Diamond v. Berman, 2020 ONSC 4301

NEWMARKET COURT FILE NO.: FC-17-55201-00 DATE: 20200716 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Alyssa Beth Diamond, Applicant AND: Wayne Mark Berman, Respondent

BEFORE: The Honourable Justice H. McGee

COUNSEL: M. Greenstein, A. Krol and K. Hunter, Counsel for the Applicant D. Sherr, Counsel for the Respondent

RULING ON COSTS

Overview

[1] Ms. Diamond asks for full recovery of $348,624 in counsel and expert fees, disbursements and HST spent on this proceeding, from her first phone call to counsel in January of 2017 to the end of an 11-day trial heard in the period between November 27, 2019 and February 4, 2020. My final reasons were released March 16, 2020 and costs submissions were deferred until after the expected return to operations on June 2, 2020, and then further delayed pending my decision on a post-trial 14B Motion brought by Mr. Berman.

[2] Ms. Diamond was successful on the key issues of entitlement to spousal support, income for support purposes and the division of pension credits, obtaining final Orders that were more favourable than her much earlier Offers to Settle. Mr. Berman argues that because he was successful on two corollary matters, overall success was divided per Rule 24(6) of the Family Law Rules, and that his efforts to resolve matters after the start of trial entitle him to costs of $74,623.

[3] In the reasons that follow, I first address the preliminary issue of whether to accept the whole of Mr. Berman’s costs submissions which exceed the prescribed page limit fourfold. I then decide who is entitled to costs, the rate of recovery per Rule 18(14) and the amount of reasonable and proportionate costs given the importance and complexity of the issues per Rule 24(12); taking into account the billing of multiple counsel and whether the failure to accept severable terms of a mid-trial Offer was unreasonable conduct sufficient to deprive Ms. Diamond of part of her costs per Rule 24(4) and (5).

[4] I conclude with an award of $180,800 payable to Ms. Diamond calculated as $160,000 in legal and expert’s fees and disbursements with $20,800 of HST thereon.

Should I Ignore 15 pages of Mr. Berman’s Costs Submissions?

[5] In my final reasons of March 16, 2020, I limited cost submissions to five pages in length, exclusive of Bill(s) of Costs and Offer(s) to Settle.

[6] Ms. Diamond’s counsel complied with the letter of my Endorsement, but the attachments took the number of pages filed from 5 to 147. Mr. Berman countered with a responding 20 pages of submissions and 131 pages of attachments for a total page count of 151.

[7] Ms. Diamond replied to the response with two authorities supporting her proposal that I ignore pages 6-20 of Mr. Berman’s costs submissions. In Kalkanis v. Kalkanis 2014 ONSC 205 both parties exceeded the two-page limit for their submissions on costs. In that case, Justice Healey considered only the first two pages of each party’s costs submissions. In Brown v. Baum 2015 ONSC 2483 counsels were to exchange cost submissions not exceeding four pages. One party provided cost submissions totalling 13 pages, and Justice Graeme Mew considered only the first four pages of those cost submissions.

[8] The purpose of a page limit for any form of submissions in a family law proceeding can be found in Rule 2 of the Family Law Rules.

PRIMARY OBJECTIVE (2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

DEALING WITH CASES JUSTLY (3) Dealing with a case justly includes, (a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

DUTY TO PROMOTE PRIMARY OBJECTIVE (4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).

DUTY TO MANAGE CASES (5) The court shall promote the primary objective by active management of cases, which includes, (a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial; (b) encouraging and facilitating use of alternatives to the court process; (c) helping the parties to settle all or part of the case; (d) setting timetables or otherwise controlling the progress of the case; (e) considering whether the likely benefits of taking a step justify the cost; (f) dealing with as many aspects of the case as possible on the same occasion; and (g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference. O. Reg. 114/99, r. 2 (5).

[9] Setting and enforcing page limits at every step of a proceeding is vital to the active management of cases. Page limits force litigants to distill submissions into prioritized and proportionate summaries that are directly on point. Page limits level the playing field, place checks on the more vociferous litigant and critically, enable courts to control their own processes so that the needs of all users can be met within finite public resources.

[10] Page limits on costs submissions serve an additional purpose: signalling to the parties that this is a supplemental decision, not one that ought to absorb as much of their means as the motion or trial that gave rise to them. Costs are not the event. Costs follow the event.

[11] Parties who thoughtlessly breach page limits or do so as a strategy should anticipate that their excessive materials will be disregarded per Kalkanis, supra, and Brown, supra subject to the discretion of the justice hearing the matter.

[12] Should Mr. Berman’s excess materials be permitted in this decision? I offer some thoughts as to a framework for discretion.

[13] First, the court should take a broad perspective of all the submissions. How much in costs is being proposed or defended by each party? Courts cannot anticipate quantum and there may be thresholds over which longer submissions are justified. Perhaps the size of the claim has made an oral hearing, telephone or videoconference necessary. If so, prudent counsel will seek to vary the scope of submissions in advance by 14B Motion. Second, can the decision be made on the materials provided without prejudice to either party, and the additional costs of redrafting submissions and/or having to attend another event?

[14] Here, the request for $348,624 could not have been anticipated and no doubt, would have induced panic in Mr. Berman. As described in my Ruling, these parties are quintessentially hard-working, middle-class parents who have spent their adult lives curating their income and expenses to achieve modest financial stability. A claim for costs in the range of one’s remaining life savings might well distract from compliance with a page limit.

[15] Nonetheless, Mr. Berman’s submissions exceed what may have been justified and in too many respects, reargue the case.

[16] I have considered requiring that Mr. Berman redraft his materials and/or the parties reattend and make oral submissions, but ultimately decline to do so. In viewing the extent of the detailed materials already before me, the additional cost that further steps would bring, and the ongoing need during this COVID-19 period to carefully manage court resources, I will disregard the excessive and unnecessary portions of Mr. Berman’s response which Ms. Diamond’s counsel has highlighted in her reply. For example, I will disregard why Mr. Berman chose not to accept prior Offers or his explanation as to how he remained “fixed” on certain issues. I will ignore his reporting of confidential mid-trial Settlement Conferences that did not result in a written Offer to Settle.

Successful Party is Entitled to Costs

[17] Rule 24 of the Family Law Rules starts with the presumption that a successful party is entitled to costs. Ms. Diamond was successful on almost all of the issues that were tried and she was wholly successful on the dominant issues: her entitlement to spousal support, a finding that her actual income was her income for support purposes and what was the normal retirement date in the valuation of Mr. Berman’s pension.

[18] There is no question that amongst the issues that were tried, Ms. Diamond’s entitlement to spousal support was the predominant issue.

[19] Mr. Berman’s direct email exchanges with Mr. Greenstein during the fall of 2017 (October 18, 2017, October 28, 2017 and November 1, 2017) are instructive. This was a period during which Mr. Berman had discharged counsel and the parties agreed to engage in mediation. Mr. Berman emailed that he was interested, but not until all his documents - which he was convinced proved a lack of entitlement - were marshalled and convincing to Mr. Greenstein. He insisted on meeting privately with his wife’s lawyer prior to a mediation, writing that “I have a significant amount of info and facts that you clearly cannot be aware of because of your ongoing assumption that Alyssa is entitled to spousal support.”

[20] Although his emails asking for time to “determin[e] which facts we agree on and which we do not” carried a ring of reasonableness, his actions revealed that no facts could persuade him that he should pay spousal support. He was wholly indifferent to any inequities that would flow from a lack of spousal support and firmly resolved that his former spouse could earn more and make do with less.

[21] The writing was on the wall. The only process that would secure Ms. Diamond’s entitlement to spousal support was litigation.

[22] The ensuing two years were replete with direction from the bench that Ms. Diamond had an entitlement to spousal support. It was with no small measure of exasperation that I wrote in my Ruling that I,

“would not ordinarily devote significant reasons to the question of entitlement in a 27-and-a-half-year marriage in which the parties’ finances have been so inextricably intertwined. But this is a core issue for Mr. Berman and … counsels have provided extensive case law to me and devoted much of their submissions to the question of entitlement.”

[23] Ultimately, Ms. Diamond was completely successful in her claim for indefinite, periodic spousal support based on her actual income.

[24] Mr. Berman’s success was more or less limited to two issues: reversing the temporary Order for spousal support for the period prior to the sale of the matrimonial home, and the two decisions on prejudgment interest. The former resulted from a detailed trial assessment of the intermingling of the parties’ pre-sale finances, post-separation adjustments and a balancing of multiple factors, not the lack of entitlement to spousal support that had been primarily advanced on the motion. The awards of prejudgment interest were largely insignificant to the overall calculations.

[25] Mr. Berman argues that success was divided as per Rule 24(6) which states that if there is “divided success” the court “may apportion costs as appropriate.”

[26] In Scipione v. Del Sordo, 2015 ONSC 5700 Justice Pazaratz writes that “[d]ivided success does not necessarily mean equal success and some success may not be enough to impact on costs.” I find that Mr. Berman’s success on the two modest issues is insufficient to apportion costs in his favour.

[27] Mr. Berman’s counsel presses further, setting out in his submissions a novel rubric: despite no review date being prescribed for the spousal support (it runs indefinitely until there is a material change), Mr. Berman’s personally anticipated retirement date “can and must be presumed for the purpose of assessing success with respect to holistic and global offers to settle with divided success on the issues.”

[28] In other words, counsel proposes that costs in this proceeding should be assessed on his client’s predicted success in the variation proceeding to come, making his December 18, 2019 global mid-trial Offer more favourable than the final Order because support will not be payable for very long.

[29] I cannot accept this approach. First, the December 18, 2019 Offer is not a Rule 18(14) Offer because it was made after the start of trial, see Rule 18(14) at paragraph 33 below. Second, a trial judge cannot anticipate the outcome of a future variation, and certainly can not adjust a costs award on criteria outside of Rule 24.

[30] Returning to Scipione v. Del Sordo, I close this section with Justice Pazaratz’ less often cited, but equally relevant first seven lines:

1 Why do written costs submissions frequently try to lead us into some sort of parallel universe where losers are actually winners? 2 If you lost, don't re-write the facts to argue that you won. It only makes the judge go back — repeatedly — to see if we're talking about the same case. 3 And if the best you got was a mixed result on one of the issues, don't claim you were right to relentlessly pursue all of the issues. Especially when you ignored repeated opportunities to pursue only the claims which might have had some merit. 4 Rules 18 and 24 of the Family Law Rules set out many important and complex considerations in dealing with costs. In making submissions, counsel would be remiss if they didn't vigorously advance every potential argument on behalf of their client. Because in determining costs, fairness to both the winner and the loser is paramount. 5 But the starting point — determination of success — shouldn't be so muddy. 6 Who got what they asked for? 7 That question shouldn't be so complicated.

[31] I find that Ms. Diamond is entitled to an award of costs.

Pre-Trial Offers to Settle – Rule 18(14)

[32] Ms. Diamond served six Rule 18 Offers to Settle: September 18, 2018, October 28, 2018, September 3, 2019, November 12, 2019 (Part B replaced in Offer of November 14, 2019), November 13, 2019 and December 27, 2019.

[33] Rule 18(14) provides at paragraph 2 that:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER (14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).

[34] All of Ms. Diamond’s Offers contained spousal support terms more favourable to Mr. Berman than the result at trial, with the exception of maintaining the Order for $28,800 obtained on a motion for temporary spousal support.

[35] Ms. Diamond’s October 28, 2018 Offer also provided for a division of pension credits at source with no prejudgment interest accruing. That Offer, with severable terms for spousal support and pension division was open for acceptance for almost a year and was then supplanted by the Offer of September 22, 2019 which also contained terms more favourable to Mr. Berman than those ordered at trial.

[36] Mr. Berman did make some efforts to settle prior to trial. He served Offers dated October 11, 2019, October 28, 2019, and November 12, 2019 but none, if accepted would have been more favourable to Ms. Diamond than the result at trial.

[37] By operation of Rule 18(14), Ms. Diamond is entitled to a full recovery of costs from October 28, 2018 unless the court orders otherwise.

[38] The discretion to depart from a full recovery has been confirmed in C.A.M v. D.M. [2003] (ONCA) and in this matter, there are three possible bases on which to exercise that discretion. First, Ms. Diamond’s case at trial heavily relied on a view that from 2017 to 2019 Mr. Berman was secreting money away from the family account. Upon cross-examination of Ms. Diamond this was shown to be only marginally correct and coupled with the direct evidence of Mr. Berman supported a decision reversing the temporary Order so that spousal support commenced after the sale of the home in January of 2019.

[39] Second, in the year leading to trial there was considerable confusion in Ms. Diamond’s position as to whether Mr. Berman’s federal pension was to be divided at source or included in his net family property. Third, her position on post-separation credits was also unclear, although not so much as lamented by Mr. Berman.

[40] I have considered these three points, the first of which was previously rejected as a basis for Mr. Berman’s divided success claim.

[41] The challenge in this analysis is balancing a less than full recovery to Ms. Diamond with the unreasonable litigation conduct of Mr. Berman. Resolution was too often derailed by his obsession with details that were of no or de minimus legal relevance and his avoidance of core family law concepts, such as a timely and fair market division of the equity in the matrimonial home. He was rigid in his view of acceptable outcomes. He invaded Ms. Diamond’s privacy and tried to control her outcomes. He did unpleasant things and engaged in petty cruelty. He could not be objective.

[42] That lack of objectivity could have been curbed by his counsel, but for most of the proceeding, Mr. Berman chose not to retain counsel even though he had the means to do so. Self-representation gave him licence to control the process to his own end and when it went poorly, the justification that he was not a lawyer. Self-representation allowed him to shift costs to Ms. Diamond. A review of the Bill of Costs shows more frequent communications between Mr. Greenstein and Mr. Berman during certain periods, than between Mr. Greenstein and his client, Ms. Diamond.

[43] Upon reviewing the litigation as a whole, I decline to depart from a full recovery of costs. To do otherwise would be to hold Ms. Diamond to a higher standard of litigation conduct than Mr. Berman.

[44] In granting a full recovery, I have also considered Mr. Berman’s lack of preparedness for trial per Rule 24(7) and the additional costs incurred by Ms. Diamond as a result of his mid-trial retainer of counsel. An earlier retainer of counsel would have saved both parties an enormous amount of costs.

Mid-Trial Offers to Settle and Rule 24(4) and (5)

[45] When an Offer is made after the start of trial, or within the seven days prior to the start of trial it cannot be considered under Rule 18(14), but it can be considered per Rule 24(4) and (5) which reads as follows:

SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY (4) Despite subrule (1), 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. O. Reg. 114/99, r. 24 (4).

DECISION ON REASONABLENESS (5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine, (a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; (b) the reasonableness of any offer the party made; and (c) any offer the party withdrew or failed to accept.

[46] There are important benefits to a mid-trial settlement such as certainty of outcome and inoculation from appeal. Financial benefits, such as the saving of legal and expert’s fees and disbursements are limited to the costs of the remainder of the trial.

[47] Parties who have served a qualifying and advantageous Rule 18(14) Offer to Settle will have an incentive not to settle once the trial has started because the savings for the balance of the trial will almost always be far less than their potential costs recovery on the Rule 18(14) Offer; (unless a payment of costs is part of the mid-trial settlement).

[48] There is a catch. If a successful party fails to accept a mid-trial Offer, or a severable term in that Offer, and the court decides that the party has behaved unreasonably in failing to accept the Offer or term, that party may be deprived of all or part of her costs or ordered to pay all or part of the unsuccessful party’s costs per Rule 24(4) and (5).

[49] This accords with Rule 2(3) of the Family Law Rules. Mid-trial settlements save parties time and the expense of the balance of the proceeding and a potential appeal, whether in full by way of a comprehensive settlement, or in part through a narrowing of the issues. Mid-trial settlements free up resources for other cases.

[50] Mr. Berman retained counsel mid-trial and immediately, there were serious settlement discussions. A review of the mid-trial Offers (December 4, 2019, December 6, 2019, and December 18, 2019) shows that Mr. Berman moved substantially farther towards settlement than did Ms. Diamond.

[51] Mr. Berman’s December 18, 2019 severable Offer provided two terms as favourable or more favourable than the final result: that there be no retroactive adjustment to spousal support or child support, but that Ms. Diamond retain the $28,800; and a pension division at source in the amount of $544,062.50 without prejudgement interest. His offer on post-separation adjustments was ultimately accepted by Ms. Diamond. Had Mr. Berman not continued to pursue a net family property adjustment for the post-separation vehicle use, his offer on equalization could also have been bettered at trial.

[52] On the strength of his December 18, 2020 Offers (a global and a severable Offer) Mr. Berman seeks a full recovery of his fees from December 19, 2019 to February 4, 2020 in the amount of $74,623 ($72,415 in fees, plus $343 in disbursements and $1,865 in expert fees), or in the alternative, a partial recovery of 40% as well as a partial recovery of fees for the settlement efforts of December 6, 2019, in the approximate amount of $1,424.

[53] I am not prepared to grant Mr. Berman his costs because the terms in his global and severable mid-trial Offers compare favourably to what was available to him to accept in Ms. Diamond’s severable Offers prior to trial, (October 28, 2018 and November 12, 2019) before either party had incurred the costs of trial preparation.

[54] However, I am persuaded that Ms. Diamond’s failure to accept the severable term for the pension division was unreasonable litigation conduct per Rule 24(4) and (5). This was a term on which she was prepared to settle prior to trial, and she was specifically not required in the severable Offer to give up any claim for costs incurred to date. What could have been saved after December 18, 2019 were the costs yet to be incurred to decide that issue, including the costs of the actuary.

[55] Mr. Berman’s counsel, Mr. Sherr amalgamated all the charges in Ms. Diamond’s Bill of Costs made after December 18, 2019 and calculates that she incurred a further $95,357 in fees, disbursements, and taxes, inclusive of the costs of the actuary. My review of the Bill of Costs shows that a sizeable portion of that amount relate to the pension issue. I find Ms. Diamond’s failure to accept the severed term for the division of pension credits to be unreasonable conduct sufficient to deprive her of the portion of costs incurred after December 18, 2019 that were related to the division of the pension.

The Amount of Costs to be Ordered

[56] I begin with a summary of the $348,624 sought by Ms. Diamond in legal fees, expert’s fees, disbursements and HST:

a. Legal fees of $9,823 and disbursements of $558 plus HST incurred from January 8, 2017 (the first call from Ms. Diamond) to December 20, 2017. This account covered the period of investigating mediation. When that process failed in the fall of 2017, the account includes the preparation of an Application, a Financial Statement and supporting court documents. b. Legal fees, disbursements and HST totalling $24,208 for five conferences for which costs were reserved or not addressed, being: i. Case Conference of May 8, 2018; ii. Settlement Conference of September 24, 2018; iii. Trial Scheduling Conferences of November 1, 2018, May 13, 2019 and October 25, 2019 which total $22,682. c. All other legal fees and disbursements charged by Ms. Diamond’s legal team from April 2017 to January 2020 which are not integrated, but instead are shown as separate, chronological dockets for each counsel, (senior counsel and four junior counsel - one of whom started work on the file as an articling student - as well as law clerk fees for three support staff). These total $258,085 in fees and $7,633 of disbursements plus HST. d. Expert fees of $12,426 inclusive of HST for an actuary to value Mr. Berman’s pension, for his assistance in settlement discussions and his trial attendance. I find that the cost for Mr. Berman’s pension valuation is wholly attributable to him, as it was his asset to value. I am also prepared to attribute the cost of the actuary’s attendance on December 2, 2019 to Mr. Berman as costs thrown away.

[57] The factors in setting an award of costs can be found in Rule 24(12):

SETTING COSTS AMOUNTS (12) In setting the amount of costs, the court shall consider, (a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: (i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle, including offers that do not meet the requirements of rule 18, (iv) any legal fees, including the number of lawyers and their rates, (v) any expert witness fees, including the number of experts and their rates, (vi) any other expenses properly paid or payable; and (b) any other relevant matter. O. Reg. 298/18, s. 14.

[58] A Bill of Costs is not the mirror image of a solicitor’s account. The reasonableness and proportionality of the amount claimed in relation to the importance and complexity of the issues must be assessed in accordance with Rule 24(12) irrespective of what was billed to the client.

[59] No party may litigate with impunity - even a successful litigant who is confident in her ability to recover costs.

[60] Mr. Berman asserts that the claim for $348,624 in costs is exorbitant, and extraordinarily disproportionate to the scope of the issues. He points out that the amount is nearly 10 times greater than the actual net disparity between the parties’ respective Offers to Settle as they stood in November of 2019. He provides examples of duplicated entries, fees for multiple counsel performing the same task on the same day, and the inflated accounting that results.

[61] I will focus this next section on the claim for recovery of fees for multiple counsel. I take no issue with the hourly rates that were individually charged by the applicant’s legal team: senior counsel, the four junior counsel and law clerks. All are reasonable and in keeping with going rates within the greater Toronto area. I have discounted some time docketed by the law clerks for tasks that are administrative.

Multiple Counsels

[62] The applicant had three counsel at table throughout this trial.

[63] Although neither counsel has provided me with authority for how many counsels can contemporaneously charge their time at trial, I am familiar with the case of Sepiashvili v. Sepiashhviili, 2001 CarswellOnt 3459 (SCJ) which is generally cited as authority to limit costs recovery to a single counsel. Multiple counsel is not an issue that comes up very often because exclusive of teaching firms, it is uncommon to see multiple counsel on a motion and unusual if not rare, to see multiple counsel at trial.

[64] The reason is self-evident: cost to the litigant. Few family law claims are of sufficient complexity or worth to justify the cost of a second counsel and fewer still are funded by clients who have the means for multiple counsel. Teaching firms therefore command not only the court’s appreciation for their role in mentoring, but the respect of the profession as a whole for providing training opportunities to the next generation.

[65] Neither the applicant’s submissions nor her Bill of Costs provide any context for why two counsels have billed their time for every court day and why many days include the time of a third counsel; or why the entries totalling $258,085 include dockets for multiple counsel for the same task when sampled by date.

[66] In removing the duplications and any excess times docketed by counsels, I am then left with the question of whether to give effect to the fees of multiple counsels at trial.

[67] As a general principle, I am of the view that the costs of multiple counsel cannot be recovered in costs. The recovery of fees for multiple counsel does not create an exception to the ordering of costs in an amount that would have been reasonably expected to have been paid by the unsuccessful party. One cannot shift to the other party the financial consequences of engaging multiple counsels any more than the consequences of engaging counsel with a higher hourly rate than is reasonable in the circumstances. To allow otherwise would be to permit litigants to financially intimidate their opponent and to potentially discourage meritorious claims.

[68] There may be exceptions to such a general principle. Each side may have engaged a litigation team so the costs of multiple counsel would be well within the contemplation of what the unsuccessful party would pay in costs. There may be complexity, language or disability barriers that make the retainer of multiple counsels reasonable and proportionate in relation to the issues.

[69] In this trial, each of the applicant’s three counsels took responsibility for certain tasks, while working as a team. Their efforts were most appreciated by the court, particularly the calming energy that each brought to assisting a highly distressed self-represented litigant. They could not have been more helpful or hard working. I could easily observe Ms. Diamond’s increased comfort level with a team approach. But should the expense of that approach be borne by Mr. Berman within an award of costs?

[70] I have reviewed Ms. Diamond’s Bill of Costs in some detail, including the courtesy discounts. After considering all the factors set out in Rule 24(12), I can ultimately find no basis in this proceeding to depart from the general principle that the costs of multiple counsel cannot be recovered. Each of the three counsels were capable of conducting a trial of this complexity on his or her own. The division of tasks spread out the workload and allowed all three counsels to gain valuable experience, but those benefits in my view do not shift the associated costs to the unsuccessful party.

[71] I make one exception. I fully credit the time spent at trial by each of the Krol and Krol counsels in assisting Mr. Berman prior to his retainer of counsel, including $1,525 in costs to organize Mr. Berman’s exhibit books.

The Five Conferences

[72] Costs accrued from an activity not specifically related to that step should be dealt with at the end of a proceeding: Walts v. Walts, 2014 ONSC 98. As sought by Ms. Diamond, I have considered the costs claimed for the period prior to issuing this Application and for the five conferences identified in paragraph 56(b) above.

[73] I attribute no costs for the period up to August 17, 2017 when Mr. Berman had counsel and talks were progressing, albeit slowly. I give a partial recovery of costs from September 2017 to the Offer of October 18, 2018 and a full recovery thereafter of the time reasonably spent in the proceeding, less time for delays that required an additional Trial Scheduling Conference that were not attributable to either party.

Summary

[74] Costs are designed to change litigation behaviour and to achieve four purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly per Rule 2 of the Family Law Rules, see: Mattina v. Mattina, 2018 ONCA 867.

[75] In this decision I have found that Ms. Diamond is entitled to her costs and have balanced a number of approaches over stated periods to achieve the above four purposes. I award Ms. Diamond costs payable forthwith by Mr. Berman in the rounded amount of $160,000 for legal and expert fees, and disbursements, plus HST of $20,800 for a total of $180,800.

McGee J. Date : July 16, 2020