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Unreasonable Claims = Divided Success = Divided Costs

The shotgun approach to litigation carries significant risk. It is incumbent on counsel to assess the likelihood of success in each claim made well before trial.  Claims that have little likelihood of success should be withdrawn as early as possible and certainly not taken to trial.

This was brutally apparent in the recent costs ruling in the family law case Calver v. Calver, 2019 ONSC 7317. The claims and offers are summarized concisely as follows:

[3]               The applicant herein claimed $450,000. She was awarded $83,851.40, being approximately 18% of her total claim. The applicant’s offer to settle, served prior to trial, was for payment of $300,000.  She was awarded approximately 28% of that claim.

[4]               The respondent herein served an offer to settle prior to trial in the amount of $9,000.  In my view, neither of those offers were reasonable given the outcome of the trial.

[5]               The applicant’s 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.

[6]               The applicant’s claim for an unequal division of the net family property was successful.

The trial took nine days to complete. Although the Applicant was successful on one of her claims she was unsuccessful in all others. The judge found that one and a half days was a reasonable estimate of time to try the successful claim. He therefore awarded costs to the Applicant for one and a half days and costs to the Respondent for seven and a half days:

[15]           I find that the applicant was successful in her claim for an uneven share of the NFP in the amount awarded. I also find that the evidence and argument to conclude that portion of the action would have taken no more than one to one and a half days out of the nine days of trial. I, therefore, award the applicant her costs for that time, being approximately 16% of the claim. Her total claim for costs is in the amount of $84,750 and I therefore award her $13,560 of her costs. The respondent was successful in defending all other claims, as set out above and in the judgment herein. He is therefore awarded 84% of his party and party costs of $112,883.90 for a total of $94,822.47 costs in this action. Setting off those two claims, the applicant owes the respondent $81,262.47 in costs.

[16]           That amount is to be credited to the respondent to reduce the award of $83,851.40 owed to the applicant by the respondent as awarded in the judgment to a final amount of $2,588.93 owed by the respondent to the applicant to satisfy the judgment herein. That amount is payable forthwith.

This ruling does not address the amounts paid and owing by the Applicant to her own counsel.

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