Court File and Parties
Court File No.: FC-93-566
Date: 20120305
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MELANIE ANNE LINKLETTER, Applicant
AND:
SHAWN GREGORY FRASER, Respondent
BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN
COUNSEL:
Applicant, Self Represented
K. Kieller, for the Respondent
HEARD: By written submissions
COSTS ENDORSEMENT
[ 1 ] The applicant Melanie Anne Linkletter was successful in her Motion to Change heard January 9, 2012. The parties were encouraged to resolve the issue of costs or alternatively make written submissions. Written submissions have now been received.
[ 2 ] The applicant was self represented at the motion. It dealt with post-secondary expenses for the child of the relationship who is now 18 and attending a community college program. She was self represented and does not seek costs. The respondent seeks his costs on the basis that his Offer to Settle was very close to what was actually ordered. He seeks full indemnity costs of $12,746.40.
[ 3 ] The applicant opposes the respondent’s request for costs, first of all taking issue with the respondent’s interpretation of the relief obtained in the Judgment. The applicant, in addition, points out concerns contained in the Offer to Settle which were stipulations or requirements not contained in the Judgment.
The Offer to Settle
[ 4 ] The Offer to Settle was dated the 13 th of December 2011. It contains the following proposed clauses that were not reflected in the Judgment:
- The ongoing s. 7 child support was tied to the child’s academic performance in college. Paragraph 13 of the Draft Minutes of Settlement proposed:
Kyle will also maintain a 65% average during the program. In the event that Kyle’s average is reduced lower than 65% without any reasonable excuse such as a family emergency or health issue the Respondent/Father may at his discretion move before this Honourable Court to terminate the support at an earlier date.
- The Offer to Settle only provided support for two years. As paragraph 7 of the Draft Minutes of Settlement proposed:
This amount will be paid in the amount of $450.00 per month commencing September 1, 2001 and each month to an including March 31, 2013. At that time, all support for Kyle will terminate.
- The Offer also contained the following additional clauses:
1.3 Acceptance of all sections of the Offer is deemed to be:
a) a full and final resolution of all issues between the parties however arising;
b) a bar to any further proceedings between the parties except for proceedings to enforce the terms of this Offer or to enforce rights which have not yet arisen.
[ 5 ] I am satisfied that although the Offer to Settle was close in monetary terms it does not constitute an Offer to Settle pursuant to Rule 18 because of the additional stipulations in the proposed Minutes of Settlement. In addition the costs sought do not reflect Rule 18(14) which provides:
A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date of the offer was served and full recovery of costs from that date…
[ 6 ] I am satisfied that the court has jurisdiction to order no costs in appropriate circumstances under Rule 24(11) which provides that:
A person setting the amount of costs shall consider,
(f) any other relevant matter.
[ 7 ] In C.A.M. v. D.M. , 2003 18880 (ON CA) , [2003] O.J. No. 3707 the Court of Appeal considered Rule 24(11) in a family law matter. As Rosenberg J.A. stated at para. 42:
I am also of the view that the financial situation of the parties can be taken into account in setting the amount of costs award either under Rule 24 or Rule 18…In fixing costs the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interest of the child.
[ 8 ] I am aware of the financial position of the mother who is the custodial parent. She has recently begun her own post-secondary education. I am also aware of the father’s income which is in excess of $70,000 per year.
[ 9 ] The applicant is the custodial parent. As such any costs order against her would have an impact on her ability to provide support for her son in accordance with her obligations toward s. 7 expenses. In my view this is certainly a relevant consideration that cannot be ignored when the best interests of the child are considered.
CONCLUSION
[ 10 ] Rule 24 of the Family Law Rules contains a presumption that the successful party will obtain her costs. The applicant as the successful party does not seek any costs. Given the additional clauses or releases sought in the Offer to Settle, together with the overarching considerations within Rule 24(11), and the guidance of the Court of Appeal in C.A.M. v. D.M. I am satisfied that each party should bear their own costs.
[ 11 ] Under the circumstances there should be no order as to costs.
MULLIGAN J.
Date: March 5, 2012