 % of the equity in the house and did not want to move.

[7] On balance I find that both parties got some of what they wanted on the issue of how to effect the equalization payment. Equalization was determined, the pension utilized in partial satisfaction of that obligation. As to the home, options were given to them in the trial decision for them to each get much of what they wanted, failing which the house was to be sold and any shortfall would come out of the Respondent’s share of the equity.

[8] In the exercise of my discretion under the Courts of Justice Act and noting Rules 24 and 18 of the Family Law Rules, I find that it is fair and reasonable to award costs to the Applicant as the more successful party. I have considered the factors set out in Rule 24 (12) including the party’s behavior, the time spent, offers, fees and expenses. I have looked to these factors and the reasonableness and proportionality of them as they relate to the importance of the issues to the parties and the legal complexity of the matter.

[9] I have no criticism of counsel’s hourly rates or the disbursements incurred. I note however the difference in the total fees incurred by counsel which is significant and by my count in excess of $20,000.00. I find that the total fees of the Applicant while at the higher end of what one might see in this type of case, have been increased as a result of the efforts needed to value many of the chattels and assets of the Respondent who failed to do so in a convincing way. This was evident at the trial. I note that secretary time and clerk time are included in the costs. While these do not increase the bill substantially, I am unprepared to include them in considering what is a reasonable cost order in this matter. This was not a complex legal file. There were no novel legal issues for counsel to tackle. This was a high conflict file. The matter was however, very important to the parties, both of whom demonstrated clearly at the trial the level of commitment they each had to their conflict.

[10] I have reviewed the offers to settle referenced by counsel. It is difficult to unravel who was more or less successful on each of the issues especially where the offers were not severable. Even when I examine the charts prepared by counsel which outline their views on success or failure, I am unable to clearly arrive at a winner or loser on many of the issues. The fact that counsel felt the need to provide charts, while appreciated by the court, is often in my view one of the best indicators of mixed success. The clearest success was on spousal support. The Respondent acknowledges this.

[11] The Respondent asserts that he was the more successful party and that he be awarded $25,000.00 in costs which represents approximately 50% of his total bill. I do not accept his definition of success. He is clearly aware that the costs of this trial were at least $50,000.00. He knew or ought to have known the minimum cost consequences should he be unsuccessful on some or all issues.

[12] The caselaw is clear that modern costs rules are to partially indemnify successful parties, encourage settlements, and discourage and sanction inappropriate behavior. The primary objective of the Rules is also to be met, in that cases are to be dealt with justly.

[13] While there is a presumption that a successful party is entitled to costs, the caselaw is clear that a costs award must be a fair and reasonable amount rather than an exact measure of actual costs. It is therefore helpful to examine what each of the parties paid in legal costs. However, this is not a simple mathematical exercise as we know from the Court of Appeal in the Boucher case (Boucher v. Boucher).

[14] In this situation of mixed success, Rule 24(6) provides that the court may exercise its discretion to order and apportion costs. The caselaw sets out that this must involve a contextual analysis of the matter. Upon review of the circumstances of this case I find on balance and in the exercise of my discretion that costs of $25,000.00 inclusive, payable by the Respondent to the Applicant are fair and reasonable.

[15] When one removes the secretarial/clerk time from the Applicant’s bill and looks to the partial indemnity figure requested, then noting the three main issues (child support – conceded by Respondent but at trial, spousal support – Applicant succeeds, and chattels/equalization – mixed success), I find this to be proportional and reasonable in this case.

[16] I have considered the Respondent’s submission that he may have difficulty paying a cost order. I have reviewed his submissions which confirm that he earns just shy of $100,000.00 per year along with his submission that $25,000.00 ought to be paid by the Applicant in costs. His submissions also confirm that the Applicant earns approximately $56,000.00 per year – significantly less than what he earns. I struggle to reconcile how it is that the Respondent feels that it might be fair and reasonable to ask someone earning $56,000.00 per year to pay a cost order of $25,000.00 while at the same time asserting that he himself, earning significantly more, cannot pay costs.

[17] I do not accept his position nor do I accept that it is proportional to deny the Applicant a reasonable cost order in light of her conduct involving the children in the conflict. The conduct of the Applicant has not risen to level that I would deny her some reasonable compensation for costs that reflects the divided success of this matter. I do accept the Respondent’s assertion that $25,000.00 is a reasonable figure to consider in quantifying costs.

[18] Therefore, in the exercise of my discretion in the circumstances of this case, and in contemplation of the fundamental purposes of a cost award, an order is granted that the Respondent shall pay the Applicant costs of $25,000.00 inclusive.

[19] This order takes effect immediately and is signed electronically because of the COVID-19 emergency. This order is enforceable without the present need for a signed and entered formal order. Once the court resumes normal operations a copy of this order shall be filed with the court. This order is an effective and binding order through its issuance under my electronic signature and email, a copy of which is being sent to the Trial Coordinator.

Date: April 24, 2020 Madam Justice Deborah Swartz