ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 568/05
DATE: 2012-12-21

BETWEEN:

C. J. J. Applicant – and – M. T. M. Respondent

Loreen Irvine, for the Applicant

Clinton H. Culic , for the Respondent

Sheldon D. Cherner, for the children, N. and K.

HEARD: In Writing

COSTS DECISION

T.D.RAY, j.

[ 1 ] Following my decision in this matter, December 3, 2012, ( J. v. M ., 2012 ONSC 6861 ), in which I ordered a variation of the order of Pedlar, J, dated January 12 ,2006; and awarded custody of the two children to the applicant, I have received costs submissions from the parties.

[ 2 ] During the course of the seven day trial I heard 14 witnesses, and reviewed two large volumes of documents that were filed in evidence. At the conclusion of my reasons, in addressing costs submissions, I suggested that the parties first consider my findings that “ I am quite satisfied that 90% of the problems that I heard evidence about would have been resolved had the parents been able to put their own selfish interests behind them and put the children’s interests first .” [1]

[ 3 ] The successful applicant in his submissions seeks an order for costs in the amount of $23,216.15 including partial indemnity costs up to November 7, 2012, and full indemnity thereafter since my order was as favourable as his offer of November 7, 2012. [2] The unsuccessful respondent contends that in this case the parties should bear their own costs, and in any event she is impecunious.

[ 4 ] Both parties are of modest means – the respondent less so.

[ 5 ] The usual rule is that costs presumptively follow the event, subject to the discretion of the trial judge who must in consider the factors enumerated in the rules. [3] Where an offer made by a party in accordance with the rules is bettered or as favourable a result is achieved then presumptively they are entitled to full indemnity costs from the date of the offer [4] . Compliance with the rules does not mean that a judge is required to make a costs order. [5] A judge’s discretion must be exercised judicially.

[ 6 ] My observations noted above concerning the parties’ conduct which gave rise to this litigation, and quite frankly to a good deal of the disruption to the children cannot be ignored. In particular the tactical steps taken by the by the applicant so he could gain an advantage before the litigation commenced would have been more productively targeted at communicating with the respondent so as to resolve the issues for the benefit of the children. I am exercising my discretion and not awarding the applicant costs up to November 7, 2012. The principles at play for successful written offers are deserving of different considerations since the balance of the litigation might have been avoided had the respondent accepted the offer.

[ 7 ] I awarding costs for the period after November 7, 2012, in exercising my discretion, I must be mindful of the resources of the parties along with all of the other factors. She has not worked, and given the employment situation in the area north of Brockville, it may take her a while to obtain employment. In addition I must recall that I ordered her to pay child support on imputed income. The support is for the children. Any costs order will necessarily diminish her ability to pay child support. That would be counter-productive.

[ 8 ] The respondent is ordered to pay the applicant’s costs fixed at $1,000 inclusive of disbursements and HST.

[ 9 ] I note that exchanges have taken place concerning the terms of a draft order. While I acknowledge receipt of a draft order, if the parties cannot agree on its form and content, they may bring a motion in the usual fashion for an order to settle the terms of the order.

Honourable Justice Timothy Ray

Released: December 21, 2012

COURT FILE NO.: 568/05

DATE: 2012-12-21

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: C. J. J. Applicant – and – M. T. M. Respondent COSTS DECISION Honourable Justice Timothy Ray

Released: December 21, 2012

[1] J. v. M. , 2012 ONSC 6861 , para 38

[2] Family Law Rules , rule 18(4)

[3] FLR, rule 24

[4] FLR, rule 18(14)

[5] Murray v Murray 2005 46626 (ON CA) , [2005] OJ 5379 (ONCA)