SUPERIOR COURT OF JUSTICE - ONTARIO
Court File No.: 4692/96 M1
Date: 20131004
RE: James David Gray Applicant
v.
Kathleen Janet Gray
Respondent
Before: Conlan J.
Counsel:
Carol A. Allen, for the Applicant
Erroll G. Treslan, for the Respondent
ENDORSEMENT RE COSTS
Conlan J.
Background
[1] The trial of this matter was heard in Owen Sound on June 13 and 14, 2013.
[2] After reviewing the written submissions filed by the parties, I released my Reasons for Judgment dated August 26, 2013.
[3] The issues were spousal support and child support including section 7 Guidelines expenses.
[4] At paragraph 98 of my Reasons for Judgment, I stated the following: “If the parties are unable to resolve the issues of costs, I may be spoken to through the trial coordinator in Owen Sound. It seems to me that success was somewhat divided in this case and, thus, counsel should consider whether no costs is an appropriate disposition”.
[5] Subsequently, I was advised that the parties wished to make written submissions on costs. I have now received and reviewed those written submissions. I am grateful to both counsel for their helpful materials.
The Positions of the Parties
[6] Mr. Gray has filed a Bill of Costs showing $31,878.00 on a full indemnity scale, including disbursements and tax, and $29,414.42 on a partial indemnity scale, all-inclusive.
[7] Mr. Gray submits that, on balance, he was more successful after trial than Ms. Gray. Further, Mr. Gray argues that his Offer to Settle served on June 12, 2013 is “very close” to what was ordered in my Reasons for Judgment.
[8] As such, “it is Mr. Gray’s submission that an appropriate amount of costs payable on a partial indemnity basis by Ms. Gray would be $10,000.00”.
[9] Ms. Gray agrees that success was divided, and “as a result, unless this Honourable Court finds that Mr. Gray’s June 12, 2013 Offer to Settle satisfies the criteria under Family Law Rule 18(14), it is respectfully submitted that there should be no order as to costs”.
[10] Ms. Gray submits that the said Offer to Settle fails to satisfy the requirements of that Rule for three reasons: it was not made at least seven days before the commencement of the trial; it was not signed personally by the party making it; and the Order made after trial was not more favourable to Mr. Gray than the Offer.
Analysis
[11] Ms. Gray is correct that Mr. Gray’s June 12, 2013 Offer to Settle does not attract the presumption of costs consequences provided for in Rule 18(14). It was not made at least seven days before the trial (requirement number 2). It was not signed by Mr. Gray as required under Rule 18(4), although I note that it is quite common for Offers to Settle in family and civil cases to be in the form of a letter from counsel which, as here, specifies that it is an Offer under the Rules. Thus, I place very little weight on that technical deficiency.
[12] The law is clear that the burden rests with Mr. Gray to prove on balance that he obtained an Order that is as favourable as or more favourable than his June 12, 2013 Offer to Settle.
[13] Ms. Gray is incorrect that, for Rule 18(14) to apply, the Order made after trial must be found to be more favourable than the Offer to Settle.
[14] In any event, I am not satisfied on balance that the Order made after trial is equal to or more favourable to Mr. Gray than the said Offer to Settle. It is a close call.
[15] Even Ms. Gray acknowledges in her written submissions on costs that the only material difference between the Order made after trial and the Offer to Settle is that I ordered that spousal support could be brought back to Court for review not earlier than August 1, 2016 (paragraph 72 of my Reasons for Judgment), whereas the Offer to Settle provided that spousal support payable by Mr. Gray to Ms. Gray would terminate at the end of June 2015.
[16] What Ms. Gray ignores in her written submissions on costs, however, is that the Court may consider, in assessing the factors under Rule 24, any written offer to settle, even if Rule 18(14) does not apply: Rule 18(16).
[17] The purpose of Rule 18(16) is clear. Family law litigation is expensive, time-consuming and stressful. Offers to settle should be encouraged.
[18] Rule 18(16) explains why, for example, a Court has discretion to award full recovery of costs even where the conditions of Rule 18(14) have not been met: M. (A.C.) v. M.(D.), 2003 18880 (ON CA), [2003] O.J. No. 3707 (C.A.).
[19] Mr. Gray’s June 12, 2013 Offer to Settle is close enough to what was ordered after trial that I am satisfied on balance that he should receive some costs. The intention is not to punish Ms. Gray. But to make an Order of no costs in the face of that fairly reasonable Offer to Settle would send the wrong message on the value of offers to settle in family law litigation.
[20] On quantum of costs, the overriding principle is to make an award that is fair, just and reasonable in all of the circumstances. I shall take in to account the factors listed in Rule 24 and the reasonable expectations of the parties.
[21] Here, the quantum of costs ordered in favour of Mr. Gray must be substantially discounted. Ms. Gray has a fairly limited ability to pay. Her health is precarious. And, at the end of the day, success was largely divided on the issues decided after trial.
[22] In my opinion, balancing all of the factors but still giving credence to the importance of offers to settle, this is a case where I should award rather nominal costs in favour of Mr. Gray. I should at least give him something towards his disbursements.
[23] I Order that Ms. Gray pay costs in favour of Mr. Gray in the total all-inclusive amount of $5,000.00. That amount is about two-thirds of Mr. Gray’s disbursements as outlined in his Bill of Costs.
[24] Ms. Gray shall pay that amount in full by January 31, 2014. That gives her more than 90 days to do so and much longer than the usual 30 days.
[25] If the parties wish to offset the within costs award against other amounts owing by Mr. Gray to Ms. Gray, then that is up to the parties.
Conclusion
[26] I Order that Ms. Gray, by January 31, 2014, pay costs in favour of Mr. Gray in the total all-inclusive amount of $5,000.00.
[27] I understand from Mr. Gray’s written costs submissions that costs of the Motion heard by Herold J. on April 30, 2012 were reserved to the trial Judge and remain outstanding. Given what I have ordered herein, I exercise my discretion and make no order as to costs regarding that Motion.
Conlan J.
DATE: October 4, 2013
COURT FILE NO.: 4692/96 M1
DATE: 20131004
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: James David Gray
v.
Kathleen Janet Gray
BEFORE: Conlan J.
COUNSEL: Carol A. Allen, for the Applicant
Erroll G. Treslan, for the Respondent
ENDORSEMENT RE COSTS
Conlan J.
DATE: October 4, 2013