This costs decision arose from a divorce action following a long and protracted litigation with hundreds of documents filed including pleadings, applications, affidavits, and Orders.

Prior to Trial, the Plaintiff alleged that the Defendant spouse was hiding funds and that he had transferred property into the hands of non-arm’s length parties. The Plaintiff was unsuccessful in establishing the allegations at trial. Regardless, the Plaintiff argued that the parties had mixed success and neither party should be awarded their costs.

The Defendant argued for solicitor-client costs and, while recognizing that it was difficult litigation, the Court held that it could not be found that there was positive misconduct by the Plaintiff that was reprehensible, scandalous, or outrageous to award such costs.

In the alternative, the Defendant sought costs under column 4 or column 5 of Schedule C. Notably, the Plaintiff sought child and spousal support and an equal distribution of the parties’ matrimonial property which would put her in the range of column 4 but the Court, applying the principles under Rule 10.33 and 10.31, determined it could not support a costs award in this range and awarded a lesser amount.

In making its finding, the Court noted that the Plaintiff erred in pursuing her claims as aggressively as she did since the certainty she sought through her ceaseless requests for disclosure was unattainable given the way the parties dealt with their assets and co-mingled funds. Further, while successful, the Defendant spouse’s record-keeping made the litigation much more difficult. Additionally, non-spouse Defendants were added to the litigation given the Defendant spouse’s record keeping, fluid understanding of money, and intermingled transactions which made it difficult for the Plaintiff to understand what amounted to matrimonial property and what did not.