COURT OF APPEAL FOR ONTARIO
RE:
GUY PAUL MEIKLEJOHN (Applicant/Appellant) v. PATSY ELIZABETH MEIKLEJOHN (Respondent/Respondent in Appeal)
BEFORE:
LASKIN, ROSENBERG and CRONK JJ.A.
COUNSEL:
Paul D. Amey,
for the appellant
Hazel P. Jones,
for the respondent
SUPPLEMENTARY REASONS
1In our reasons of October 10, 2001, we invited counsel to make submissions concerning costs of the application and the appeal. We have now received those submissions.
2The appellant and the respondent made offers to settle the appeal. The respondent’s offer is almost identical to the result of the appeal. The judgment on the appeal is considerably less favourable than the appellant’s offer. While Rule 49 has no application to offers to settle appeals, the existence of an offer to settle may, in appropriate circumstances, be considered by the court in exercising its discretion on costs: Douglas Hamilton Design Inc. v. Mark (1993), 20 C.P.C. (3d) 224 (Ont. C.A.). Notwithstanding the appellant’s success on the appeal we think it appropriate in the circumstances that each side bear their own costs. Accordingly, there will be no order for costs of the appeal.
3There were offers to settle the application. The appellant’s offer to settle was significantly lower than the award made by this court. The respondent made two offers to settle. The first offer is similar to the award ultimately made by this court taking into account that on the one hand this court’s order is prospective and, on the other hand, that the offer required the appellant to pay $100 per month for health care coverage. The second offer is significantly lower than the award of this court, but is not a Rule 49 offer.
4The applications judge ordered that the appellant pay the respondent’s costs on a party-and-party basis to November 1, 1999 (the date of the respondent’s first offer) and thereafter on a solicitor-and-client basis. Because of the appellant’s cash-flow problems, the applications judge declined to order solicitor-client costs throughout notwithstanding misconduct by the appellant in unilaterally terminating support, interfering with the Family Responsibility Office process and being slow, if not evasive, regarding his productions.
5Having regard to the various offers and to the appellant’s conduct as referred to by the applications judge we are of the view that the appropriate order is as follows. There will be no costs to either party of the application to November 1, 1999. Thereafter, the respondent is entitled to her costs of the application on a party-and-party basis.
(signed) “John Laskin J.A.”
(signed) “M. Rosenberg J.A.”
(signed) “E. A. Cronk J.A.”