Court File and Parties

Court File No.: FS-17-416430-0001 Date: 2023-05-17 Ontario Superior Court of Justice

Between: Jimin Sha, Applicant And: Toan Tran Buchan, Respondent

Counsel: Jeff J. Li, for the Applicant Stefan Juzkiw, for the Respondent

Read: May 17, 2023

F.L. Myers J.

Reasons for Judgment on Costs

This Proceeding

[1] The sole issue for trial was whether the parties’ 2017 divorce is valid. Ms. Sha attacked it on the bases of: (a) lack of notice; and (b) improper date of separation. She succeeded on both points.

[2] On that basis alone, Ms. Sha would normally be entitled to her costs. Moreover, as she did at least as well as the position on which she delivered an offer to settle, she would normally be entitled to her costs assessed on a substantial indemnity basis from the date of the offer.

[3] But this case also highlights the risk of bifurcating lawsuits.

[4] The applicant’s claim is principally for equalization. The applicant commenced this piece of the application in 2022. The 2017 date in the Court File Number is the date of the initial divorce proceeding that she attacks.

[5] If the divorce obtained by the respondent in 2017 is valid, then the applicant missed the two-year limitation period for claiming equalization after divorce set out in s. 7 (3) (a) of the Family Law Act, RSO 1990, c F.3.

[6] Therefore the issue of the validity of the divorce was bifurcated from the rest of the application to determine if the two-year limitation period bars Ms. Sha’s claim for equalization.

[7] No one required Ms. Sha to raise the issue of the date of separation as a ground for invalidating the divorce. But she did so. The trial could have been limited to the respondent’s efforts to prove that he properly served notice of the divorce proceeding on the applicant in 2017.

[8] Instead of just dealing with evidence concerning the service of a document in 2017, the applicant went back to the very beginning of the parties’ relationship. She tried to show that the parties lived together to 2020 to contest the propriety of the respondent’s use of a 2015 date as the date of separation in the challenged divorce proceedings.

[9] The applicant succeeded in showing that the date of separation used by the respondent in the divorce proceeding was not a valid date of separation. But I did not accept her evidence that the parties lived together until 2020. Rather, I found it more likely than not that the parties had never lived together at all. That finding of fact was necessary to resolve the question of whether the 2015 date was correct. But the finding also drove the inescapable legal conclusion that the date of separation was the date of marriage in 2013.

[10] While the two-year limitation period from the date of divorce no longer applies, it is not the only limitation period applicable to equalization claims. Subsection 7 (3) (b) of the Family Law Act provides that a claim for equalization cannot be brought more than six years after the parties separated with no reasonable prospect of reconciliation.

[11] If the doctrine of res judicata or the related doctrines of abuse of process apply to my trial findings, then the equalization claim will be barred by this second limitation period. In my endorsement I questioned whether costs ought to go to the applicant if she won the battle only to lose the war.

[12] The applicant submits that costs are only sought for the battle and she won it outright. The issue I have though, is that if the other limitation period applies, then the application should never have been brought at all. The battle should not have been fought.

[13] Bifurcating this application solved one problem but raised another that is not yet resolved. In retrospect, the bifurcation was either too narrow or it should not have occurred. Limiting the trial issues to just the divorce rather than all limitation periods, was under-inclusive. But, if the applicant knew that she was going to put the entire alleged relationship into issue, then there should never have been a bifurcation. The limitation period applicable to the divorce was not a discrete issue. It raised the entire history of the parties’ relationship that necessarily overlaps with other issues.

[14] Like partial summary judgment, bifurcation can be beneficial where a discrete issue might resolve a big piece of the case. But where the facts or issues are not discrete and overlap with other issues, bifurcation can cause problems. Unlike a motion for summary judgment, I heard a trial on full viva voce evidence. The issue before me required me to find whether the parties ever lived together on the full factual matrix of the case. I was not in the position of a motion judge who had to worry about findings that might be made at a later trial on better evidence. I heard the trial the parties wanted heard. I leave for others the question of whether there is anything left to hear before resolving the new limitation question.

[15] But a judge may well decide that the findings I made are binding on the parties and therefore the limitation period in s. 7 (3) (b) bars the equalization application. If that happens then the battle will in the end determine the outcome of the war. There will be no subsequent battle of note.

[16] In my view, it would not be consonant with the prime objective of the Family Law Rules nor the three purposes of costs awards were I to decide costs now without knowing the outcome of the case. I cannot tell who really won. I know the outcome of an imperfect bifurcation of issues. But that does not tell the full story or dictate who really wins, who was reasonable and acting in good faith, or who ought to have settled.

[17] I have reviewed the bills of costs submitted by both sides. I do not agree with the criticism of Ms. Sha’s costs. Mr. Li delegated what he felt appropriate to delegate. I do not accept criticism of his judgment especially given the amount of detail needed to deal with the issues at this trial. His preparation proved particularly helpful.

[18] I would fix both side’s costs in accordance with their bills of costs. The applicant’s costs should be fixed on a substantial indemnity basis after the date of her offer to settle as she seeks. She beat her offer. The respondent however should be limited to partial indemnity basis as he did not beat his offer. Moreover even if he wins the application, his offer deals only with the divorce and not the broader issues.

[19] Costs are therefore in the cause fixed at $24,780 if the respondent succeeds and $44,783 if the applicant succeeds in the main application.

F.L. Myers J. Released: May 17, 2023