Cambridge Registry No. 060440-02

DATE: 2012·II·01

Citation: Salazar v. Salazar, 2012 ONCJ 44

ONTARIO COURT OF JUSTICE

BETWEEN:

PATRICIA SALAZAR,

Applicant

— AND —

ROBERTO SALAZAR

Respondent

Before Justice Paddy A. Hardman

Decision regarding costs released on 1 February 2012

David W. Grant ......................................................................................... counsel for the applicant

Edward J. Kiernan .................................................................................. counsel for the respondent

For previous proceedings, see Salazar v. Salazar, 2011 ONCJ 523, [2011] O.J. No. 4783, 2010 CarswellOnt 11673 (Ont. C.J.), per Justice Paddy A. Hardman.

[1] JUSTICE P.A. HARDMAN:— On 1 June 2011, this court released its decision regarding a motion to change whereby the applicant sought to increase the spousal support in a separation agreement and the respondent cross-claimed to fix a termination date for the existing support. The court ordered that any submissions for costs were to be served and filed within thirty days of the release of the decision. Responding submissions to any claim had to be served and filed within the following twenty days.

[2] On 27 June 2011, the applicant filed a claim for costs which had been served the same day on the respondent’s counsel of record. When staff contacted that counsel regarding a missing document in the submissions, he forwarded to the court on 5 October 2011 not only the missing document but also the respondent’s reply to the submissions that had been inadvertently not forwarded by counsel. A consent signed by both parties to allow the late filing was also filed.

[3] Following argument on the motion to change, the court did increase the spousal support from $750 to $825 monthly but that increase was less than the amount claimed by the applicant. The court dismissed the cross-claim by the respondent to terminate or fix a date for the termination of the spousal support.

[4] Counsel for the applicant submitted that they did attempt to settle the matter through correspondence dated February 24, 2011 offering to withdraw her motion seeking an increase in support in return for the respondent paying her costs fixed at $750.

[5] However, in his submissions filed with the court, counsel for the respondent pointed out that that offer made on February 24, 2011 was revoked April 30, 2011 with a new offer of $937.00/month and $2000 costs now being the offer outstanding. Therefore, the court ordered less than the last offer made by the applicant.

[6] Rule 18 of the Family Law Rules, O. Reg. 114/99, as amended, sets out the expectations for offers to settle. Rule 18 sets out when an offer can be made and how it can be accepted. An offer to which rule 18 applies is expected to be signed by both counsel and the party who are making it [subrule 18(4)]. While subrule 18(16) provides the court with discretion over costs, it seems to be limited:

(16) Costs — Discretion of court.— When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.

[7] Subrule 18(14) notes that a person is entitled to costs to the date of the offer and full recovery of costs from the date of the offer if certain conditions are met, which include that the party making the order obtain an order that is as favourable as, or more favourable than, the offer.

[8] However, at no time does rule 18 mention that the court can use rule 18 even if the offer is not signed by both the lawyer and the party. It seems to be that if the offer does not comply with the formal requirements of rule 18, then the claim for costs should be considered under rule 24.

[9] In looking at rule 24, there are a number of factors for the court to consider.

The applicant, while not as successful as she would have liked, still benefitted from an increase in spousal support.

The respondent was not successful in that the court did not order that a termination date of the spousal support be fixed.

The applicant did not behave unreasonably.

There was no evidence to suggest that either party acted in bad faith.

There was no complaint regarding costs that should be sought at an earlier step in the proceedings.

[10] Counsel for the respondent has asked the court to address a number of factors.

It is suggested that the court measure the applicant’s success against her original request for $1,500 in her motion. The motion to change was first returnable on 16 July 2010. The request for $1,500 in that document was prior to receiving the respondent’s disclosure during the proceedings. It would appear even by the time of the settlement conference on 10 November 2010, disclosure was not complete and an order had to be made. That disclosure had been served on the applicant by the 28 January 2011 court appearance but not filed. It was immediately after that that the applicant made her first offer.

Further, it would appear that on at least two different occasions the applicant offered to settle for significantly less than in her original claim. There is no evidence that the offer made on 20 April 2011 had been withdrawn.

While counsel for the respondent complains about the lateness of the offer and how so much of the costs had already been incurred, it is of note that there is no evidence that the respondent ever even attempted to make an offer to resolve the matter. While there should be consideration of the specific items in a claim for costs, the fact that any expenses may have occurred before the offer does not remove them from being considered.

Counsel for the respondent argues that the court did not find the respondent’s claim unreasonable because the court commented on what the future may hold. It is my view that that does not change the fact that:

the respondent did continue the matter despite offers without any of his own,

the respondent went to trial on the issue of setting a termination date and was unsuccessful,

and the court found that his claim should not be before the court.

To argue that he was trying to limit costs by fixing the termination date is not in my view a valid argument. Should the time be right in the future, the evidence available to the parties may cause them to settle the matter. Clearly, the court felt that the termination date should not be set at this time and that was the claim by the respondent.

The fact that one counsel has consented to an adjournment does not completely remove the costs of those attendances from the purview of costs. It is certainly preferable to reduce a client’s costs by having one counsel speak to an adjournment. However, it is not expected that the party whose counsel attends necessarily should have to bear all the costs of the adjournment in a consideration of costs.

In this matter, the applicant’s counsel appeared on behalf of both the respondent and his counsel a number of times: three times before the settlement conference on 10 November 2010 and four times afterward. Indeed, the respondent only had the costs of three appearances by his counsel: the settlement conference on 10 November 2010 and 1 April 2011 and the argument on 13 May 2011.

[11] In reviewing the bill of costs submitted by counsel for the applicant, I can find little to question in terms of the time expended and the work done. It is certainly true that both counsel attempted to narrow the issues and choose a process that could deal with the matter as expeditiously as possible.

[12] I agree with counsel for the respondent that the court would have preferred more thorough and independent information about the applicant’s financial circumstances. Also, there had to be more information provided by the applicant as well during the course of the proceeding.

[13] Further, the applicant was not completely successful given what she sought in her last “offer”. Also there was no offer meeting the criteria of rule 18, warranting the presumption of full recovery in subrule 18(14).

[14] However, the applicant did obtain a 10% increase in her spousal support and successfully defeated a claim by the respondent to fix a termination date for that support. Further, it appears that she has born the legal costs of seven consent adjournments. Subrule 24(1) does anticipate that a party who is successful should have his or her costs.

[15] Subsection 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, mandates that costs are in the discretion of the court. While that section does note that such discretion is subject to any applicable provisions of an act or rules, it is clear that a court maintains its discretion in the consideration of ordering costs. Therefore it is open to the court to consider the situation of the party against whom an order of costs is being sought. Generally, a court is reluctant to burden a party with very significant obligations with an order of costs. This is particularly true when child support is an outstanding concern.

[16] In this matter, there are no submissions that suggest that the respondent should be given any special consideration in terms of his circumstances.

[17] The respondent’s position in this matter that each party should bear their own costs is not appropriate given the expectations of rule 24 and the evidence. In reviewing the factors in rule 24 and considering the circumstances before the court, it is my view that some costs must be ordered.

ORDER

[18] The respondent shall pay to the applicant the sum of $2,500 for her costs within 60 days of today’s date.

Released: 1 February 2012

Signed: “Justice Paddy A. Hardman”