COURT FILE NO.: 1320/16

DATE: 2023/10/12

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Tracy Lee Brennan

Peter Eberlie, for the Applicant

Applicant

• and -

Geoffrey Henry Fournie

Kimberly Doucett, for the Respondent

Respondent

In Writing

COSTS ENDORSEMENT

Costs of trial proceedings before Justice D.A. Aston

1The Honourable Justice David Aston presided over the trial of this matter. He retired on April 30, 2023 but released reasons and supplementary reasons on July 13 and 25, 2023, respectively.¹

2Lengthy cost submissions were delivered by the parties in August 2023.² By then, the trial judge was no longer in a position to decide the issue of costs.³ That task has been passed on to me. In addition to the materials to which I have referred, I have had the benefit of the detailed notes the trial judge left behind.

3This application began in the fall of 2016. It culminated in a 16-day trial that was conducted in March and April 2023.

4Based on the result, an offer to settle dated February 10, 2023 and allegations of misbehaviour by the Respondent, the Applicant claims costs on a full indemnity basis in the amount of $375,000.⁴

5The Respondent takes the entirely opposite position. In addition to claiming to have had more success, he argues that it was the Applicant who took positions that were “unreasonable on many of the issues” and that she “acted in bad faith.”⁵ Those assertions underlie the Respondent’s claim to substantial indemnity costs in the all-inclusive amount of $587,738.68.

6A few preliminary observations are in order.

7First, the amounts in issue here are in addition to those incurred and sought during numerous skirmishes along the way. Several, significant cost awards have already been made.

8Second, I cannot help but make the sad observation that between them, the parties managed to incur legal costs that exceed their combined net worth when they separated more than seven years ago. Emotion won. How sad.

9In their cost submissions the parties engaged in a lengthy debate concerning relative “success”. They acknowledge that neither party was wholly successful at trial. However, each claims to have obtained a more favourable result. I start my analysis there.

10The trial judge’s conclusions that (i) the Applicant and Respondent were, for many years, involved in an economic partnership; (ii) the matrimonial home was owned by the parties jointly and equally; (iii) the Respondent was solely responsible for a line of credit extended by Bank of Montreal; (iv) the Applicant was entitled to an equalization payment of $121,236.28 on account of the parties’ savings and investments; and (v) spousal support was payable by the Respondent for an indefinite period, are ones favourable to the Applicant.

11Aston J.’s findings that: (i) the Respondent was entitled to deduct the sum of $8,849 on account of items that were not part of the joint family venture; (ii) no income was to be attributed to either party except the Applicant for the period from November 2016 through June 2017⁶ and from July 2019 onward;⁷ and (iii) the parties cohabited for a period of 21 ½ years, benefitted the Respondent. Further, based on the trial judge’s findings at trial, the parties agreed that the Respondent would receive the sum of $27,213.19 as a retroactive adjustment of child and spousal support for the period from April 12, 2016 to September 30, 2023.

12However, it is clear that the matters the Respondent could, properly, include in his “win” column were of far less importance that those appropriately assigned to the Applicant. The monetary deduction from the amount owing on account of the equalization of savings and investments was modest. Income was not attributed to the Applicant for as long or to the extent the Respondent sought. The shorter period of cohabitation did not significantly impact the monthly amount awarded on account of spousal support. Although the Applicant had not conceded that any retroactive adjustment in the Respondent’s favour was appropriate, it was much less than he had sought.

13In terms of the evidence portion of the trial, it appears that about four days of trial time was spent on each of the property/joint venture and spousal support claims. About the same period was devoted to the income imputation issue relating to the Applicant. Evidence addressing the imputation of income to the Respondent took about a day. The valuation of the matrimonial home and household contents took a little longer. Clearly, the bulk of the trial was devoted to the issues decided in the Applicant’s favour. To be clear, I am of the view that she was the more successful party. Success was, however, divided.

14That brings me to offers to settle. Comprehensive ones were exchanged in early 2023. The Applicant’s were dated January 16 and February 10, 2023. The Respondent delivered a counterproposal to the initial offer dated January 25, 2023. The offers dated January 25 (the Respondent’s) and February 10, 2023 (the Applicant’s) were outstanding at the time of trial.

15In fact, many offers had been exchanged over the years, although there appears to have been a long gap between February 2017 and September 2022. Most of the pre-2023 versions were delivered by the Applicant and proposed terms that would have resolved specific issues.

16As noted, the Applicant’s final offer is a foundation for her claim to full indemnity costs. It withdrew all previous offers.⁸ Insofar as the joint venture claim is concerned, the Applicant fared better at trial. The resolution she proposed in relation to the matrimonial home was, essentially, what was ordered. She sought slightly more than was awarded for spousal support. The adjustment the Applicant proposed on account of retroactive child and spousal support was far off the numbers the parties negotiated with the benefit of the findings made at trial.

17Consequently, the offer of the Applicant that was open for acceptance at the commencement of trial does not create a presumptive entitlement to full indemnity costs.⁹

18Nonetheless, the Applicant’s view of the case was far more realistic. The Respondent’s offer of January 25, 2023 was well off the mark. He was only willing to pay the Applicant a fraction of her entitlement in the matrimonial home. No value was attributed to the joint venture claim. Acceptance would have obligated the Applicant to satisfy one-half of the amount owing on the line of credit. Under the Respondent’s offer, far more income would have been attributed to the Applicant. That would have resulted in an overpayment of spousal support of $171,249 that the Applicant would have had to repay. The spousal support obligation of the Respondent would have been more modest and would have terminated on October 1, 2026.

19Caution should be exercised when viewing matters with the benefit of hindsight but respectfully, it is patently clear from the trial judge’s factual findings that the Respondent’s offer did not warrant serious consideration. Tokenism comes to mind. The Applicant, on the other hand, demonstrated a sincere willingness to compromise. Those are relevant considerations when deciding the issue of costs.¹⁰

20Finger pointing also featured prominently in the parties’ submissions. The Applicant alleges the Respondent’s misbehaviour occurred before and during this proceeding. By way of example only, she maintains that the Respondent transferred the matrimonial home from her own name into both names because she was “duped”. During the proceeding, she says, financial disclosure by the Respondent was incomplete, untimely and when made, consisted of disorganized “paper dumps”. At para. 148 of her initial cost submissions, the Applicant said, in part:

… [The Respondent] was not paying personally for his legal costs and his approach to litigation was to cause and cost [the Applicant] as much aggravation and cost as possible.

21The Respondent, on the other hand, has compiled his own long list of grievances. The Applicant, he says, delayed the matter in various respects. His counsel’s attempts to move the matter forward were ignored or obstructed.

22Bluntly, by the time the review of the parties’ second tranche of cost submissions was complete, their complaints about the other closely resembled white noise with an overlay of “blah blah blah”.

23No one can escape some measure of blame given the passage of so much time, the expenditure of so much money and the use of so much precious court time. Head shaking is appropriate. Chest thumping is not. Proportionality is not a word that seems to have resonated with the parties.

24With that, I near the end. I have not forgotten FLR, rule 24. I have carefully considered subrules 24(1), (4), (5), (6), (8) and (12). Rule 18(16) has also been borne in mind. In addition to the matters I have already addressed, it is apparent from the trial judge’s reasons that the proceeding was factually complex given the nature and number of the issues that were not resolved by the parties. They were of significant importance to them from a financial perspective. Each side was well aware that no expense was being spared by the other. Experts were retained, provided opinions and testified. The volume of evidence the parties marshalled and introduced informs their reasonable expectations concerning legal costs. I reviewed almost 100 pages of costs submissions, exclusive of the attachments. This was a struggle of titanic proportions.

25The objective, of course, is to award an amount that is fair and reasonable for the unsuccessful – in this case less successful – party to pay.

26In my view, in all the circumstances of this case and despite divided success, the Applicant is entitled to an award of costs. The all-inclusive sum of $165,000 is fair and reasonable.¹¹ That sum is payable by the end of the business day on November 14, 2023.

Footnotes

1. 1They are reported at 2023 ONSC 4130 and 2023 ONSC 4341.
2. 2The court received and reviewed Costs Submissions of the Applicant and the Respondent’s Cost Submissions for Trial, each dated August 16, 2023 and the Responding Costs Submissions of the Applicant and the Respondent’s Reply Cost Submissions for trial, each dated August 28, 2023.
3. 3See, s. 123(2) of the Courts of Justice Act.
4. 4That amount appears to be exclusive of almost $30,000 in disbursements and H.S.T.
5. 5These excerpts are dran from para. 10 of the Respondent’s cost submissions for trial.
6. 6At the rate of $30,000 per year.
7. 7At the rate of $60,000 per year.
8. 8See para. 12 of that document.
9. 9FLR, rule18(14).
10. 10FLR, rule 18(16).
11. 11If an allocation is needed, I would have allocated $152,500 to fees and $12,500 to disbursements, inclusive of H.S.T. in both instances.