



COURT OF APPEAL FOR ONTARIO

CITATION: Ludmer v. Ludmer, 2014 ONCA 827

DATE: 20141121

DOCKET: C56795

Blair, Juriansz and Epstein JJ.A.

BETWEEN

Lisa Ludmer

Applicant (Respondent)

and

Brian Ludmer

Respondent (Appellant)

and

Gary Spira

Third Party (Respondent)

Gary S. Joseph and Rebecca Winninger, for the appellant

Lisa Ludmer, acting in person

Rebecca Grosz, for the third party respondent

Heard: October 21, 2014

On appeal from the order of Justice Michael A. Penny of
    the Superior Court of Justice, dated February 11, 2013, with reasons reported
    at 2013 ONSC 784, and a related costs order dated August 20, 2013.

R. A. Blair J.A.:

Background

[1]

After nearly 20 years of marriage, Lisa and Brian Ludmer separated. There
    are two children of the marriage, both adults and at the time of trial, both
    attending university.

[2]

Commendably, they agreed upon issues relating to custody and access, by
    way of a joint parenting plan. However, in all respects relating to the
    financial and property issues arising out of their separation they have engaged
    in scorched-earth litigation warfare. Each accuses the other of having litigated
    with impunity.

[3]

By all accounts the Ludmers are able individuals. During their marriage,
    they enjoyed a relatively upper middle-class lifestyle in North Toronto. Mr.
    Ludmer worked hard as a corporate and securities lawyer, rising through the
    ranks to partner in three Toronto law firms. His practice declined, however,
    and at the end of 2004 he was let go. In 2005 he re-commenced practice as a
    sole practitioner, and since then has re-invented himself as a successful
    family law lawyer. Ms. Ludmer worked as a placement consultant and recruiter at
    various personnel placement firms and on her own with some interruption for her
    child-rearing responsibilities when the children were young. After the
    separation, she began, once again, to work outside the home.

The
Family Law Act
and Support Claims (The Ludmer action)

[4]

The claims as between Mr. Ludmer and Ms. Ludmer revolved around the
    financial and property issues arising out of their marriage, including child
    and spousal support and the equalization of family property. There were many
    interlocutory and other proceedings prior to trial. One involved a dispute in
    the province of Québec over disclosure of information relating to a family
    trust established by Mr. Ludmers father of which Mr. Ludmer is a beneficiary. That
    dispute made its way through the Superior Court of Québec, the Court of Appeal
    of Québec, and an application for leave to appeal to the Supreme Court of
    Canada.

[5]

The trial of the Ludmer action finally took place over 13 days in
    October and November 2012, before Penny J. On February 11, 2013, he released a
    thorough and carefully reasoned 51-page decision. Mr. Ludmer was successful in
    some respects, Ms. Ludmer in others. On August 20, 2013, after hearing
    submissions, the trial judge ordered that each party should bear their own
    costs.

The Spira Action

[6]

Penny J. also dealt with a separate proceeding commenced by Mr. Ludmer
    against a former neighbour, Gary Spira. This proceeding (the Spira action)
    was initially a civil claim for invasion of privacy, intentional infliction of
    mental distress, and for injunctive relief under s. 35 of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12, (the CLRA) essentially on the
    basis that Mr. Spira was an officious intermeddler in the dispute between the
    Ludmers. The claim for injunctive relief was not actively pursued after Mr. Spira
    ceased his interventions. These three claims were ultimately dismissed in the
    civil context. In 2008, the appellant added these claims to his family law
    proceedings and they were heard at the same time.

[7]

The substantive complaints in the Spira action were two-fold: (i) that
    Mr. Spira had interfered in Mr. Ludmers relationship with his children and was
    blindly aligned with Ms. Ludmer in a campaign to do so; and (ii) that Mr. Spira
    had invaded Mr. Ludmers privacy by intercepting and reading his private, and
    in some cases privileged, electronic communications and forwarding them to Ms.
    Ludmers lawyers. The trial judge dismissed these claims and awarded costs of $125,000
    plus HST and disbursements of $5,223.01.

Analysis

The Ludmer Action

[8]

For purposes of the appeal the main financial and property issues
    resolved at trial were:

(a) the validity and enforceability of a marriage contract
    entered into by the Ludmers following their marriage;

(b) ownership of the matrimonial home;

(c) equalization of family property and excluded property in
    that context; and

(d) four issues relating to support:

(i) determination of the parties income;

(ii) child support;

(iii) spousal support; and

(iv) s. 7 expenses.

[9]

Mr. Ludmer was successful in establishing that the marriage contract was
    valid and enforceable and, accordingly, that his interest in the family trust
    was not to be included in the equalization payment calculation. This was a
    significant outcome for him: we are advised that his contingent interest in the
    trust is approximately $6 to $8 million. An additional benefit of this finding
    was that Mr. Ludmer had a positive balance of approximately $270,000 by way of
    equalization.

[10]

At
    the same time, however, Mr. Ludmer was unsuccessful in his claim to an 80 per
    cent ownership interest in the matrimonial home  the trial judge found the
    couple owned it equally  and was required to pay Ms. Ludmer the sum of
    $244,500 with respect to the post-separation increase in its market value. He
    was successful in excluding certain loans made by his father from his income
    for support purposes, but was unsuccessful in sustaining his net income as
    claimed as a result of the trial judges decision not to accept his business
    deductions entirely for that purpose. He was required to pay arrears of child
    support and a lump sum payment to Ms. Ludmer in the amount of $432,000, on
    account of spousal support.

[11]

When
    all of the various claims were set off against each other, Mr. Ludmer was
    required to pay Ms. Ludmer a net amount of $194,434.

[12]

This
    appeal concerns the issues on which Mr. Ludmer was unsuccessful and the
    findings made against him. On his behalf, Mr. Joseph raises many grounds of
    appeal. He argues that the trial judge erred:

a)

in calculating the parties income (by failing to accept Mr. Ludmers
    business expenses for the purposes of spousal support, and by failing to
    include the proceeds of both parties RRSPs in income for child support
    purposes);

b)

in determining spousal support on both a compensatory and needs basis;

c)

in failing to adjust his lump sum spousal support award for tax
    consequences, present value discounting, and future contingencies;

d)

in failing to deduct spousal support from his income for the purpose of
    allocating s. 7 expenses;

e)

in allocating all of the 2005 s. 7 expenses to Mr. Ludmer;

f)

in ordering the parties to bear their own costs; and

g)

in failing to determine previous motion costs that had been deferred to
    the trial judge.

[13]

Ms.
    Ludmer concedes ground (d) above. Section 3.1 of Schedule III of the
Federal
    Child Support Guidelines
, SOR/97-175 (the
Guidelines
), provides
    that spousal support payable is to be deducted from the payors income for the
    purposes of the s. 7 calculation. The parties agree that this correction
    increases the amount that Ms. Ludmer owes to Mr. Ludmer for her contribution to
    s. 7 expenses by $38,096.36. This reduces the net amount owing by Mr. Ludmer to
    Ms. Ludmer from $194,434 to $156,337.64. The judgment below will be varied
    accordingly.

[14]

I
    otherwise reject the appellants grounds for appeal. For the most part they
    involve an attack on the trial judges findings of fact, all of which were
    amply supported on the record. It is well established that the standard of
    review in family law litigation promotes finality and recognizes the importance
    of the appreciation of the facts by the trial judge. An appeal court may
    intervene only when there is a material error, a serious misapprehension of the
    evidence, or an error in law.

Business Expenses Deductions

[15]

Mr.
    Ludmer led evidence from his accountant to establish that the business
    deductions claimed for his one-person law practice were proper for income tax purposes.
    No one contests that. The trial judge concluded  correctly  however, that [t]he
    fact that a business expense is legitimate for tax purposes does not mean
    that the same deduction is reasonable for support purposes.

[16]

Mr.
    Joseph accepts this general legal proposition, but argues that the trial judge
    erred in arbitrarily arriving at a 50 per cent threshold for business expenses
    in relation to gross income. I do not agree.

[17]

Mr.
    Ludmer argued at trial that his expenses were high because he was required to
    spend larger amounts on publications, technology, secretarial staff and
    paralegal staff, in order to promote himself and to build his new practice. The
    trial judge accepted this argument for the early years. He concluded, however,
    that once [Mr. Ludmers] practice was up and running and generating
    substantial revenues starting in 2009, closer scrutiny [was] warranted.

[18]

In
    the years 2009, 2010, and 2011, Mr. Ludmer claimed that his business expenses,
    as a percentage of gross professional income, were 66.18 per cent, 56.99 per
    cent, and 78.42 per cent, respectively. The trial judge determined that to
    allow the full amount of Mr. Ludmers claim for home office, legal, vehicle,
    meals, entertainment, and, particularly, a 10 per cent of gross revenue
    deduction for expenditures on publications to sustain a one-person operation,
    was unreasonable for support purposes. It was not a fair barometer  on a
    common sense basis  of [the] income level that fairly and reasonably reflect[ed]
    the compensation available to [Mr. Ludmer] to pay support (at para. 157).

[19]

Determining
    child and spousal support is not an exact science. The trial judge lived with
    this case through 13 days of trial. Indeed, he had had prior exposure to the
    litigation through various interlocutory proceedings. He was well aware of the
    dynamics of the litigation, the relationship between the Ludmers, and the
    particulars of their lifestyle. In the end, he concluded that the fairest and
    simplest expedient in these circumstances [was] simply to find that [Mr.
    Ludmers] business expenses, for support purposes, cannot reasonably [exceed]
    50 per cent of gross revenue (at para. 159).

[20]

In
    my view, this approach was open to the trial judge in the circumstances, and I see
    no basis for interfering with it.

RRSPs

[21]

In
    2007 and 2008 each party cashed in RRSPs  Ms. Ludmer in the total amount of
    $347,057, and Mr. Ludmer in the total amount of $181,964. Clearly, the
    inclusion of these amounts in income would have favoured Mr. Ludmer in the
    calculation of child support. The trial judge did not do so.

[22]

This Court has held that RRSP income is presumptively part
    of a spouses income for child support purposes. That is because section s. 16
    of the
Guidelines
provides that a persons annual income for child
    support purposes is determined using the sources of income set out under the
    heading Total income on the T1 tax form. RRSP income is included as part of Total
    income on the T1 tax form: see
Fraser v. Fraser
, 2013 ONCA 715, 40
    R.F.L. (7th) 311, at para. 97.

[23]

The
    inclusion of RRSP proceeds is not mandatory, however, and the court has the
    discretion in appropriate circumstances to do otherwise. Section 17(1) of the
Guidelines
provides this flexibility:

If the court is of the opinion that the determination of a
    spouses annual income under section 16
would not be the fairest
    determination
of that income, the court may have regard to the spouses
    income over the last three years and determine an amount that is
fair and
    reasonable in light of any pattern of income, fluctuation in income or receipt
    of a non-recurring amount
during those years. [Emphasis added.]

[24]

Here,
    the trial judge excluded both parties RRSP proceeds from the calculation of
    their income for support purposes on the basis that they were non-repeating
    encroachments on capital. Ms. Ludmers financial statement indicated that she
    used her proceeds primarily to finance this costly litigation, not to enhance
    her lifestyle.

[25]

The
    trial judge did not state specifically that he was applying the analysis under ss.
    16 and 17 of the
Guidelines
when arriving at this decision. However,
    his reasons show that he was alive to the need to arrive at income levels that
    fairly reflected the financial capacities of the spouses for the purpose of
    support. In short, his reasons show that, in his view, including the RRSP
    proceeds in the parties incomes would not be the fairest determination of
    [the spouses incomes] for support purposes, and that in excluding them, he
    was arriving at an amount that was fair and reasonable in light of any pattern
    of income, fluctuation in income or receipt of a non-recurring amount.

[26]

I
    see no error in his decision to exclude the RRSP proceeds from income.

Spousal Support

[27]

Similarly,
    I see no error in the trial judges decision to award spousal support on both
    compensatory and needs-based grounds. He considered and applied the relevant
    law in this respect, and made findings of fact that were supported on the
    record.

[28]

Mr.
    Ludmer argues that Ms. Ludmer was not entitled to any spousal support. I do not
    agree.

[29]

It
    was open to the trial judge to find, as he did, that Ms. Ludmer was
    financially disadvantaged, at a personal level, by the allocation of roles
    during the marriage, that this affected her consulting business, and that she
    was unlikely to be able to replicate on her own the standard of living that
    the complete merger of [their] economic lifestyles had enabled the Ludmers to
    enjoy. This was sufficient, in my opinion, to justify a compensatory claim
    component in the spousal support award.

[30]

More
    generally  as he was required to do  the trial judge addressed the various
    factors relating to the condition, means, needs and other circumstances of
    each spouse in determining whether Ms. Ludmer was entitled to spousal support
    and, if so, the quantum to be awarded:
Divorce Act,
R.S.C. 1985, c. 3
    (2nd Supp.), s. 15.2(4). He summarized his conclusions, at para. 249 of his
    reasons, as follows:

With respect to the specific monthly amount of support, I have
    considered the condition, means, needs and other circumstances of each spouse,
    the Guideline amount, the result of the equalization calculation and the
    distribution of property between the spouses, the age and stage of the
    applicant, the ages and stages of the children, the work histories of the
    parties, the length of the marriage, the functions performed by each spouse
    during the marriage, the economic disadvantages to the applicant resulting from
    the marriage breakdown and the promotion of the applicants self-sufficiency.

[31]

The
    record supports that he did just that.

Lump Sum Adjustment

[32]

At
    the request of Mr. Ludmers counsel, the trial judge made a lump sum award for
    spousal support. His lump sum award of $432,000 represented the total of the
    monthly and annual support amounts that he had found to be payable for the
    years 2008 through 2015  the 8-year time-limited period for support that he
    had concluded was reasonable.

[33]

Mr.
    Ludmer objects because the trial judge did not adjust the $432,000 amount for
    tax consequences, present value considerations, and future contingencies. The
    trial judge recognized that there was support in the authorities for adjusting
    a lump sum representing future support payments for such factors. However, he
    concluded that in the circumstances of this case, such an adjustment was not
    needed. At para. 257 of his reasons he stated:

In this case, I do not think any adjustment is necessary. The
    period in question is relatively short. The lump sum I have awarded was
    determined based on my discretion taking into account a wide range of factors,
    not least of which [were] the consequences for the applicant of equalization
    and property division in this case. Five of the eight years have already gone
    by. Had there been discounting on account of taxes, the amount of support
    awarded would have been proportionately higher.

[34]

This
    conclusion was reasonable in the circumstances, in my view.

Section 7 Expenses

[35]

In
    varying annual amounts from 2005 to 2012, Mr. Ludmer paid a total of
    $606,577.12 for childrens expenses such as their Hebrew day school, a nanny,
    Kyles hockey, post-secondary school, and summer camp. It is not contested that
    these were appropriate special or extraordinary expenses under s. 7 of the
Guidelines
in accordance with the parties lifestyle prior to separation or that Ms.
    Ludmer paid nothing towards them and, indeed, acquiesced in them for the most
    part.

[36]

Recognizing
    that s. 7 expenses are generally to be shared by parents in proportion to their
    incomes, but that he had the discretion to decide otherwise, the trial judge
    arrived at a calculation that required Ms. Ludmer to pay Mr. Ludmer a total of
    $181,790. As noted above, Ms. Ludmer concedes that the trial judge erred in
    failing to take into account support payments ordered in calculating these
    payments and that the appropriate amount owing by her is $219,886.36.

[37]

The
    trial judge did not allocate any of the s. 7 expenses for the year 2005 
    $84,751.97  to Ms. Ludmer, however. Mr. Ludmer argues he erred in that
    respect.

[38]

Mr.
    Ludmer had no income in 2005. He funded the s. 7 expenses through loans made to
    him by his father. For reasons that are not germane to the appeal, the trial
    judge concluded that the loans received would not form part of Mr. Ludmers
    income for support purposes. He took a different view of them for s. 7
    purposes, however, rejecting the argument that the principle gifts are not
    income was dispositive of the s. 7 issue as well.

[39]

In
    the trial judges view, s. 7 expenses of almost $85,000 in a year when Mr.
    Ludmer had zero income (and Ms. Ludmer only $66,809) were simply not reasonable
    when this couple could not possibly have afforded [them] on the basis of their
    own incomes. The fact that the expenses were funded entirely through family
    assistance opened up the issue of apportionment and enabled the trial judge to
    look beyond the parties respective incomes. Requiring Ms. Ludmer to reimburse
    Mr. Ludmer for those payments, in the circumstances, was not appropriate.

[40]

In
    my view, it was open to the trial judge to come to this conclusion. In any
    event, the amount in issue would not be Ms. Ludmers share of $84,751.97. Because
    the expenses were funded through a loan, the amount in question would only be
    her share of the interest on the amount of the loan for that year. In the
    overall balancing of the financial issues between the parties, this would be a
    relatively insignificant amount.

The Spira Action

[41]

There
    is no merit in the appeal respecting the Spira action.

The Claim under Section 35 of the CLRA

[42]

Since
Frame v. Smith
, [1987] 2 S.C.R. 99, it has been clear

that no
    tort action exists for wrongful interference with access rights. The remedy
    against such interference is now governed by s. 35 of the CLRA
,
which
    provides for relief by way of a restraining order and a permanent injunction.

[43]

Mr.
    Ludmer commenced a claim for relief under s. 35. Understandably, he did not
    pursue that relief at trial because Mr. Spira stopped his conduct and the
    children were, by that time, adults. I do not think this Court should entertain
    and determine a claim that was not pursued at trial: see
York Region
    Condominium Corporation No. 890 v. RPS Resource Property Services Ltd.
,
    2012 ONCA 670, 6 B.L.R. (5th) 171.

[44]

Mr.
    Spira had brought a motion to quash the appeal in relation to the s. 35 claim
    on the foregoing basis. The motion was referred to the panel hearing the
    appeal. We advised counsel that the motion to quash and the appeal would be
    heard together, and that they should adapt their oral arguments accordingly. In
    view of the dismissal of the appeal on this ground, it is not necessary to deal
    with the motion to quash. It is therefore dismissed without costs.

Intentional Infliction of Mental Distress

[45]

As noted above, no separate tort action exists for the
    intentional infliction of mental distress based upon interference with a
    parents access rights. Relief in relation to such conduct is now incorporated
    in s. 35 of the CLRA.

[46]

Mr.
    Ludmer did not pursue his s. 35 claim at trial and cannot do so now on appeal.

Invasion of Privacy

[47]

This
    Court has recognized the tort of invasion of privacy  sometimes referred to as
    intrusion upon seclusion  in
Jones v. Tsige
, 2012 ONCA 32, 346
    D.L.R. (4th) 34. Sharpe J.A. identified the elements of the cause of action at
    para. 71 of his reasons:


The key features of this cause of action are, first, that the
    defendants conduct must be intentional, within which I would include reckless;
    second that the defendant must have invaded, without lawful justification, the
    plaintiffs private affairs or concerns; and third, that a reasonable person
    would regard the invasion as highly offensive causing distress, humiliation or
    anguish.

[48]

In
    this respect, he adopted, at para. 70 of his reasons, the essential elements of
    the action for intrusion upon seclusion from the
Restatement (Second) of
    Torts
§ 652B (2010), which states:

One who intentionally intrudes, physically or otherwise, upon
    the seclusion of another or his private affairs or concerns, is subject to
    liability to the other for invasion of his privacy, if the invasion would be
    highly offensive to the other person.

[49]

The
    trial judge correctly identified the elements of the cause of action and he
    found as a fact (a) that Mr. Spira had neither hacked into nor had access to
    Mr. Ludmers email account; (b) that Mr. Spira had never, himself, intercepted
    any of Mr. Ludmers emails; and (c) that Mr. Spira had never read any of the
    emails. The trial judge concluded that the simple fact that Mr. Spira had
    forwarded certain of these emails to Ms. Ludmers lawyer at her request was not
    sufficient to ground a claim for invasion of privacy. He found that it was Ms.
    Ludmer, not Mr. Spira, who had intentionally intruded upon Mr. Ludmers private
    affairs, and that whatever assistance Mr. Spira provided was not for purpose of
    assisting in her intrusion upon those private affairs.

[50]

There
    was ample support in the record for these findings of fact, and there is no
    basis for interfering with them on appeal. They are dispositive of the appeal
    on the invasion of privacy ground.

Costs of the Proceedings

As Between the Ludmers

[51]

The
    trial judge ruled that the Ludmers would each bear their own costs. A great
    deal of attention on the appeal was devoted to this disposition.

[52]

With
    respect to the equalization of family property and support claims, Mr. Ludmer
    argues that, even though the trial judge concluded that the dispute turned out
    to be truly a case of more or less equally divided success, he, the
    respondent at trial, was in reality the successful party.

[53]

For
    purposes of his costs analysis, the trial judge considered the major issues in
    the case to fall into two general categories: (i) claims involving the validity
    of the marriage contract and the family trust; and (ii) the income and support
    issues. He found Mr. Ludmer successful on the first of these and Ms. Ludmer, on
    balance, successful on the second.

[54]

Mr.
    Ludmer argues, however, that he was successful on the key issues. By that he
    means the issues relating to the marriage contract, the family trust, and the
    exclusion of his beneficial interest in the trust from equalization of property
    and support calculations.

[55]

There
    is no doubt that the findings on these issues were favourable to Mr. Ludmer. But
    the issues on which Ms. Ludmer was successful were favourable to Ms. Ludmer as
    well.

[56]

A
    trial judge has a broad discretion in awarding costs, both as to quantum and as
    to payor and recipient. Here, success was divided and, as the trial judge
    noted, both parties appear to have [waged] their litigation war without heed
    to the costs and in an all-out, ruinous fashion. I see no error in law or in
    principle in his decision that [e]ach party shall take responsibility for
    their own choices in the conduct of this litigation and bear their own costs.

[57]

It
    is true that the trial judge did not deal specifically with the costs of a
    number of motions reserved to him. I am satisfied, nonetheless, that his
    decision was designed to deal with the costs of the entire litigation war and
    took into account those earlier skirmishes.

[58]

I
    see no basis for interfering with the trial judges costs award as between the
    Ludmers.

As Between Mr. Ludmer and Mr. Spira

[59]

The
    trial judge awarded costs in the amount of $125,000 plus HST and disbursements
    in the amount of $5,223.01 in favour of Mr. Spira.

[60]

Mr.
    Ludmer argues that the trial judge erred in failing to find that Mr. Spiras
    inappropriate conduct disentitled him to costs, whereas he, Mr. Ludmer, had
    acted in good faith and made offers to settle. In the alternative, he argues
    that the quantum awarded was disproportionate and unreasonable in relation to
    the issues and the amount of the claim ($50,000).

[61]

The
    trial judge came to a different conclusion, however. He found that Mr. Spira
    was entirely successful in the third party action. While Mr. Ludmer had made offers
    to settle, Mr. Spira had done so as well, and Mr. Spiras offer  which was not
    accepted  was more favourable than the result obtained by Mr. Ludmer in the
    third party action. Rather than finding Mr. Spiras conduct inappropriate, as
    he had declined to do at trial as well, the trial judge found that the claim
    against Mr. Spira was a form of intimidation and punishment for siding with
    [Ms. Ludmer] in the dispute, that the claims had no hope of success, and
    that they were instituted for emotional and purely strategic purposes and to
    inflict emotional and financial harm (at para. 44).

[62]

He
    concluded that Mr. Spira was entitled to costs on a full indemnity basis. That
    said, the trial judge awarded considerably less than the amount of the draft bill
    submitted by Mr. Spiras counsel. Mr. Spiras counsel sought $300,000. The
    trial judge awarded $125,000 (plus HST and disbursements).

[63]

Mr.
    Ludmer contends, nonetheless, that the amount awarded was unreasonable. I do
    not agree.

[64]

On
    the trial judges findings, Mr. Spira was drawn into the Ludmers dispute for
    extraneous reasons. He had to defend, and this no doubt required him to attend
    at some of the proceedings involving the Ludmers. The trial judge reduced
    counsels bill considerably, finding that the time spent was excessive, and
    that the amount claimed was disproportionate in relation to the amount at stake
    and the amount of trial time consumed.

[65]

As
    noted, a trial judge has broad discretion in fixing costs. I see no error in
    his award here.

Preliminary Motions

[66]

In
    addition to the motion to quash, referred to above, Mr. Spiras counsel brought
    two other interlocutory motions relating to Mr. Ludmers attempt to appeal the
    costs order against him in the Spira action. These included a motion for
    directions, and a motion to dismiss the motion for leave to appeal costs for
    delay. In response, Mr. Ludmer brought a motion for directions and a motion to
    extend the time to file a notice of leave to appeal costs.

[67]

These
    motions, originally brought before a judge in Chambers, were also referred to
    the panel hearing the appeal. Again, we directed that we would deal with them,
    if necessary, as part of the appeal argument on the merits.

[68]

In
    view of my disposition of the costs appeal, it is not necessary to deal with
    the preliminary motions further. They, too, are dismissed.

Disposition

[69]

In
    the result, the appeal is allowed only to the extent that the judgment below is
    varied to reflect the trial judges failure to attribute the sum of $38,096.36
    to Ms. Ludmer in his calculation of s. 7 expenses owing. As a result, Ms.
    Ludmer owes Mr. Ludmer a total of $219,886.36 for her contribution to s. 7
    expenses incurred by him. This leads to a variation in the net amount owing to
    Ms. Ludmer from $194,434 as ordered by the trial judge to $156,337.64, as
    agreed by the parties.

[70]

The
    appeal in the Ludmer action is otherwise dismissed. While leave to appeal costs
    is granted, the appeal as to costs is dismissed.

[71]

The
    appeal in the Spira action is also dismissed. Again, leave to appeal costs is
    granted, but the appeal as to costs is dismissed.

[72]

Ms.
    Ludmer is entitled to her costs of the appeal in the Ludmer action, and Mr.
    Spira to the costs of the appeal in the Spira action.

[73]

The
    parties have each filed draft bills of costs. After reviewing those draft bills
    and considering the submissions of counsel and of Ms. Ludmer, I fix those costs
    as follows: $20,000 to Ms. Ludmer; and $12,500 to Mr. Spira. Both amounts are
    inclusive of applicable taxes and disbursements.

Released: (RAB) NOV 21, 2014                                           
    R.A. Blair J.A.

I agree R.G. Juriansz J.A.

I agree Gloria Epstein J.A.


