Court File and Parties

COURT FILE NO.: Brockville 17-425 DATE: 2020/06/15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

April May Price Applicant – and – Sean Peter Andrew Price Respondent

Counsel: Angus Bickerton, Counsel for the Applicant Self-Represented Litigant

HEARD: By written submissions

leroy, j.

Costs Ruling

Introduction

[1] I ruled on the contested substantive issues between the parties on a final basis on March 12, 2020. This was in the context of a summary judgment motion brought by the applicant, first returnable on October 4, 2019. I reserved on the costs issue pending written submissions.

[2] The contested issues involved property valuations, date of separation and how that affected equalization of their net family property.

[3] The applicant’s claims set out in the summary judgment notice of motion were for findings of fact that:

i. Their date of separation was March 10, 2016 rather than September 2013 as asserted by the respondent;

ii. The value of the matrimonial home should be set at $391,000 rather that the value appraised on August 8, 2019 of $295,000; - the applicant laments the late delivery of the more recent valuation alleged to be short-served before October 4, 2019;

iii. The respondent’s date-of-marriage deduction claims of cash ($95,000), building materials ($65,000) both incorporated into the matrimonial home and land occupied by the matrimonial home are not deductible from the respondent’s net family property;

iv. The date-of-marriage value of the respondent’s vacant land in South Frontenac be valued at $0.00 after deducting the outstanding mortgage registered against it at the time. Further, the parties did not agree on the date-of-separation value. The respondent held to the MPAC market value of $46,500 until following the first return of the motion notwithstanding that on June 24, 2019, he received an opinion valuing it at $75,000;

v. The respondent’s claim for deduction of the value of his tools at date of marriage be denied for want evidence of value at the time or at date of separation – he had the same tools on both dates;

vi. The value of the respondent’s truck and car at date of marriage were $15,000 and $6,000 respectively – resolved on consent;

vii. The value of the applicant’s vehicle at date of marriage was $6,000 – resolved on consent;

viii. The CRA lien registered against the matrimonial home at the date of separation was $93,554 – resolved on consent;

ix. The value of the respondent’s interest in the Sure Fire Cube business be set at $416,666;

[4] The applicant sought an order requiring the respondent to pay her the sum of $1,000 to pay for an independent date of separation appraisal of the value of the vacant land in South Frontenac.

[5] To my knowledge, neither served offers to settle in accordance with Rule 18(4) or if they did, neither party is in a position to argue that the outcome after judgment is as favourable as the offer made.

[6] The applicant served the motion for summary judgment on the respondent on September 13, 2019. The respondent did not deliver meaningful response materials.

[7] On the first return October 4th, 2019, the date of separation was found to be March 10, 2016. The respondent was directed to:

i. produce evidence to substantiate pre-marital assets or alternatively confirmation from the bank it does not retain records that far back in time on or before October 21, 2019;

ii. Immediately provide an authorization and direction to authorize counsel and property valuators to communicate among themselves about the market valuation discrepancies for the matrimonial home;

iii. Provide the receipt books for the Sure Fire Cube business on or before Octo21, 2019 and immediate authorization for counsel for the applicant to communicate with the respondent’s associate in the business regarding its value.

[8] In that context, there was consensus more information was required to inform a just disposition. The motion was adjourned to October 24, 2019 and costs were reserved. At the request of the parties on consent, the motion was put over to March 12, 2020.

[9] The investigation carried on by the parties between October and March narrowed the issues considerably.

Values were set as follows:

Matrimonial home - $275,000 - consensually;

Respondent’s vacant land in South Frontenac - $102,000 – half the difference in the two appraisals – by my order;

Respondent’s interest in Sure Fire Cube - $1,500 – consensually.

[10] The equalization payment owing by Respondent was calculated to be $57,703 if the respondent is unable to obtain a discharge of the applicant’s matrimonial home mortgage covenant or $23,703 if he succeeds.

Position of the Parties on costs

[11] The applicant argues that as the successful party, she is entitled to costs of the summary judgment motion in the amount of $16,203.

[12] The respondent claims success, denies the value of the work claimed on behalf of the applicant and seeks costs of $12,807.

Discussion and conclusion

[13] At the center of the applicant’s disquiet regarding the respondent’s conduct of his part of the case, is the assertion the respondent concealed the value of properties under his control until pressed.

[14] The Court agrees with the value of timely disclosure in the course of litigation. The ONCA recently opined on the issue of nondisclosure in family law in Leitch v. Novac 2020 OCA 257 at paragraph 44 as follows:

As the Supreme Court suggested in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 34, nondisclosure is the cancer of family law. This is an apt metaphor. Nondisclosure metastasizes and impacts all participants in the family law process. Lawyers for recipients cannot adequately advise their clients, while lawyers for payors become unwitting participants in a fraud on the court. Judges cannot correctly guide the parties to a fair resolution at family law conferences and cannot make a proper decision at trial. Payees are forced to accept an arbitrary amount of support unilaterally determined by the payor. Children must make do with less. All this to avoid legal obligations, which have been calculated to be a fair quantification of the payor's required financial contribution. In sum, nondisclosure is antithetical to the policy animating the family law regime and to the processes that have been carefully designed to achieve those policy goals.

[15] The same policy sentiment applies to equalization disclosure: As Fraser J. wrote in Cunha v. Cunha (1994), 99 B.C.L.R. (2d) 93 (S.C.), at para. 9:

Non-disclosure of assets is the cancer of matrimonial property litigation. It discourages settlement or promotes settlements which are inadequate. It increases the time and expense of litigation. The prolonged stress of unnecessary battle may lead weary and drained women simply to give up and walk away with only a share of the assets they know about, taking with them the bitter aftertaste of a reasonably-based suspicion that justice was not done.

[16] Our courts have as well noted recently that rhetorical excess is the enemy of good advocacy. It engenders emotional reasoning.

[17] Justice Marvin Kurz wrote the following recently in Alsawwah v. Afifi, 2020 ONSC 2883 at paragraph 108:

“In the hopes of lowering the rhetorical temperature of the future materials of these parties and perhaps those of others who will come before the court, I repeat these essential facts, often stated by my colleagues at all levels of court, but which bear constant repetition: The writer has referenced only those subparagraphs applicable to the case at bar.

1. Evidence regarding a former spouse’s moral failings is rarely relevant to the issues before the court.
2. Nor are we swayed by rhetoric against the other party that verges on agitprop.
3. Exaggeration is the enemy of credibility. As it is often said, one never gets a second chance to make a first impression. If that impression, arising from a parties’ materials or argument, is one of embellishment, that impression will colour everything that emanates from that party or their counsel.
4. Facts win cases. A pebble of proof is worth a mountain of innuendo or bald allegation.
5. Relevance matters. If the court is dealing with, say an issue regarding parenting, allegations of a party’s failures regarding collateral issues, say their stinginess or the paucity of their financial disclosure, are irrelevant and counter-productive. They do not reveal the dark soul of the other side or turn the court against the allegedly offending spouse. Rather, they demonstrate that the party or their counsel is unable to focus on the issue at hand. Often those materials backfire leading the court to place greater trust in the other side.
6. One key to success in family law as in other areas of law is the race to the moral high ground. Courts appreciate those parties and counsel who demonstrate their commitment to that high ground in both the framing and presentation of their case.
7. While dealing with that moral high ground, many capable counsel advise their clients against “me-too” ism. One side’s failure to obey a court order or produce necessary disclosure does not give licence to the other side to do the same. Just because the materials of one side are incendiary or prolix, that does not mean that the other side is required to respond in kind. Judges are usually aware when a party has crossed the line. Showing that you or your client does not do the same is both the ethical and the smart thing to do.

Turning to Rule 24

[18] There is a presumption that a successful party is entitled to the costs of a motion. Success can be measured in different ways. One irony/paradox in the file review is that the respondent’s valuations were materially closer to reality than the applicant’s, yet he was slow/reluctant to chase down credible independent evidence to validate. On the one hand, the applicant obtained a final equalization judgment based on reasonably reliable valuations, some which were marshalled after the October 2019 attendance. On the other hand, the respondent obtained an equalization payment obligation significantly lower than that sought by the applicant aligned with his sense of valuations.

[19] Despite the presumption, a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. In deciding whether a party has behaved unreasonably or reasonably, the Court shall examine the party’s behaviour in relation to issues from the time they arose, including whether they made an offer to settle.

[20] The onus is on the party asserting the value of an asset he or she controls to provide credible evidence as to its value – Homsi v. Zaya, 2009 ONCA 322.

[21] Rule 24(7) provides that a party who appears at a step in a case not properly prepared to deal with the issues at that step, the Court shall award costs against that party unless the Court orders otherwise in the interests of justice.

[22] The following incidents in the case are raised by the applicant as evidence of unreasonable behaviour by the respondent:

i. That the respondent had an updated professional appraisal of the value of the matrimonial home approximately one month before the October 4, 2019 return on the motion for summary judgment, yet served it on the applicant only days before the return. The applicant laments the resulting delay in conclusion of the file.

The respondent in response notes that he served a mortgage appraisal for the same property dated June 27, 2017, setting the fair market value at $391,000. Although this was a mortgage appraisal owned by the lender, at the least it was a credible basis for discussion. Neither side was content with this valuation. The applicant did not commission an appraisal of the home. The respondent commissioned a professional appraisal in August 2019, he says was delivered ten days before the October summary trial return. The valuation emanating from this document was $295,000. As the result of this value discrepancy, the applicant needed time to commission its own appraisal of the matrimonial home after the first return. It came in at $275,000. This was a material reduction in the applicant’s equalization aspirations.

ii. That the respondent persisted with reliance on the MPAC market value ascribed to the vacant land in South Frontenac of $46,500 through to October 24, 2019, notwithstanding opinions of value obtained June 24, 2019 at the behest of the applicant in the amount of $139,000 and another at the behest of the respondent in the amount of $75,000. It is noted that the applicant stood firm on her realtor’s valuation through to March 2020.

iii. That the respondent advanced claims for date of marriage assets including bank deposits, lumber and tools for which he could not obtain credible evidence in support. I take notice that banking institutions do not maintain records indefinitely for their clients so that the respondent would be unable to substantiate this claim without a copy of his bank records from that time. In any event, the lumber and bank account content converted into the matrimonial home and were lost as deductions. They were non-issues.

iv. The same with the tools. As I understand it, he had the same or similar tools at date of separation.

x. The respondent refused to recognize March 10, 2016 as the date of separation until I ruled on it. The date of separation became an issue only because it was in the contested interval that the respondent invented the Sure Fire Cube. As noted, the applicant, based on unreliable misinformation and the emotional assumption the respondent was misrepresenting value, asked the Court to value the respondent’s interest in this business in the amount of 416,666 for equalization purposes. That it turned out to be $1,500 resulted in a material reduction in the applicant’s equalization aspirations.

xi. The respondent delivered numerous conflicting financial statements “designed to minimize the equalization payment owing and minimizing income earned to ludicrous levels.” The summary trial was made necessary due to the “ truculent refusal” of the respondent to provide full and frank disclosure.

The rhetoric is unhelpful. That said, the Court agrees that the procedure to bring the application to an end was proportionately excessive having regard to the amounts involved. A good part of that resulted from deficits in the respondent’s handling of his litigation responsibilities.

I don’t agree with applicant counsel’s submissions in reply that “this conduct made a mockery of the basic underpinnings of the civil court systems going back hundreds of year, and the black letter of the law of the Family Law Rules, the Rules of Civil Procedure and the Courts of Justice Act.”

It is manifest that the applicant’s valuation claims over-reached reality in quantum fashion.

Although the Court cannot and does not condone intransigency in productions; however, it is common experience for respondents who sense they are not being heard to turtle. I was not part of the file ahead of the appearances and responses thereto as part of the summary judgment motion so I can’t speak to who was driving the rancour. I can say the parties were appropriately respectful of the court and process once the motion commenced.

xii. The respondent did not deliver response materials to the motion for summary trial. He should have. That said, there is no rule that a trial needs to be conducted synchronistically. In the end, after a brief adjournment so the missing information could be marshalled, I believe the parties and Court were confident in the resolution of the legal issues and in the reliability of the information before the Court.

[23] I accept that the utility of conferencing the file, where the Court’s authority to make legal and factual rulings is constrained, had exhausted and to get over the finish line a focussed motion was required. The parties were unable to settle on property valuations and they were at a procedural impasse.

[24] As often happens when one party is unrepresented, it fell to applicant’s counsel to move the file. He is bound as officer of the court to advance the best case on the motion. He is expected to deliver up-to-date evidence – affidavit, financial statement, factum and, if necessary, brief of authorities. This is expensive. In the end, the parties enjoyed or suffered partial success. Without Mr. Bickerton’s initiative, the file would be languishing without resolution today.

[25] I am alert to the respondent’s denial of the efficacy of certain steps depicted in the bill of costs, including the questioning and transcripts, Teraview, and appraisals. I would tend to agree with the irrelevance of the questioning expenses except that that is where the litigation turned hyper-contentious. It set the context for the ensuing distrust and emotional reasoning that followed all the way to March 2020. Once something that should not have been said is out, it cannot be taken back.

[26] The applicant was entitled to commission her own appraisals. Teraview is a legitimate disbursement in these cases.

[27] The parties are of limited means. Few have the resources to fund family litigation. The quest is for dispassionate efficacy. Costs awards are a means to demonstrate the value of rational realistic case assessment and to remind litigants of the merit of compromise. Both sides in the case at bar could have been more realistic along the way.

[28] Given the divided success and recognizing both sides contributed to the impasse, although in different ways, I’ve determined to exercise my discretion on the basis the parties ought to share the costs of the motion equally. The applicant’s disbursements total $3,745. The respondent’s disbursements total $1,910. Mr. Bickerton billed the sum of $14,286 for the motion.

[29] The respondent’s share calculated as ((3745-1910)/2 +14286)/2 = $8,060. Accordingly, the applicant shall have costs fixed against the respondent in the amount of $8,060 payable forthwith. Order to issue.

The Honourable Mr. Justice Rick Leroy Released: June 15, 2020