ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D22559/10
DATE: 2012-11-13
B E T W E E N:
Raymond Douglas Waters Applicant
Paul M. Bauerle, for the Applicant
- and -
Rebecca Margaret Waters Respondent
Deborah R. Squires, for the Respondent
The Honourable Justice J. R. Henderson
COSTS DECISION
[ 1 ] The respondent (hereinafter called “the wife”) requests her costs of this action on a full recovery basis in the total amount of $79,897.50, payable to her by the applicant (hereinafter called “the husband”).
[ 2 ] Although the parties raised some minor financial issues, the vast majority of the evidence at trial related to the parenting issues associated with the two children of the marriage. The trial started on June 14, 2011, continued over parts of 10 trial days, and finished more than one year later, on June 28, 2012. Thereafter, written submissions were delivered, and my written decision was released on September 25, 2012.
[ 3 ] At the start of the trial, the wife took the position that she should have sole custody of the children, and that the husband should have access every Wednesday after school to 7:15 p.m., and every weekend from Friday after school until Saturday at 7:15 p.m., or until Sunday at 7:15 p.m., with the wife to have a weekend with the children at her option every six weeks. On the witness stand, the wife’s position changed somewhat as she requested that she be permitted to have the children with her for one weekend per month. She consistently maintained that she should have sole custody of the children.
[ 4 ] The husband took the position at trial that he should have sole custody of the children, or that there should be a joint custody or shared parenting order. In either case, the husband submitted that the parenting time should be divided equally such that the children would spend alternate weeks with each of the husband and the wife. Throughout the trial he was consistent in his position that the children should spend alternate weeks with each parent.
[ 5 ] In my written decision, I awarded joint custody to the husband and the wife, with the principal residence of the children to be with the wife. I ordered that the husband would have access every Wednesday after school until 7:30 p.m. Weekend access would rotate through a four-week cycle whereby the husband would have the children on the first, second, and third weekend of the cycle, and the wife would have the children on the fourth weekend of the cycle.
[ 6 ] Rule 24(1) of the Family Law Rules states that there is a presumption that a successful party is entitled to his or her costs. In this case, if I were to consider the positions of the parties taken at trial in relation to the final decision by this court, I would conclude that there was a mixed result, and no truly successful party.
[ 7 ] However, I accept that the wife made an offer to settle that I must take into account. The wife initially made a formal written offer to settle, dated June 3, 2011, that was signed by the wife’s lawyer and by the wife. In that offer to settle the wife offered to accept an order that would give her sole custody of the children. She also offered access to the husband every Wednesday after school to 7:15 p.m., and every Friday after school to Saturday at 7:15 p.m., with alternate weekends to be extended to Sunday at 7:15 p.m.
[ 8 ] Then, by way of a letter from the wife’s lawyer to the husband’s lawyer, dated June 6, 2011, the wife amended her June 3rd offer by offering to accept a joint custody order with primary residence to the wife. The balance of the wife’s June 3rd offer remained the same. The wife’s offer to settle of June 3, 2011, as amended by the letter of June 6, 2011, remained open for acceptance until the start of the trial.
[ 9 ] The husband’s lawyer submits that the June 6th amendment to the wife’s June 3 rd offer to settle does not technically comply with Rule 18(4) because it was not signed by the wife. Therefore, the husband’s lawyer submits that this court should not consider the amendment to the wife’s offer for the purposes of this costs decision. With respect, I disagree with the position taken by the husband’s lawyer.
[ 10 ] Rule 2(2) of the Family Law Rules states: “The primary objective of these rules is to enable the court to deal with cases justly”. Rule 2(3) explains that “dealing with a case justly” includes “ensuring that the procedure is fair” and “saving expense and time”. In light of this objective, if a party has delivered an offer to settle that is compliant with Family Law Rule 18(4), I find that it is not necessary in every case to require that an amendment to that offer to settle follow the strict requirements of Rule 18(4). To insist on such formulaic compliance for every amendment during the course of resolution discussions would be unfair, cumbersome, and inefficient in most cases. Specifically, I find that if an amendment to an otherwise compliant offer to settle is clear and unambiguous, then the offer to settle, as amended, will continue to comply with Rule 18(4).
[ 11 ] In the present case, the June 6th amendment was clear and unambiguous. Moreover, the amendment was signed by the wife’s lawyer. Therefore, if the husband’s lawyer had accepted the wife’s offer, as amended by the letter of June 6, 2011, that acceptance would have created a binding agreement. Under these circumstances, I find that the wife’s offer to settle of June 3rd, as amended by the June 6 th letter, complies with Rule 18(4).
[ 12 ] Moreover, even if I were to find that the wife’s offer and amendment did not strictly comply with Rule 18(4), in my view the offer and the amendment should still be taken into consideration for costs purposes in accordance with Rule 18(16).
[ 13 ] In comparing the result at trial to the wife’s offer to settle, I find that the wife’s offer, as amended, was slightly different than the decision at trial. Therefore, the presumption set out in Rule 18(14) does not strictly apply. However, the wife’s offer, as amended, was very close to the decision at trial. Therefore, for the purpose of determining costs, I find that the wife was the successful party at trial and is entitled to at least some of her costs.
[ 14 ] As to the scale and quantum of costs, I have taken into account the fact that this trial was not unduly complex, nor unduly simple. The trial did not engage any difficult legal issues, but, as in most custody trials, there were many emotional and factual disputes that engaged much of the court time.
[ 15 ] In my written decision, I found that both parties engaged in childish, irrational behaviour in their relationship with one another. This behaviour provided a broad base for several factual disputes, and extensive cross-examination in the court room. As a result, the length of the trial was needlessly extended. Considering that the wife was just as involved as the husband in this inappropriate conduct, the wife should not have all of her costs of this action, and her costs should not be on a full recovery basis.
[ 16 ] Moreover, the wife’s position at trial on the custody issue also extended the length of the trial. At trial the wife was adamant that she and her husband could not cooperate with one another about the children, and that joint custody would not work. Much of the trial time was taken up with the sole/joint custody issue. The wife took this strong position at trial despite the fact that she had, unbeknownst to the court, offered to resolve the matter by way of a joint custody order.
[ 17 ] At trial the husband appeared more willing to accept some form of a shared parenting arrangement. By taking such a strong and divisive stance on the sole/joint custody issue, when she really was prepared to accept a joint custody order, I find that the wife further extended the trial.
[ 18 ] For these reasons, I find that the wife is entitled, as the successful party, to her costs of the trial on a partial indemnity basis, reduced by 50% for the reasons set out above.
[ 19 ] I assess the wife’s total partial indemnity costs for the trial and for all of the preparation for trial at $40,000.00, and I will reduce this amount by 50% to $20,000.00 plus HST.
[ 20 ] The costs of the motion argued on October 10, 2010 were reserved to the trial judge. I find that the wife was the successful party on this motion, and accordingly I assess her costs for this motion at $3,500.00 plus HST.
[ 21 ] Regarding disbursements, I will allow the wife’s requested disbursements of $1,167.45, including HST.
[ 22 ] In summary, the wife is awarded her costs of $23,500.00 plus HST of $3,055.00, plus disbursements of $1,167.45, for a total costs award of $27,722.45. This amount is payable by the husband to the wife within 30 days.
Henderson J.
Released: 2012-11-13
COURT FILE NO.: D22559/10
DATE: 2012-11-13
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Raymond Douglas Waters Applicant - and – Rebecca Margaret Waters Respondent COSTS DECISION Henderson J.
Released: 2012-11-13