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In a recent case, an Ontario court expressed its concern about the manner in which two parties had engaged in a protracted 9-day trial to determine their property issues. What happens when, as the court stated, the process “has taken over, to the detriment of both parties”?

The Background

The parties were married for four years.

The parties became embroiled in family law litigation after their marriage had failed. In the action, the wife had claimed $450,000. The wife was ultimately awarded $83,851.40, which represented approximately 18% of her claim. Her claims for unjust enrichment, constructive trust, proprietary estoppel, loss of future income and compensation for emotional and physical damages related to her role in pursuing IVF treatments were all dismissed.

Before trial, the wife had served an offer to settle for payment of $300,000 and the husband had served an offer to settle in the amount of $9,000.

When exercising its discretion to award costs, the court may consider the following factors (in addition to the result in the proceeding and any offer to settle or to contribute made in writing):

  • the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
  • the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
  • the amount claimed and the amount recovered in the proceeding;
  • the apportionment of liability;
  • the complexity of the proceeding;
  • the importance of the issues;
  • the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
  • whether any step in the proceeding was improper, vexatious or unnecessary, or taken through negligence, mistake or excessive caution
  • taken through negligence, mistake or excessive caution;
  • any other matter relevant to the question of costs.

The Court’s Decision

In making its order for costs, the court found that neither party’s offers to settle were reasonable given the outcome of the trial. However, it was the wife’s choice to seek multiple remedies that led to the case being over-litigated. The court stated that this matter could have been dealt with in one day to one and a half days without the wife’s claims for extraordinary remedies.

The court concluded that the apportionment of liability was directly related to the number of claims by the wife that were dismissed, as well as her one claim (for an uneven share of the net family property) that was allowed. It explained:

The proceedings were made unreasonably complex by the number of unsuccessful claims. The issues are important, but should have been narrowed. I find the conduct of the [wife] tended to lengthen unnecessarily the duration of the proceeding that should have taken a day to one day and a half, at most, ended up taking nine days of court time. I find that claiming those extraordinary remedies, that were all dismissed, was unnecessary and resulted in an exceptional example of over litigation in circumstances where it was clearly unwarranted.

The court noted that in order to defend himself, the husband was required to address a range of claims and review an unreasonable amount of paper filed by the wife.

In the end, the court awarded the wife $13,560 of her costs and awarded the husband $94,822.47 of his costs, which resulted in the wife owing the husband $81,262.47 in costs.

Lessons Learned

It is important to be reasonable when deciding on which claims to make in a family law proceeding. If you have questions about how to proceed with your case, it is best to speak with a lawyer. At Gelman & Associates, our lawyers provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at 1-844-769-0737, or contact us online to schedule an initial consultation.

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