SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: F1116/10
DATE: 20121206

RE: ANTHONY SHAWN PAGE (Applicant)

• And –

HELEN DESABRAIS (Respondent)

BEFORE: JUSTICE A. D. GRACE

COUNSEL: Kenneth V. Duggan, for the Applicant
Matthew J. Villeneuve, for the Respondent

HEARD: Written submissions filed
Oral submissions made December 3, 2012

E N D O R S E M E N T O N C O S T S

[ 1 ] The parties resolved the vast majority of their issues in Minutes of Settlement which were fully signed on August 24, 2012.

[ 2 ] Three were not resolved. Two of them related to access on specific occasions. They were argued and dealt with in an endorsement released that same day.

[ 3 ] The third, costs, is the subject of this endorsement.

[ 4 ] The parties separated after only four months of marriage.

[ 5 ] Their daughter, Gabriella, was born a few months later.

[ 6 ] Mr. Page commenced an application when Gabriella was two months old. He sought joint custody of and progressively increasing access to her.

[ 7 ] In her answer, Ms. Desabrais sought a divorce, sole custody, child support, a restraining/non-harassment order and other relief. She did not object to Mr. Page having gradual access to Gabriella. However, the terms of access were not finalized until August 24, 2012 although temporary orders were made by Henderson J. along the way.

[ 8 ] Those orders followed Mr. Page’s motion and Ms. Desabrais’ responding motion originally returnable January 12, 2011.

[ 9 ] As that date approached, the parties served their first offer to settle. Ms. Desabrais’ January 7, 2011 offer to settle was the first of seven served on her behalf. Three more followed Mr. Page’s January 10, 2011 offer.

[ 10 ] Some related to motions the parties had brought (Ms. Desabrais’ original offer and another dated January 11, 2011 and Mr. Page’s January 10 and August 23, 2011 offers). Others related to the entire proceeding.

[ 11 ] The parties participated in a case conference on November 16, 2010, a settlement conference on March 3, 2011 and a trial management conference on December 19, 2011. Costs of those steps were not awarded.

[ 12 ] The motions came on for argument before Henderson J. on June 3, 2011. While the endorsement addressed primary residence, access, child support and s. 7 expenses on a temporary basis, reasons underlying the order do not appear. Counsel for the parties informed me that Henderson J. had read the material. They also advised that brief submissions were made and that the terms of the temporary order evolved during exchanges between judge and counsel.

[ 13 ] Henderson J. adjourned the “matter” to a September, 2011 date before him and reserved the issue of costs “of the motion to date” until then “or such date that counsel may agree upon.”

[ 14 ] The matter came on before Henderson J. again on September 12, 2011. The access arrangement then in place was amended on consent. Henderson J. adjourned “[a]ll other matters” to the trial management conference (“TMC”).

[ 15 ] As noted earlier, the TMC was held on December 19, 2011. Henderson J. presided. According to the endorsement, an order was made on consent that day. However, I have not seen it. The endorsement also indicated that an early trial date was to be arranged if matters were not otherwise resolved. The issue of costs of the motions was not mentioned.

[ 16 ] I set forth this chronology because Ms. Desabrais claims entitlement to costs of the motions Henderson J. heard.

[ 17 ] I raised an immediate concern with counsel. Rule 24(10) provides as follows:

Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.

[ 18 ] Two things are apparent from the rule. First, it is mandatory. However tempting another disposition may be, the rule directs judges to deal with the issue of costs at the conclusion of each step . Second, entitlement and quantum are to be determined by the judge or other person “who dealt with that step”. Henderson J. dealt with the motions throughout. At the conclusion of the TMC, he directed that the matter proceed to trial if not otherwise resolved. The summary hearing before me involved the claims for relief set forth in Mr. Page’s application and Ms. Desabrais’ answer.

[ 19 ] If a judge does not order costs at the conclusion of a earlier step in a family proceeding, it is not, in my opinion, within the jurisdiction of the trial judge to do so: Islam v. Rahman, 2007 ONCA 622 at para. 2 . Rule 24.10 aside, I find it impossible to determine entitlement to costs of motions I did not hear and in the absence of any reasons for the temporary orders that were granted.

[ 20 ] I express no opinion as to whether Henderson J. continues to have jurisdiction with respect to the costs of the motions in light of the three endorsements he made.

[ 21 ] The parties seek costs of other steps taken in these proceedings. They include costs relating to the pleadings, the preparation of financial statements, Form 35.1 affidavits and offers to settle, negotiations, correspondence and the summary hearing.

[ 22 ] Each maintains the ultimate disposition was more in line with what they initially sought and proposed along the way.

[ 23 ] The issue is a daunting one. Counsel acknowledged the parties ultimately resolved all but two of the substantive issues. They agreed the settlement related to virtually all (ninety five percent according to counsel for Ms. Desabrais and ninety eight percent according to counsel for Mr. Page) of the matters in dispute.

[ 24 ] How, even in a one issue case, is a judge to know whether a settlement is a “success” for one party or the other. I offer an example. A sues B for $100,000. B denies liability entirely. The parties settle for $50,000.

[ 25 ] Both parties can claim “success”. I start with A. B is paying a significant amount of money having denied any responsibility. However, unknown considerations may be at play. A’s claim may have been without merit. Nonetheless, the settlement may have been a wise one if, for example, the payment resolved that issue and others which were not before the court.

[ 26 ] B might claim success. B paid only half of the amount claimed. However, B could not make such a claim if A settled because B’s financial position was modest and further recovery was unlikely.

[ 27 ] My point is simply this: cases are resolved in whole or in part for many reasons. Legal, economic, social, political, emotional, physical or other factors may be wholly or partly at play.

[ 28 ] For good reason, judges are reluctant, if not loath, to make an order as to costs when the parties settle the merits of their dispute: Blank v. Micallef, 2009 60668 (Ont. S.C.J.) at para. 11 .

[ 29 ] In Davis v. Davis, 2004 19156 (Ont. S.C.J.) Perkins J. observed that a party is only successful within the meaning of rule 24 of the Family Law Rules, if “declared” such by “a judge, after argument.” (para. 3)

[ 30 ] Perkins J. was not stating an inviolate rule. There may be instances where settlement is a clear capitulation by one party in favour of another. However, that is not the case here. While the task of reviewing, digesting and comparing eleven multi-page offers was a difficult, time consuming and admittedly unsatisfying one, some impressions did emerge.

[ 31 ] It seemed to me that the parties’ positions on “issues” such as divorce, child support, even custody, converged quickly.

[ 32 ] While the sharing of s. 7 expenses may have been outstanding longer, the central, ongoing and divisive issue was access and the insistence by both parties that the other contribute to their costs in increasing amounts.

[ 33 ] In Davis , supra , Perkins J. examined the issue of costs on the basis of “divided success” where the parties had reached a settlement.

[ 34 ] He felt able to prefer the position of one party to the other.

[ 35 ] In Bursey v. Base (2007), A.C.W.S. (3d) 91 (S.C.J.), Mesbur J. was asked to determine success following a trial. Her analysis was undertaken on an issue by issue basis. On some issues a winner was declared. Others were called a draw. She reviewed offers to settle that dealt with multiple issues. The offers were not severable. They were to be accepted in their totality or not at all.

[ 36 ] Mesbur J. rejected the submission that:

Mr. Base should have accepted Ms. Bursey’s February 12, 2007, offer, because he could have paid child support on the basis of income of only $50,000, rather than on the $90,000 I ordered.

[ 37 ] At para. 21, she noted:

That offer also had him responsible for all the cottage costs from the date of separation onward, while entitled to only half the cottage proceeds.

[ 38 ] A similar point can be made here. The offers to settle each party provided were available for acceptance as written. No paragraph was severable. It would be wrong of me to accept the invitation to confine my analysis to excerpts which the other party was not permitted to extract and accept.

[ 39 ] The access provisions each party proposed went on for pages covering the usual schedule, access during several different holidays and special occasions. Days, time and locations were delineated. Incidental issues were addressed.

[ 40 ] Eventually most of the access issues were resolved. There appears to me to have been an element of compromise by both parties. Fifteen paragraphs in the MOS deal with that issue alone.

[ 41 ] As noted, my endorsement of August 24, 2012 dealt with other aspects of access the parties were unable to resolve. Counsel for Mr. Page fairly conceded that elements of each party’s position found favour that day although he submitted Mr. Page had done somewhat better. Suffice to say, the results of August 24, 2012 do not tip the balance in either party’s direction.

[ 42 ] It is simply impossible for me to declare one party more successful than the other. Despite the parties’ efforts and submissions it would be pure guesswork.

[ 43 ] To adequately appreciate the positions and their nuances would necessitate the very hearing the parties and their counsel worked so hard to avoid. Even then, the answer would very likely be the same.

[ 44 ] In short, I am unable to conclude that either party was “successful”. They reached a compromise. Unfortunately, that result was not achieved until after the passage of more than two years and the expenditure of tens of thousands of dollars. I can go no further than to say it is unfortunate the resolution was not achieved earlier.

[ 45 ] Subject to the observation in paragraph 20 of this endorsement, both parties shall bear their own costs of this proceeding.

“ Justice A. D. Grace”

Justice A. D. Grace

DATE: December 06, 2012