Court File and Parties

Ontario Court of Justice

Date: 2013-08-19

Court File No.: Owen Sound 97/07

Between:

Linda Godmer-Godin Applicant

— And —

Jeffrey Darin Daniel Alford Respondent

Before: Justice P. A. Hardman

Costs Decision released on: August 19, 2013

Counsel:

• Mario Miceli, counsel for the applicant
• Susan Powell, counsel for the respondent

Decision

HARDMAN J.:

[1] The matter heard by the court initially was a motion to change issued October 25, 2010 brought by the respondent father to change an order dated October 15, 2007. The father sought a variation in child support, a recalculation of arrears and re-instatement of his driver's licence. In his materials, the respondent said that he was unable to maintain the child support ordered and felt that the government was being unfair by taking his licence away two separate occasions. The Grey County Social Services had an interest and filed affidavit material at trial.

[2] The applicant mother served and filed her costs submissions. The respondent father did not comply with the time ordered for his response to be filed; therefore he had to bring a motion to extend the time which was done on consent of the applicant mother. The applicant mother filed reply within the time allowed.

[3] No submissions were received from Grey County Social Services seeking costs.

OFFERS TO SETTLE: Rule 18

[4] While the applicant mother did serve the respondent father on July 22, 2011 with an offer to settle, it was one made without the benefit of proper disclosure by the father. The offer was signed by both the applicant and her counsel as required by subrule 18(4). The offer remained outstanding at the time the trial was commenced June 29, 2012.

[5] The mother's position was that while she had not had sufficient disclosure, her offer was an "olive branch" to try to settle the litigation.

[6] In order for the party making the offer to be entitled to full recovery of costs, subrule (14) requires that a number of conditions be met:

• The offer must be served at least a week before trial;
• The offer must not expire or be withdrawn before the hearing stops;
• The offer must not be accepted; and
• The party who makes the offer obtains an order that is as favourable as or more favourable than the offer.

[7] It is the obligation of the party claiming the benefit of subrule (14) to prove that the order obtained was as favourable as or more favourable than the offer to settle (subrule 15).

[8] While the mother's offer met the first three conditions, it would be difficult to find that her offer was as favourable as the order ultimately made by this court. However, the lack of disclosure precluded the mother from making an offer that was reasonable in circumstances that she did not know until trial.

[9] However, even when an offer does not meet the conditions in subrule (14), the court may take into account any written offer to settle, the date it was made and its terms.

[10] The respondent father has asked the court to recognize the offer that he made in the offer to settle attached to his settlement conference brief dated July 21, 2011.

[11] As noted in the reply submissions, there is case law (Entwistle v. MacArthur) that does not support the consideration of any offer attached to a settlement conference brief as an offer under Rule 18 for a number of reasons. However, in my view there are circumstances where a court should give unrepresented people in particular the credit that filing an offer provides in seeking costs. As I have noted in other matters, filling in an offer attached to the brief is often the only way a litigant has to attempt to resolve the matter. I agree with the comment of Pazaratz, J in paragraph 27 that on a "fundamental level" the interpretation that excludes the consideration of offers attached to briefs is "counter-intuitive" given the focus of the rules on encouraging settlement.

[12] I do agree, however, that even where the parties agree that they considered the offer as a proper offer, there can be problems.

[13] The applicant mother takes the position that the court should not consider the settlement conference brief attachment as an offer made under Rule 18.

[14] In this matter, it would be completely inappropriate for the court to consider that the respondent father's "offer" qualifies as a proper offer.

[15] My principal problem with giving it any weight is the fact that the mother without having been provided appropriate disclosure should not be prejudiced by failing to accept an offer served by the other party.

[16] Even had the offer been a proper one, I would still not have held the mother's failure to respond reasonably to the offer against her in the consideration of costs. Without disclosure, a party is not in a position to be able to determine whether an offer is reasonable or not.

COSTS: RULE 24

[17] Generally a successful party is entitled to the costs of the case before the court (subrule (1)). In this matter, neither party was clearly successful.

[18] Even if it appears that the respondent father was more successful than the mother, I am not prepared to find him entitled to any costs.

[19] Indeed while the mother has behaved reasonably in this litigation, the father has not.

[20] An examination of the history of the matter discloses a number of issues:

• The father started the matter in a county where the mother and children did not reside and the mother had to bring a motion to move it to Grey County
• His MTC sought relief not available from the court
• Due to his failure to provide disclosure, the mother had to bring a motion and seek the court's assistance on two separate occasions, October 14, 2011 and November 29, 2011.

[21] However, none of the court's interventions were successful in ensuring that there was full information before the court. The court on November 29, 2011 ordered costs of $800 against the father for his failure to disclose, thus forcing the mother to bring an otherwise unnecessary motion.

[22] When the matter was not reached on the fall trial week, it was set for to the domestic trial week of June 25, 2012.

[23] On June 25, 2012, this court canvassed the matter with counsel for the mother and the respondent father and instructed him to bring all his business records from 2007 to date with him to court for the trial.

[24] However, when the court commenced the trial on June 29, 2012, the court again had to order the father to produce documents that could have been made available before. On the same date, the court ordered the mother to produce confirmation of certain information that she had provided.

[25] The father had retained counsel for the first day of trial. The trial was adjourned to September 17, 2012 to complete the evidence and then to September 18, 2012 for submissions. There were many items ordered disclosed that were never provided.

[26] Subrule (5) assists the court with criteria to examine in the determination of whether a party has behaved reasonably. Subsection (a) notes the following:

The party's behaviour in relation to the issues from the time they arose including whether the party made an offer to settle.

[27] In litigation generally, disclosure is the cornerstone of fairness. In this matter for example, the mother was prevented from knowing the case that she was to meet despite the motions and intervention of the court. The day before the trial commenced, there was still information missing and frankly no amount of adjournment would seem to be able to rectify the problem.

[28] The importance of disclosure, particularly financial disclosure, is emphasized throughout the rules. Without it, fair settlement cannot be reached.

[29] Rule 13 which requires the production of sworn financial statements also mandates the production of additional financial information if a party feels that the statement does not contain enough information for "a full understanding of the other party's financial circumstances" (subrule (11)).

[30] The obligation to produce sufficient financial information is so important that subrule (17) allows a court a number of remedies including the making of a contempt order against the party. While the court did not act on the father's failure to live up to his disclosure obligation as contemplated in Rule 13(17), it is open to the court to address the issue through costs.

[31] In the submissions made on behalf of the father, counsel has submitted that "the respondent made his best efforts to respond in a timely fashion to any and all requests of the Applicant regarding financial disclosure". That clearly is not the case. Indeed he was order to pay costs on a motion brought to obtain disclosure. The history as set out speaks volumes of the respondent father's disregard for his obligations to the other party, the rules and the court. Further he cannot plead lack of education or limited financial resources as an excuse for his failure to comply with the law. He was the one who sought the assistance of the court in the first place; it was his responsibility to comply with the rules and expectation of the court and process.

[32] Further, I am not convinced having dealt with the respondent father that he was as helpless as his submissions would suggest. It was clearly my view that he was deliberately being uncooperative to gain advantage. The court made a finding that he was able to work and did work although primarily "under the table". The court concluded that he was "not declaring significant income". The court also noted in its decision that the father had not been "straight with the court" about his driving or working, and found that he failed to complete his financial disclosure.

[33] His history in the court system confirms his attitude. After the separation in 2005, the father paid $800/month voluntarily as child support. When he stopped paying, the mother took him to court in October 2007. Although served, the father walked from the proceeding and was noted in default. The order had to be made without his disclosure. While he initially made some payments, he stopped all pre-authorized cheques in January 2009.

[34] However, he did not bring the MTC until the fall of 2010 when he lost his driver's licence. He is a person who has been charged with breaching court orders. When his driver's licence was suspended, he drove anyway.

[35] The court also found that the father never took responsibility for anything: he blamed the mother, the family responsibility office and even the recession for his predicament. He had not paid any child support since January 2009 at the time of the court's decision September 19, 2012 despite the fact that the family required assistance from welfare.

[36] Given that background and the findings of the court at trial, it must be the conclusion on the issue of costs that his failure to disclose is something he could have remedied and deliberately didn't.

[37] Therefore having made a finding that the respondent father has behaved unreasonably in the litigation, it is open to the court to deprive him of any costs that he might otherwise have received and order him to pay all or part of the other party's costs.

[38] I should comment on the costs that the father has submitted. I cannot understand how there could be almost $14,000 spent on legal costs for the short period of counsel's retainer. The mother's claim for counsel's assistance from April 20, 2011 to trial is only $14,400 in counsel fees which together disbursements and HST came to a total of $16,716.52 as full recovery. The mother also claims $1120 as her costs for travelling to court or her lawyer's office and eight missed days of work.

[39] Under the Courts of Justice Act (R.S.O. c.C.43, as am.), the costs ordered incidental to a proceeding are in the discretion of the court. It is appropriate for the court to consider the circumstances of the party against whom an order of costs is to be made.

[40] The father told the court that as soon as he got his driver's licence back, he would be making more than $17/hour. With the fixing of arrears in September last year, he would have been in a position to be so employed.

[41] The court is mindful that the father continues to have obligations regarding child support including retroactive amounts assessed at trial. However, it is important that the court deal appropriately with the father's unreasonable behaviour with an order of costs.

[42] Taking into account his obligations, the court is prepared to make an order that he pay only a portion of the mother's costs. It is my view that he can afford to pay the order as long as he is given the time to pay.

ORDER OF COSTS

1. The father is to pay the sum of $7000 to the mother or as she directs as costs in this matter.

2. The father shall pay these costs at the rate of $100/month commencing September 1, 2013 until the costs are paid in full.

3. Should the father fail to pay any monthly amount on time as set out in this order, the balance of the costs owing shall become due and payable in full at the direction of the mother.

4. The father shall pay the sum of $1120 to the mother to compensate her for her out of pocket expenses. This amount shall be paid in full to the mother within 120 days.

5. The costs addressed in this order were generated to obtain child support and therefore should be subject to enforcement by the Family Responsibility Office unless the order is withdrawn by the parties.

Released: August 19, 2013

Signed: "Justice P. A. Hardman"