Court File and Parties

Ontario Court of Justice

Date: August 19, 2013

Court File No.: Cambridge 113278-02

Between:

Jessica Sheppard Applicant

— And —

Daniel Middleton Respondent

Before: Justice P. A. Hardman

Costs Decision released on August 19, 2013

Counsel:

• Lukasz Szymura, counsel for the applicant
• Daniel Middleton, on his own behalf

Decision

HARDMAN J.:

[1] It appears that the applicant mother filed submissions on February 15, 2013 seeking an order of costs within the 30 days set by this court at the conclusion of the decision regarding the Motion to Change (MTC) the Separation Agreement. These submissions were served on the respondent father by courier February 13, 2013. The respondent did not file any response to the submissions.

[2] Unfortunately the submissions were "mislaid" in the court office for over two months and eventually they were brought to the court's attention.

RULE 18

[3] The applicant mother has submitted that she made two offers to settle which should be considered in assessing her entitlement to costs. These two offers were made and served March 30, 2012 and October 23, 2012 respectively.

[4] While the court is satisfied that the applicant did in fact have an offer outstanding from March 30, 2012, neither of which was accepted by the respondent father, it is really the second offer that was in place up to the time of the hearing of the argument on the MTC on January 25, 2013. However, while the two offers are not identical, they do not differ in any significant way.

[5] There are certain conditions in Rule 18 to be met in order to be entitled to full recovery of one's costs from the date of the service of an offer.

[6] Subrule (4) requires that the offer be signed by both counsel of record and the party making the offer. This is a wise requirement in order to protect all involved. In this matter, neither of the offers was signed by the applicant mother, only by counsel.

[7] The second offer otherwise qualified under subrule (14):

• It was served well in advance of the argument;
• It did not expire prior to the hearing; and
• It was not accepted.

[8] Further, the applicant mother has satisfied the court that the order obtained was as favourable as or more favourable than the offer to settle as required by subrule (15) and (14) (5.).

[9] While subrule (16) notes that a court can take into account an offer that does not qualify under subrule (14), there is no direction regarding the failure of an offer to have both signature as required by subrule (4).

[10] However, the definition of an offer in subrule (1) is not so limited. Further, it makes little sense to disregard an offer that is not challenged as deficient. In most cases, for their own protection, I would presume that counsel would be in a position to confirm that it was indeed the client's offer.

[11] Also, there is no evidence that the offer was not accepted because the respondent did not feel confident that the offer was genuinely made by the applicant.

[12] Further, there are other rules that support the encouragement of settlement.

[13] Subrule 2(3) sets out what is included in the "just" dealing with a case and refers to sub (b) which is "saving time and expense". Subrule (5), the duty to manage cases, sets out a number of ways to promote the primary objective of dealing with a case justly:

Rule 2(5) The court shall promote the primary objective by active management of cases which includes:

(a) At an early stage, identifying the issues, and separating and disposing of those that do not need full investigation of trial;

(b) Encouraging and facilitating use of alternatives to the court process;

(c) Helping the parties to settle all or part of the case;

(d) (Not applicable)

(e) Considering whether the likely benefits of taking a step justify the expense

(f) Dealing with as many aspects of the case on the same occasion as possible

(g) (not applicable)

[14] It is clear that dealing with a case justly means to use as few resources as is necessary and to settle as soon as is possible.

[15] Rule 17 that sets out the expectation of case management also supports the notion that the court should encourage settlement wherever possible. Subrule (3) mandates that the court conduct at least one conference for a MTC that is not proceeding on consent. Further, the court is directed for case conferences, settlement conferences and trial management conferences to "explore the chances of settling the case" (subrules 17(4), (5) and (6)).

[16] Surely, given the emphasis of encouraging parties to try to settle their matters, the court should take into account any offers that have been made during the course of the proceedings as long as the opposing party's opportunity to settle is not adversely affected by any procedural irregularity.

RULE 24

[17] There is no evidence of any bad faith or unreasonable behaviour by the applicant mother that might affect the costs awarded. Indeed the applicant properly made offers and it was the respondent who "unreasonably" did not accept them (subrule (5)).

[18] In examining the issues under subrule (11), I am satisfied that the rates of the lawyer, time spent, and expenses paid in the account appear reasonable. Certain costs were dealt with separately and are properly not claimed. The mother was assessed costs for needing an adjournment to file her documents in the beginning and the father had costs assessed against him for a motion that he brought.

[19] While this matter was not complicated, it took time to obtain all the disclosure and, in part as a result of the father's late allegations, further documents had to be filed.

[20] I agree with Brophy, J in Koestler v. Bricker (2012), 2012 ONCJ 384 that subrule 24(10) does not disentitle a party to claim costs for court appearances and conferences. Without knowing the success of the party, these costs cannot be claimed at each step. Properly, as in this matter, costs of argued motions can and should be assessed at the time of the decision.

[21] Further, again as it was in this case before the court, costs used as remedial compensation for adjournments should also be sought and awarded as the issue arises. There are no costs claimed in this matter that should be excluded as a result of the operation of subrule 24(10).

[22] It would appear given all this information that the applicant mother should be entitled to at least some of her costs.

[23] It should be noted that the respondent father was represented by counsel when the offers to settle were made and for the settlement conference. He became self-represented November 2, 2012 at which time the matter was adjourned to January 25, 2013 for argument.

COSTS CLAIMED

[24] I have examined the submissions and account carefully. It appears that the applicant incurred total legal costs of $10,668.18 including taxes and disbursements of $118.50 from initial meeting to and including cost submissions. This amount properly did not include the costs of the motion successful argued by the applicant earlier in the proceeding.

[25] After the first offer was served on March 30, 2012, the applicant incurred costs of approximately $1,430 until the second offer was made.

[26] Then after the second offer, costs including the argument and costs submissions came to about $3,952.75.

[27] Therefore the total costs after the first offer including that amount for disbursements was approximately $5,500. The balance of the applicant's costs incurred prior to making the offer should also be considered by the court.

[28] Despite rules 18 and 24, it is clear from the Courts of Justice Act (R.S.O. 1990, c. 43) that costs incidental to a proceeding are in the discretion of the court. It is pursuant to this discretion that a court may examine the circumstances of the person against whom the costs are claimed.

[29] In this matter, while the respondent father is employed, he earns only an estimated amount of $38,000 and he has a number of financial obligations related to the children:

• While the mother has primary care of the child, the father enjoys liberal access with them including three weekends out of four and two evenings every week and extra time on school break.
• As a result of the court order January 25, 2013, the father went from paying $200/month in child support to $336/month.
• Further the court ordered retroactive support of $3,972 and a monthly payment of $50/month toward that support.
• The court also ordered retroactive contribution to special expenses in the amount of $3,017 being a further $50/month.
• The father also has the ongoing obligation to pay his share of any special expenses for the children, something he did not do regularly before.

[30] Further, the father may also have obligations to his former counsel.

[31] While the court has a great deal of sympathy for the father given his increased financial obligations, that challenge cannot in my view completely insulate him from his failure to respond in a reasonable manner to settle the matter.

[32] The court recognizes that it is hard for parents to come to terms with having to change a shared parenting scheme when children reach school-age and give up time with the child to accommodate the child's best interests. But it has to be done and it is the responsibility of the parties to step up and make the changes responsibly, incurring as few litigation costs as possible.

[33] While the respondent father must pay some costs, the court must ensure that those costs and their repayment do not interfere with the respondent's ability to address the financial needs of the children as set out in the court order.

[34] Therefore, in consideration of all of the issues, the court is prepared to order that the respondent father pay to the mother the sum of $2,500.

ORDER FOR COSTS

1. The respondent father is to pay to the mother or as she directs the amount of $2,500 towards her costs in these proceedings.

2. The father shall pay these costs at the rate of $50/month commencing September 1, 2013 until the costs are paid in full.

3. Should the father fail to pay any monthly amounts 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. These costs were generated in order 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"