COURT FILE NO.: FC-14-FS000053-0000
DATE: 2022-02-03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
T.L.B.L
Applicant
– and –
T.E.M
Respondent
Self-represented
Self-represented
THE HONOURABLE MR. jUSTICE D.J. GORDON
SUPPLEMENTARY ENDORSEMENT RE: COSTS
[1] In my reasons for decision, released December 16, 2021 (2021 ONSC 8235), I invited written submissions from the parties on the issue of costs. I have received and reviewed the submissions presented by each party.
[2] This was a high conflict case. It was commenced in 2014. There were several temporary orders, most granted on consent. The trial took place in 2021, requiring 49 days although only 12 had been requested.
[3] The primary issue at trial, requiring the vast majority of time, was parenting of ten-year-old twin children. Both decision-making and parenting time were in dispute. Secondary issues, pertained to child support, spousal support, incomes of each party, trust claims regarding the family residence and business and other matters.
[4] The parties spent their life savings, and then borrowed funds, to finance this litigation. Ultimately, when the funds were spent, the parties were forced to represent themselves at trial.
[5] The evidence at trial suggested the positions of the parties never changed over seven years of litigation. Only two matters were reported as being resolved, including the sale of their jointly owned cottage. To their credit, they also settled the companion civil claim of T.E.M for wrongful dismissal.
[6] The offers to settle were presented with costs submissions, none being conclusive on the present issue under Rule 18 but certainly worthy of consideration. More importantly, these offers reveal a basis for resolution of all issues had they diligently pursued negotiations. However, their costs submissions are comparable to the evidence at trial, an overwhelming need to blame each other and argue over every event.
[7] In my invitation for costs submissions, I said:
Should either party, after reviewing these reasons for decision, feel entitled to a cost award, written submissions are required…
[8] Those words were specifically chosen, expecting the parties to consider the critical comments set out in my reasons regarding the conduct of this litigation. It appears from the present submissions that they failed to understand what my words meant.
[9] In particular, the following items were addressed in my reasons:
a. delay – seven years is unconscionable when children are involved;
b. non-compliance with court orders by both parties, in particular refusing to complete the section 30 assessment by Dr. Jaffe, as directed by a consent order granted on February 12, 2015, thus denying the children and the court with necessary and important evidence required for the “best interest” analysis;
c. trial length was excessive and beyond any reasonable expectations, primarily resulting from a lack of focus on trial issues, being more concerned with the personal dispute;
d. unilateral decisions being made on child matters by both parties when consent or court order was required; and
e. T.L.B.L moved to Huron County in 2019 which I determined was done for strategic reasons, yet T.E.M did not present a motion to prevent such occurring.
[10] Those matters will now impact on the determination of costs. Neither party should be rewarded for the manner in which this case was litigated. Significant time and money was unnecessary spent in “combat”. That is not how family cases are to be managed.
[11] In relation to the positions of the parties at trial, there was mixed success, although more favourable to T.L.B.L. She was successful on the parenting issues, most of the secondary child matters, family residence, spousal support, child support, the dog, remaining personal items in the residence and substantially on the income imputation. T.E.M was successful on the trust clam regarding the business and the restraining order.
[12] The offer to settle of T.L.B.L in 2016, limited to property and spousal support, was a compromise that should have led to resolution. Similarly, her offer in 2019 contained a provision regarding parenting and child support that was close to what T.E.M was seeking. That offer also should have lead to a resolution. The offers of both parties contain other items, not entirely severable. Hence, as stated above, the offers do not meet the Rule 18 standard.
[13] In her written submissions, T.L.B.L presents a claim for full indemnity costs, and for other matters, of $303,030.24. T.E.M says there should be no order for costs to either party.
[14] There are several items in the written submissions of T.E.M that necessitate comment:
a. he says there was mixed success – correct but, as above, more favourable to T.L.B.L over-all;
b. he acknowledged she had a one-half interest in the house – that was his position at the end of the trial, but he neglects to mention his position was to use the 2015 value, not the value as at the time of the trial;
c. he withdrew the request for compensation regarding the dog – incorrect, he withdrew request for one of the two dogs, one having died before trial, but sought compensation of $1,000.00.
d. she withdrew from mediation – correct, but so did he on a prior occasion; and
e. he did not dispute the business value and she did not call the expert as a witness – incorrect, he challenged the expert and lead oral evidence on a much higher value but neglected to obtain a valuation report.
[15] There are concerns with the written submissions of T.L.B.L:
a. she seeks costs regarding prior lawyers, and their law clerks, for matters not previously determined, but it is unclear what the time was allocated to;
b. she seeks goodwill loss and interest expense for business loans;
c. she seeks compensation for her time and for the replacement veterinarian when she was in court or for preparation and other matters; and
d. she seeks recovery of mediation fees.
[16] At trial, T.L.B.L presented evidence regarding what she described as financial abuse by T.E.M, in particular, matters pertaining to the business. I concluded that issue estoppel applied in that the claim may have been relevant in the civil action and should have been addressed in that companion action. I reach the same conclusion regarding the good will loss and interest expense, in the total amount of $35,251.00, that she now seeks. This is not properly a costs claim.
[17] As a self-represented party, T.L.B.L is entitled to some compensation for her time. However, it would be double recovery to award an amount for both her time and the expense of hiring a replacement veterinarian.
[18] The purpose of mediation is to explore resolution. Absent an explanation for the claim presented, mediation expenses are not recoverable.
[19] The costs claim can include the time spent by former lawyer and their law clerks on matters not involving a costs decision. In this regard, initial consultations, pleadings, questioning, correspondence and some preparation would be appropriate. The difficulty here is ascertaining what that time was.
[20] In all of the circumstances, I conclude T.L.B.L is entitled to a cost award, discounted somewhat for less than full success and reduced for the reasons above.
[21] On the basis of the material provided in the written submissions, I would calculate the initial costs to be considered as follows:
a. lawyers and law clerks — $60,000.00 plus HST of $7,800.00, for a total of $67,800.00;
b. time of T.L.B.L — $30,000.00;
c. disbursements (rounded) — $15,500.00;
d. total — $113,300.00
[22] Given the manner this litigation was conducted, I conclude the entitlement of costs by T.L.B.L ought to be reduced to $50,000.00, inclusive of HST and disbursements.
[23] In result, costs are awarded to T.L.B.L, payable forthwith by T.E.M, in the amount of $50,000.00.
Justice D.J. Gordon
Released: February 3, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
T.L.B.L
– and –
T.E.M
SUPPLEMENTARY ENDORSEMENT RE: COSTS
Justice D.J. Gordon
Released: February 3, 2022