Court File and Parties

COURT FILE NO.: FC-11-936-2 DATE: 2023/07/10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LANIE HORMILLOSA Applicant – and – OCTAVE TSHIANI-LEVINE Respondent

Counsel: Steve Duplain, for the Applicant Self-represented, for the Respondent

HEARD: February 1, 2 and 5, 2021; and in writing on January 31, 2023, March 3, 2023, and March 17, 2023

Reasons for Judgment

M. SMITH J

1The Applicant, Lanie Hormillosa, and the Respondent, Octave Tshiani-Levine, began cohabitating in 1995. They married in September 1998 and have three children. The parties separated in March 2011.

2Ms. Hormillosa commenced her application on May 2, 2012. Mr. Tshiani-Levine responded on September 12, 2012. Since then, the parties have been involved in a lengthy and protracted family law proceeding. Also, child protection proceedings had been initiated and were concluded several years ago.

3This family law trial deals with two distinct issues:

i. Is Mr. Tshiani-Levine's entitled to legal costs and disbursements incurred between 2012 and 2018?

ii. What is the proper division of the parties’ respective pensions?

4In Mr. Tshiani-Levine's final written submissions, he takes the position that the trial deals with a third issue, namely the reimbursement of the mortgage payments in the amount of $22,000. The Court disagrees. During the trial, Mr. Tshiani-Levine raised the same argument. On February 2, 2021, the Court made a mid-trial ruling, with oral reasons. The Court found, amongst other things, that in 2015, Mr. Tshiani-Levine had agreed to abandon the reimbursement of the mortgage payments. As such, the Court concluded that there were only two issues to be determined at trial.

Trial procedural history

5This trial commenced in February 2021 and ended in March 2023. The trial procedural history is set out below.

6This matter proceeded to trial for three days on February 1, 2, and 5, 2021. The trial was adjourned, pending the receipt of additional materials relating to Mr. Tshiani-Levine's federal administrative pension valuation. Once received, it was anticipated that the trial would resume with the expert testimony of an actuary, Mr. Guy Martel. Mr. Martel had prepared pension valuation reports for both parties.

7On July 27, 2021, a trial management case conference was held. Mr. Tshiani-Levine had obtained his federal administrative pension valuation, but he took the position that an actuarial valuation was not necessary. The parties were ordered to file and serve their written submissions on this issue.

8On September 13, 2021, the Court ruled that an actuarial valuation was required. However, Mr. Tshiani-Levine disputed Mr. Martel's objectivity. As such, Mr. Tshiani-Levine was permitted to retain his own actuary and serve an expert report within 60 days of the Court’s decision.

9After a significant delay, the parties requested a further trial management case conference, which took place on November 21, 2022. Mr. Tshiani-Levine had obtained an actuarial valuation. On consent of the parties, it was agreed that expert reports would only be filed, and that no further oral evidence would be tendered. The parties also agreed to provide their final written submissions, by mid-March 2023.

Issue #1: Is Mr. Tshiani-Levine entitled to legal costs and disbursements incurred between 2012 and 2018?

10Mr. Tshiani-Levine seeks the reimbursement of legal costs and disbursements in the amount of $58,055.61, incurred between 2012 and 2018. In addition, he seeks compensation for lost salary in relation to the various court proceedings. During this period, there were numerous court appearances and court orders. A detailed historical review of these court appearances and court orders is set out in the text that follow.

Historical court proceedings and orders

11On April 22, 2013, a motion was scheduled before Kershman J. where he ordered child support to be paid by Mr. Tshiani-Levine in the net monthly amount of $776.00. The matter was adjourned to May 21, 2013, to deal with other matters. No costs were ordered.

12On May 21, 2013, the parties appeared before Kane J. The motion was adjourned to July 19, 2013. Ms. Hormillosa was ordered to produce financial disclosure. The endorsement was silent regarding costs.

13On July 19, 2013, the parties appeared again before Kane J. where interim child and spousal support orders were made, payable by Mr. Tshiani-Levine. Costs in the amount of $1,000 were awarded against Mr. Tshiani-Levine, payable at the rate of $200 per month, after the payment of arrears of support. A Settlement Conference was scheduled to proceed on October 18, 2013.

14On October 9, 2013, Mr. Tshiani-Levine brought a motion for disclosure and contempt of Kane J.’s order dated May 21, 2013. Minnema J. declined to issue a contempt order. Both parties sought costs for the motion. No costs were ordered.

15The Settlement Conference dated October 18, 2013, was adjourned.

16On February 20, 2014, the parties appeared before Mackinnon J. The parties consented to a parenting order. The order was silent regarding costs.

17On April 22, 2014, a motion was scheduled to proceed before Master MacLeod, as he was then. The matter was adjourned because counsel for Ms. Hormillosa was not available. The endorsement was silent regarding costs.

18On May 16, 2014, the parties appeared before Métivier J. The interim child and spousal support orders of Kane J. dated July 19, 2013, were varied. The parties were ordered to provide their financial disclosure by the end of December 2014. The order was silent regarding costs.

19On August 14, 2014, the parties appeared in Assignment Court before Mackinnon J. The matter was placed on the January 2015 trial list. It was noted in the endorsement that both parties had retained the actuary, Mr. Guy Martel. The order was silent regarding costs.

20On January 13, 2015, a Settlement Conference was held before Kane J. It was noted in his endorsement that Mr. Tshiani-Levine agreed to dismiss his claims for the contents of the family home and the reimbursement of the mortgage payments. The endorsement was silent regarding costs.

21On March 20, 2015, a further Settlement Conference was held before Kane J. The parties agreed, amongst other things, to proceed to the division of their respective pensions. It was reiterated that both parties agreed to retain the services of Mr. Guy Martel to value each of their pensions. An order for disclosure was made. The order was silent regarding costs.

22On October 16, 2015, Mackinnon J. ordered that the November 20, 2015 Settlement Conference be adjourned and that no further Settlement Conferences be scheduled unless both parties confirmed their readiness and availability. The endorsement was silent regarding costs.

23On January 4, 2016, a Settlement Conference was held before Labrosse J. The Settlement Conference did not proceed because Ms. Hormillosa was not present. It was commented by Labrosse J. that the matter was not ready for trial because the parties had not complied with the order of Kane J. for the joint retainer of Mr. Guy Martel to value their pensions. The endorsement was silent regarding costs.

24On June 30, 2016, Doyle J. ordered that Ms. Hormillosa provide disclosure. Costs for the appearance were reserved to the trial judge.

25On February 2, 2017, Doyle J. ordered the following: (i) that spousal support be terminated, effective May 16, 2014; (ii) the $6,000 payment to the Family Responsibility Office be repaid by Ms. Hormillosa; and (iii) section 7 expenses be shared equally. The endorsement was silent regarding costs.

26On February 28, 2017, Doyle J. struck out Ms. Hormillosa’s pleadings on the basis that she did not respect previous disclosure orders. The matter was scheduled for an uncontested trial. The order was silent regarding costs.

27On August 24, 2017, an uncontested trial was scheduled before Doyle J. Mr. Tshiani-Levine did not attend, and the matter did not proceed.

28On October 17, 2017, a motion was held before Shelston J. For oral reasons given, Mr. Tshiani-Levine’s motion was dismissed. No costs were ordered.

29On January 11, 2018, an uncontested trial was held before Audet J. who ordered the following: (i) Ms. Hormillosa to pay the sum of $6,000 to Mr. Tshiani-Levine that was erroneously taken by the Family Responsibility Office; (ii) Ms. Hormillosa to pay to Mr. Tshiani-Levine the sum of $18,000, representing 50% of the value of the RRSPs; (iii) Ms. Hormillosa to pay to Tshiani-Levine the amount of $4,462 for her share of the section 7 expenses; (iv) each party to retain their respective pensions; and (v) Ms. Hormillosa to pay to Mr. Tshiani-Levine the sum of $11,000, representing 50% of her share of the mortgage payments paid by Mr. Tshiani-Levine. The endorsement and order were silent regarding costs.

30On August 21, 2018, a motion was heard by Doyle J. to set aside the order of Audet J. made during an uncontested trial. In setting aside part of Audet J.’s order, Doyle J. made several findings, which include the following:

i. Paragraph 40 – Ms. Hormillosa has provided an explanation for not attending the February 28, 2017 hearing before me. I accept her explanation that she thought she and Mr. Tshiani-Levine had settled the matter. She had returned a signed copy of the agreement to him and also their daughter had relayed a message from him that she did not need to attend court that day.

ii. Paragraph 43 – I agree with counsel’s description of his client being naïve to trust Mr. Tshiani-Levine and that she really should have proceeded with more caution to protect her rights by attending court on February 28, 2017. Nevertheless, the Court accepts that, based on the history of the file, she did not believe it was necessary for her to attend.

iii. Paragraph 50 – Since Ms. Hormillosa did not attend before me on February 28, 2017, she was not given an opportunity to show if and when she had provided Mr. Tshiani-Levine with the Court ordered documents. Neither party were aware that one of the consequences of failing to comply with disclosure orders is an order striking pleadings.

iv. Paragraph 51 – Both parties had agreed before Kane J. to equally divide their pensions accumulated during the marriage.

v. Paragraph 52 – Mr. Martel’s valuation reports indicate that Mr. Tshiani-Levine’s pension is substantially greater than Ms. Hormillosa’s pension. Ms. Hormillosa’s pension was valued at $5,170 while Mr. Tshiani-Levine’s federal government pension is valued at $176,797.

vi. Paragraph 59 – In my view, Ms. Hormillosa would be prejudiced in that her RRSP’s at the date of separation were divided but Mr. Tshiani-Levine’s substantial pension was not. At the settlement conference held before Justice Kane on March 20, 2015, the parties had agreed that they would share equally their individual pension contributions and credits. Obviously, Mr. Tshiani-Levine did not tell Justice Audet about this agreement. In addition, he did not tell her about the fact that he had agreed not to pursue a reimbursement of mortgage payments in another appearance before Justice Kane.

vii. Paragraph 60 – This shows a lack of candor and frankness before Justice Audet. Had she been made aware of these prior agreements, her Final Order would have been quite different.

viii. Paragraph 63 – The Court also notes Mr. Tshiani-Levine’s lack of truthfulness when he told Ms. Hormillosa on March 1, 2016 that nothing had occurred in Court the day before and there was another hearing in May.

31On October 12, 2018, Doyle J. rendered her decision on costs regarding the motion that was held on August 21, 2018. In ordering no costs, Doyle J. commented that both parties were at fault. Ms. Hormillosa was tardy in providing disclosure and Mr. Tshiani-Levine was not forthright when he appeared before Audet J., and he lacked candor in his communication with Ms. Hormillosa.

32On December 13, 2019, Beaudoin J., sitting in Divisional Court, dismissed Mr. Tshiani-Levine’s appeal of Audet J.’s order dated January 11, 2018. Beaudoin J. found that Mr. Tshiani-Levine had failed to seek leave under r. 62.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Mr. Tshiani-Levine was ordered to pay costs in the amount of $1,000.

The position of the parties

Mr. Tshiani-Levine

33Mr. Tshiani-Levine seeks the reimbursement of his legal fees and disbursements in the amount of $58,055.61, incurred mostly before 2015. During his testimony, he said that the amount incurred may be more closely to $56,000 because he had miscalculated the legal fees.

34In addition, he seeks the sum of $9,160 for lost salary and disbursements incurred between 2013 and 2018.

35Initially, Mr. Tshiani-Levine retained the services of four different lawyers for both the family law and child protection proceedings. The lawyers that he retained were: Wade Smith, Bryan Delaney, Bruce Delpin, and Edward Conway. In 2014, for financial reasons, he decided to represent himself. However, on an ad hoc basis, he consulted three different lawyers, namely Deidree Powell, Achille Kabongo, and R. Siegle.

36The legal fees and disbursements incurred by Mr. Tshiani-Levine can be summarized as follows:

i. Wade Smith - $2,570.75

ii. Bryan Delaney - $11,220.46

iii. Edward Conway - $41,072.19

iv. Deidree Powell - $1,582.00

v. Achille Kabongo - $610.20

vi. R. Siegle - $1,000.00

37Mr. Tshiani-Levine claims that his lawyers prepared voluminous documents in response to Ms. Hormillosa’s application and the various court appearances. Several motions were required because of Ms. Hormillosa’s lack of disclosure, as well as a change to the spousal support orders.

38Regarding the lost salary, Mr. Tshiani-Levine’s claims vary between $200 to $600 per court appearance. For his personal expenses, they vary between $50 to $80 per court appearance.

39Mr. Tshiani-Levine argues that for the uncontested trial that took place on January 11, 2018, he was presumptively entitled to the costs of the proceedings. However, Audet J. omitted to address the issue of costs.

Ms. Hormillosa

40Ms. Hormillosa submits that Mr. Tshiani-Levine has not established that he is entitled to costs. She argues that he has failed to provide supporting evidence that clearly demonstrates the portion of his costs that is attributable to the family law proceeding and not the child protection matter.

41Furthermore, it is submitted that the evidentiary record shows that two of Mr. Tshiani-Levine’s counsels (Mr. Wade and Mr. Delaney) never appeared on record at any point during the court proceedings, and that Mr. Conway only appeared once in court for a consent order on child support.

42Mr. Tshiani-Levine has not produced any documentary evidence in support of his claim for lost income.

43Mr. Tshiani-Levine has been found to demonstrate a lack of frankness and candor before the court, taking unreasonable positions which are not in conformity with the applicable law, and he has refused to pay four prior cost orders made against him.

Analysis

44Between 2012 and 2018, there were approximately 20 court appearances. For most of these court appearances, the endorsements and/or orders made in the proceedings were silent regarding costs. On a few occasions, the judge hearing the matter ruled that no costs would be awarded, or interestingly, that Mr. Tshiani-Levine pay costs to Ms. Hormillosa. The only time that costs were reserved to the trial judge is the order of Doyle J. made on June 30, 2016.

Legal principles

45Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs are at the discretion of the court. The framework in awarding costs is set out at r. 24 of the Family Law Rules, O. Reg. 114/99 (“FLR”).

46Mr. Tshiani-Levine is seeking costs for prior steps in the case. The amendments made to r. 24 of the FLR on July 1, 2018, permits the Court to grant costs for those prior steps. S.B. Sherr J. provides a helpful review of these amendments in Thomas v. Saunchez, 2022 ONCJ 532, at paras. 19 to 24:

19 Prior to July 1, 2018, pursuant to subrule 24 (10), costs for any step in the proceeding were required to be determined at the time or expressly reserved. In Islam v. Rahman, 2007 ONCA 622, the Ontario Court of Appeal set out that the trial judge should not deal with requests for costs that were addressed or should have been addressed at prior steps in the case.

20 Subrule 24 (11) came into force on July 1, 2018, and now provides that the failure of the court to order costs in relation to a step in a case does not prevent it from awarding costs in relation to the step at a later stage in the case.

21 However, courts continue to be cautious about awarding costs at the trial stage where costs were not awarded at earlier steps in a case. See: Baezner v. Brunnenmeir, 2018 ONCJ 956; Nabwangu v. Williams, 2019 ONCJ 171.

22 In Cameron v. Cameron, 2018 ONSC 6823, Justice Marvin Kurz interpreted the changes to the costs rules regarding prior steps in a case as creating a rebuttable presumption against ordering costs for these steps if they were not addressed or reserved by the judge hearing the step. He wrote at paragraphs 83 to 88:

[83] In sum, a trial judge has the jurisdiction under R. 24(11) to determine the costs of earlier steps in the proceeding. However, in light of the continued application of R. 24(10), it should be presumed that a judge who does not determine or reserve the costs of a step before her or him does not find that the conduct of the parties during the course of that step merits an award of costs.

[84] That presumed finding should be entitled to deference by subsequent judges. It should be accorded even greater deference when, as here, the previous step was conducted before R. 24(11) was formally amended on April 23, 2018.

[85] If the judge of a step prior to trial does not wish the presumption to apply, I suggest that he or she should say so. The judge can then expressly reserve the costs of the step to a later date, such as the trial. If that occurs, brief reasons would be helpful. I know that many judges are reluctant to award costs of a conference or even reserve them for fear that such a decision may adversely affect the potential for settlement. However, with the increasingly onerous costs of family litigation, it is always salutary for the parties to be reminded at every stage of the proceeding of the potential costs consequences of their litigation.

[86] In light of the presumption, a judge hearing a trial should only grant the costs of a previous step in one of the following circumstances:

a. when they have been reserved to the trial judge; or

b. when, in light of subsequent events, the trial judge is better situated to determine the costs of the prior step than the judge presiding over that step. In that case, the process of determining costs will involve a broad consideration of the prior step within the context of the case as a whole; or

c. in exceptional circumstances.

[87] If a party seeks the previously undetermined and unreserved costs of a previous step, the onus rests on him or her to set out why those costs should now be awarded in their favour. To meet that onus, the party should offer a detailed summary of each prior step for which he or she is seeking costs. The party should add an explanation of why he or she should now be granted the costs of that step. That summary should include:

a. the positions that each party took at that step;

b. the manner in which the party's participation in that step advanced the case or contributed towards the ultimate result;

c. an explanation of why the later judge is in a better position than the judge who actually dealt with the particular step to assess the significance or reasonableness of the conduct of the parties during that step;

d. a comparison of any relevant offers to settle, particularly as they may impact on the prior step; and

e. any other consideration that the party relies upon to claim the costs of that step.

[88] The principles set out above also apply, with any necessary adjustments (considering their more summary nature), to motions and any other proceedings in which a judge is asked to award the undetermined costs of prior steps. Those principles can apply, for example when a motions judge is asked to determine the costs of a previous case conference or when the balance of a partially completed conference is adjourned to another date, without costs being reserved.

23 In Laidman v. Pasalic and Laidman, 2020 ONSC 7068, the court set out that the presumption remains that costs should be determined at each stage, and there are good reasons for this. Parties should have an ongoing awareness of the cost consequences of litigation decisions they make. Reserving costs may impede final resolution by needlessly inflating and complicating the list of future issues still to be dealt with. A judge who has just completed a step in a case will usually be in the best position to evaluate all of the relevant Rule 18 and 24 considerations. Reserving costs to a future event - often to a different judge - can result in later confusion and controversy about what really happened at the earlier step.

24 In Berge v. Soerensen, 2020 ONCJ 265 Justice Roselyn Zisman set out the following circumstances where costs of a prior step should be awarded by a trial judge:

a) Costs have been reserved to the trial judge.

b) When, considering subsequent events, the trial judge is better situated to determine the costs of the prior step than the judge presiding over the step or,

c) In exceptional circumstances.

47By following the legal principles set out above, it is the Court’s view that Mr. Tshiani-Levine has failed to demonstrate that costs should be awarded for any of the previous steps in these proceedings. The reasons for this conclusion are set out below.

Credibility

48First, Mr. Tshiani-Levine’s testimony raised some credibility concerns. Here are some examples:

i. In his affidavit sworn on January 15, 2021, he deposed that during the hearing of the motion to set aside Audet J.’s final order, Doyle J. concluded that he was entitled to his costs of the proceedings. During cross-examination, he maintained this position and added that Doyle J. wanted to render an oral decision on costs at the hearing but that counsel for Ms. Hormillosa objected to same. This testimony is not credible. Doyle J. reserved her decision on the merits of the set aside motion, and it is unlikely that she would have concluded that he was entitled to the costs of the proceedings, or even less so, render an oral decision on the issue of costs. Moreover, having read Doyle J.’s decision and her findings on Mr. Tshiani-Levine’s lack of candor and honesty before Audet J., it does not logically follow that Doyle J. would have concluded that he would be entitled to costs.

ii. On July 19, 2013, Kane J. ordered costs against Mr. Tshiani-Levine. He claims that this amount has been paid but he was unable to say how or when this was paid. More importantly, this issue of non-payment of costs arose in 2020 when the parties attended at court. Despite being aware that this was a contentious issue and despite the volume of documents filed by Mr. Tshiani-Levine dating back to 2012, he was unable to produce a document that would corroborate his testimony that he paid this costs award.

iii. Mr. Tshiani-Levine’s evidence is that he incurred over $50,000 in legal costs for the family law proceedings. This is not credible. Most of the legal fees were billed to Mr. Tshiani-Levine between May 2011 and March 2013, well before any court appearances in the family law proceedings. It is worth reiterating that Ms. Hormillosa filed her application in May 2012 and his response in September 2012. The likely scenario is that the legal work pertained mostly to the child protection proceedings.

49The Court therefore approaches Mr. Tshiani-Levine’s evidence with caution and requires corroborating evidence to support his various contentions.

50In terms of Ms. Hormillosa’s evidence, the Court did not find that she was shaken during cross-examination. She was not argumentative, defensive, or evasive. The Court was impressed with her evidence and found her to be credible. When she was self-represented, she was unfamiliar with the court process and naively followed Mr. Tshiani-Levine’s directions.

Lack of evidence

51Second, Mr. Tshiani-Levine testified that for many years, he was seeking financial disclosure from Ms. Hormillosa. He succeeded in getting an order striking Ms. Hormillosa’s pleadings because of her non-compliance with financial disclosure. He also made a request to amend the support orders, which was granted. Mr. Tshiani-Levine said that despite his success at various steps in the proceedings, the court never awarded costs in his favour. He acknowledged during his cross-examination that during a 10-year period, no costs have ever been awarded against Ms. Hormillosa and that some cost awards have been made against him.

52Mr. Tshiani-Levine’s evidence regarding the various court appearances lacks specificity. He has not provided any compelling evidence that would allow the Court to determine that costs should be awarded at some or all the previous court appearances. Furthermore, he has failed to convince the Court that it is in a better position than the previous judges to assess whether costs are appropriate for the prior court appearances. Given the absence of evidence before the Court regarding what truly transpired at these various court appearances, the Court must presume that the judges presiding over most of them, determined that an award of costs was not warranted.

53Regarding Mr. Tshiani-Levine’s position that an award of costs was omitted by Audet J. during the uncontested trial in January 2018, he has not presented any evidence to support this contention. Her endorsement clearly demonstrates that she was aware of the historical background, which led to the striking of Ms. Hormillosa’s pleadings. Yet, she did not order costs against Ms. Hormillosa. Again, without any evidence to the contrary, the Court must presume that Audet J. determined that an award of cost was not warranted.

54In any event, Mr. Tshiani-Levine appealed Audet J.’s final order, which was denied by Beaudoin J. in the Divisional Court. Furthermore, as set out in detail in Doyle J.’s reasons to set aside the Audet J.’s final order, she found that Mr. Tshiani-Levine lacked candor and frankness before Audet J. This type of conduct is, in itself, sufficient to disallow an award of costs.

Lawyer’s court appearance

55Third, other than one court appearance by Mr. Conway, at which time a consent order had been agreed upon with respect to child support, the Court finds that there is no reliable evidence before it that any of Mr. Tshiani-Levine’s counsel attended court on his behalf. Rather, the evidence shows that he attended court as a self-represented litigant.

Failure to provide documentary evidence

56Fourth, Mr. Tshiani-Levine has failed to provide satisfactory documentation in support of his claim for legal costs and expenses, as required by r. 12.1 of the FLR. The documentary evidence filed by Mr. Tshiani-Levine includes partial accounts from lawyer without any specifics, letters from lawyers, some of which simply state the amounts due and owing, copies of cheques made to the lawyers, reminder notice, and credit card payment forms. With this limited documentary evidence, the Court is unable to determine the type of work that was undertaken by the lawyers, the time spent, the associated fees incurred to undertake this work, and whether the work related to this family law proceeding or the child protection application.

57Mr. Tshiani-Levine acknowledged during cross-examination that someone in Mr. Delaney’s office dealt with the child protection matter. Afterwards, he was represented by Mr. Conway. The invoices from these two law offices total approximately $52,000. While Mr. Tshiani-Levine’s evidence was that these lawyers were also involved with the family law proceedings, he was unable to provide any corroborating evidence. He also acknowledged that the invoices received by the lawyers do not indicate if the work pertained to the family law matter or the child protection proceeding. Mr. Tshiani-Levine has therefore been unable to prove that most of the legal fees incurred ($52,000) relate to the family law matter.

58In terms of Mr. Tshiani-Levine’s request to be reimbursed for lost wages and expenses incurred, he testified that he was required to take time off from his salaried employment with the federal government, without pay. Mr. Tshiani-Levine claims amounts between $200 to $600 of lost wages, for the court appearances. Again, other than his testimony, which is insufficient, he has not provided any documentary evidence to support his lost wages.

59Regarding the personal expenses that Mr. Tshiani-Levine estimated to have incurred (between $50 to $80 per court appearance), he was not able to provide any specifics. He testified that they were only estimates. This is clearly insufficient and unacceptable evidence.

Section 24 factors

60Fifth, when considering the s. 24 factors of the FLR to determine the entitlement and quantum of the costs, the Court does not find that Mr. Tshiani-Levine is entitled to costs. Some of these factors have been touched upon already, including the lack of evidence regarding the legal fees, lost salary and expenses incurred. The other factors include the presumption that a successful party is entitled to costs and each of the party’s behaviour during the proceedings.

61Of the 20 court appearances, the Court finds that there are only three attendances where there may be an argument regarding the presumption of entitlement to costs:

i. On May 21, 2013, where Kane J. ordered Ms. Hormillosa to produce her 2010 and 2012 tax returns and notices of assessment. Yet, it is noted that Mr. Tshiani-Levine had filed voluminous materials on the day of the motion, resulting in the motion being adjourned.

ii. On June 16, 2016, where Mr. Tshiani-Levine was seeking the disclosure of third-party documents. Doyle J. noted that Ms. Hormillosa had consented to the release of those documents but that the third parties had not disclosed the materials. The motion could not proceed because Mr. Tshiani-Levine had failed to serve the third parties with the motion materials. Ms. Hormillosa was ordered to disclose financial documents such as proof of income and RRSP.

iii. On February 2, 2017, where Doyle J. ordered that spousal support be terminated, and that Ms. Hormillosa repay the sum of $6,000 seized by the Family Responsibility Office.

62With respect to the remaining court attendances, there is no presumption of entitlement to costs because those matters were dealt with on consent, they were adjourned, there was shared success such as a resolution of issues during the settlement conference, or simply that the issue of costs was considered by the presiding judge and denied.

63If the Court was to accept that Mr. Tshiani-Levine is presumptively entitled to costs, for those three court appearances noted above, the Court finds that an award of costs would be nominal because for two of those court appearances (2013 and 2016), there were circumstances that would warrant a finding of shared success. Also, if costs were to be awarded, they would be limited to his lost wages as a self-represented litigant. However, as stated earlier, Mr. Tshiani-Levine has not provided sufficient evidence to determine the quantum of his lost wages, or any legal costs and disbursements incurred.

64In any event, because of Mr. Tshiani-Levine’s inappropriate behaviour throughout the proceedings, as described in the text below, the Court finds that no costs should be awarded for those three court appearances, as well as the other court appearances.

65Costs awards were made against Mr. Tshiani-Levine. He claims to have paid one of the costs orders in the amount of $1,000, but he was unable to provide any corroborative evidence of such payment. The Court finds that Mr. Tshiani-Levine is non-compliant with court orders.

66Also, Mr. Tshiani-Levine’s dishonesty led to unnecessary court proceedings. He was questioned during his cross-examination regarding his email exchange with Ms. Hormillosa that occurred prior to the court appearance before Doyle J. on February 28, 2017, where the pleadings were struck. On February 9, 2017, Mr. Tshiani-Levine wrote to Ms. Hormillosa to advise that he wished to settle the matter. The evidence suggests that afterwards, he sent a settlement agreement to Ms. Hormillosa. On February 22, 2017, he sent an email to Ms. Hormillosa, reminding her to sign the document which would finalize the matter. Ms. Hormillosa had questions, which were all answered by Mr. Tshiani-Levine. The email chain of February 22, 2017 ended with Ms. Hormillosa saying “I really appreciate for your response and I will signed and give it to the kids.”

67In his testimony, Mr. Tshiani-Levine denies receiving these signed documents from Ms. Hormillosa or that an agreement had been reached. Conversely, in line with the email exchange above, Ms. Hormillosa testified that everything had been settled and that the court proceedings were over. Like Doyle J., the Court accepts Ms. Hormillosa’s evidence in this regard. The Court concludes that Ms. Hormillosa signed the document prepared by Mr. Tshiani-Levine and gave it to him. If Mr. Tshiani-Levine had not received the agreement as he claims, he would have or should have reached out to Ms. Hormillosa, asking her to provide a copy in accordance with her last email dated February 22, 2017. Given that an agreement had been reached between the parties, the Court finds it disingenuous that Mr. Tshiani-Levine would have proceeded to the motion before Doyle J. on February 28, 2017. This type of conduct is underserving of being awarded any costs.

68Mr. Tshiani-Levine’s dishonesty continued before Audet J. at the hearing of the uncontested trial. This is yet another example of conduct that is underserving of being awarded any costs.

Disposition

69Mr. Tshiani-Levine has failed to convince the Court that he is entitled to legal costs, lost salary, disbursements, or expenses. His claim is dismissed.

Issue #2: What is the proper division of the parties’ respective pensions?

70The issue of the division of pensions has been an ongoing dispute since the commencement of the application in 2012.

71The delay in advancing this issue to trial is shared between the parties, with the lion share being attributed to Mr. Tshiani-Levine.

Historical review of the pension issue

72In Ms. Hormillosa’s application, she plead that both parties had employment pensions that required further valuation.

73On August 14, 2014, Mackinnon J. noted that both parties had retained Mr. Martel regarding the pension valuation.

74On March 20, 2015, Kane J. wrote in his endorsement that both parties agree to share equally their individual pension contributions and credits. It was reiterated that both parties agree to jointly retain Mr. Martel to value each of their pension entitlements.

75On January 4, 2016, Labrosse J. noted that both parties had not complied with Kane J.’s order of jointly retaining Mr. Martel. As such, the matter was removed from the trial list.

76On June 30, 2016, it was ordered by Doyle J. that Ms. Hormillosa disclose the pension entitlement from the Province of Quebec.

77On January 11, 2018, the matter proceeded to an uncontested trial and Audet J. orders, amongst other things, that each party retain their own pension.

78On August 21, 2018, Doyle J. sets aside Audet J.’s order regarding the pension issue, and states that Mr. Tshiani-Levine lacked candor and frankness before Audet J., and he lacked truthfulness vis-à-vis Ms. Hormillosa.

79On March 18, 2019, the Trial Scheduling Endorsement Form sets out that there are two issues at trial: (i) division of the pension; and (ii) costs incurred by Mr. Tshiani-Levine. It is noted that Mr. Tshiani-Levine is questioning Mr. Martel’s competency.

80The trial commenced on February 1, 2021. At the outset of trial, counsel for Ms. Hormillosa advised that the parties agreed not to call Mr. Martel as a witness at trial. Mr. Tshiani-Levine objected and indicated that he wished to cross-examine Mr. Martel on his expertise. He argued that Mr. Martel’s report was incorrect. He stated that he was going to rely upon federal administrative pension valuation. However, Mr. Tshiani-Levine had not yet obtained his valuation from the federal government.

81Once the testimonies of Mr. Tshiani-Levine and Ms. Hormillosa were completed, the trial was adjourned. The trial was to resume with the testimony of Mr. Martel.

82A trial management case conference was held on July 27, 2021. Mr. Tshiani-Levine had obtained his federal administrative pension valuation and he took the position that an actuarial valuation was not necessary.

83On September 13, 2021, in accordance with the Ontario Court of Appeal decision in Van Delst v. Horonowsky, 2020 ONCA 329, the Court ruled that an actuarial valuation was required. Mr. Tshiani-Levine disputed Mr. Martel's objectivity. He was permitted to retain his own actuary and serve an expert report within 60 days of the Court’s decision.

Expert reports

84On consent, the expert reports were admitted into evidence and none of the parties required to cross-examine either expert.

Mr. Guy Martel

85Mr. Martel prepared three reports: (i) capitalized value of accumulated pension entitlements under Ms. Hormillosa’s Régime de retraite des employés du gouvernement or organismes publics (“RREGOP”); (ii) capitalized value of accumulated pension entitlements under Ms. Hormillosa’s Nursing Homes and Related Industries Pension Plan (“NHRIPP”); and (iii) capitalized value of accumulated pension entitlements under Mr. Tshiani-Levine’s federal pension pursuant to the Public Service Superannuation Act (“PPSA”). Mr. Martel used the date of separation (March 28, 2011) as the valuation date.

86Mr. Martel’s calculated family law values were as follows:

i. RREGOP - $5,170, less a tax adjustment at 11.1%, for a total net value of $4,596.

ii. NHRIPP - $10,045, less a tax adjustment at 11.1%, for a total net value of $8,930.

iii. PPSA - $176,797, less a tax adjustment at 20.3%, for a total net value of $140,907.

Kelley McKeating

87Ms. McKeating was retained by Mr. Tshiani-Levine to calculate the valuation of his PPSA. Like Mr. Martel, the valuation date used was March 28, 2011. She determined the family law value to be $204,397, less a tax adjustment at 19%, for a total net value of $165,562.

Position of the parties

Ms. Hormillosa

88At the outset of trial, counsel for the Applicant acknowledged that Mr. Martel’s reports were outdated and did not consider the Van Delst decision. Ms. Hormillosa was to obtain an updated report from Mr. Martel, but this was not done.

89Ms. Hormillosa obtained the administrative pension valuations. For the RREGOP, the family law value is $6,062, and for the NHRIPP, the family law value is $9,819.49.

90To simplify the process, Ms. Hormillosa is prepared to concede to the higher value, namely the administrative pension valuations for both the RREGOP and the NHRIPP.

91Ms. Hormillosa suggests using the taxation rates previously set out by Mr. Martel of 11.1% for her and by Ms. McKeating of 19% for him.

92Regarding interest, Ms. Hormillosa argues that it should be payable as of 2011. Mr. Tshiani-Levine has deprived her of accessing her share of his pension since 2011. She says that she could have invested this amount and accumulated interest. Any delay of having this issue resolved is attributable mostly to Mr. Tshiani-Levine.

Mr. Tshiani-Levine

93Mr. Tshiani-Levine argues that Ms. Hormillosa’s pension should be divided as of the date of cohabitation and not the date of separation.

94With the above-noted caveat, he accepts Ms. Hormillosa’s proposal of using the administrative pension valuations for the RREGOP and NHRIPP. He therefore seeks the following division:

i. $4,909.74 (50% of the net value of $9,819.49) for the NHRIPP.

ii. $10,864.50 (50% of the net value of $21,729) for the RREGOP.

95He accepts to use Ms. McKeating’s valuation for his PPSA in the amount of $165,562.

96Regarding interest, Mr. Tshiani-Levine submits that no interest should be paid. Ms. Hormillosa was ordered to obtain a pension valuation by Kane J. in March 2015 and by Labrosse J. in January 2016. Mr. Tshiani-Levine obtained his valuation from Mr. Martel in January 2016, while Ms. Hormillosa did not obtain her valuations until November 2018.

Analysis

97There is a disagreement amongst the parties regarding the calculation of the tax adjustments that should apply to the pensions. Because the experts did not testify, the Court did not have the benefit of receiving their respective expert testimony on the calculation of the tax adjustment.

98Also, Mr. Tshiani-Levine’s pension is larger than Ms. Hormillosa’s pensions. The difference between the pensions will be going to Ms. Hormillosa, who advises the court that her share will be transferred into a retirement vehicle.

99Therefore, in the circumstances, the Court does not find that it is appropriate or necessary to apply a tax adjustment. The fairest approach is to use the gross values of the pensions.

NHRIPP

100As agreed between the parties, the administrative pension valuation will be used to calculate the NHRIPP pension entitlement. The family law value that is set out on this valuation is $9,819.49. The Court agrees with Ms. Hormillosa that this amount is the gross value calculated by the pension administrator, and not the net family value as suggested by Mr. Tshiani-Levine.

101Fifty percent of the gross family value is $4,909.75.

RREGOP

102As agreed between the parties, the administrative pension valuation will be used to calculate the RREGOP pension entitlement. The pension administrator provides the following calculations:

i. $6,062 during the period of marriage (September 5, 1998 to April 30, 2001).

ii. $21,726 during the period of participation (October 16, 1993 to April 30, 2001).

103Mr. Tshiani-Levine is seeking to use the amount that represents the accrual of Ms. Hormillosa’s pension from the time that she commenced working in October 1993, which is well before the marriage in September 1998 or their cohabitation in 1995. He argues that it would be unjust if the period of cohabitation was not taken into consideration. During his cross-examination, he spent a lot of time questioning Ms. Hormillosa regarding their cohabitation, pre-marriage.

104Mr. Tshiani-Levine asks that the Court exercise its discretion under s. 5(6) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) and utilize the premarital accruals in the pension division calculation.

105Section 4(1)(c) of the FLA provides that the value of the pension be imputed from the date of marriage until the date of valuation.

106In the Court’s view, Mr. Tshiani-Levine’s entitlement is limited to the period of marriage and there is no reason to deviate from s. 4(1)(c) of the FLA. This is not one of those exceptional cases that calls for an unequal division. There is no evidence of unconscionability or unjust enrichment, warranting that Mr. Tshiani-Levine is entitled to a larger share of the RREGOP.

107Therefore, the gross family law value to be used is $6,062. Fifty percent of the gross family value is $3,031.

PPSA

108On consent, the gross net family law value is $204,397. Fifty percent of the gross family value is $102,198.50.

Interest

109Both parties played a role in delaying this matter.

110Ms. Hormillosa has not always disclosed her financial information in a timely manner. Regarding her pension calculation, despite the 2015 and 2016 court orders requiring her to obtain a pension valuation from Mr. Martel, these were not produced until November 2018.

111That said, as indicated earlier, Ms. Hormillosa was under the belief that all matters had been settled as of the end of February 2017. But for Mr. Tshiani-Levine’s dishonesty, this matter would have, or should have, been resolved at that time.

112Although Mr. Tshiani-Levine obtained his pension valuation from Mr. Martel in January 2016, he refused to accept Mr. Martel’s calculations, causing delays at trial. Furthermore, he did not produce a proper pension valuation until mid-trial. He unsuccessfully wished to rely upon his federal administrative pension valuation.

113Accordingly, because of the shared responsibility in the delay of these proceedings, the Court finds that interest should start accumulating as of March 1, 2017.

Disposition

114Ms. Hormillosa shall transfer to Mr. Tshiani-Levine the amount of $4,909.75, plus interest commencing on March 1, 2017, from her pension with NHRIPP.

115Ms. Hormillosa shall transfer to Mr. Tshiani-Levine the amount of $3,031.00, plus interest commencing on March 1, 2017, from her pension with RREGOP.

116Mr. Tshiani-Levine shall transfer to Ms. Hormillosa the amount of $102,198.50, plus interest commencing on March 1, 2017, from his pension with PPSA.

117All pension transfers shall be submitted within 60 days of the release of these Reasons for Judgment. Both parties shall provide documentary proof of submission of the application for pension division to their respective pension administrators. Each party shall be responsible for any legal and administrative fees associated with the distribution of the pension entitlement in their name.

Conclusion

118For these reasons, the Court makes the following orders:

i. Mr. Tshiani-Levine’s claim for legal fees, lost salary, disbursements, or expenses, is dismissed.

ii. Ms. Hormillosa shall transfer to Mr. Tshiani-Levine the amounts of $4,909.75 and $3,031.00, plus interest commencing on March 1, 2017, from her pensions with NHRIPP and RREGOP, respectively.

iii. Mr. Tshiani-Levine shall transfer to Ms. Hormillosa the amount of $102,198.50, plus interest commencing on March 1, 2017, from his pension with PPSA.

iv. All pension transfers shall be submitted within 60 days of the release of these Reasons for Judgment. Both parties shall provide documentary proof of submission of the application for pension division to their respective pension administrators. Each party shall be responsible for any legal and administrative fees associated with the distribution of the pension entitlement in their name.

119On the issues of costs for this proceeding, Ms. Hormillosa shall deliver written submissions, limited to five pages excluding the Bill of Costs and Offers to Settle, within 60 days of the release of these Reasons for Judgment. Mr. Tshiani-Levine shall then deliver responding written submissions, with the same page restrictions, within 30 days thereafter.

M. Smith J