SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: 07-FD-331806-1
Date: 20140429

RE: R.P.S., Applicant

- and -

K.J.S., Respondent

BEFORE: S. Stevenson, J.

COUNSEL:
The Applicant, Appearing in Person
The Respondent, Appearing in Person

HEARD: January 20 to 24, 2014

ENDORSEMENT AS TO COSTS

[1] The parties have been unable to agree on costs. I have now had an opportunity to review the written costs submissions of both parties.

[2] The respondent seeks costs and disbursements in the amount of $12,216.43 which includes costs she paid to her former lawyer. She submits that she should be granted costs as the applicant failed to follow the dispute resolution mechanism set out in the previous order that he was seeking to vary and that the Court reprimanded him for this. She also contends that she was successful and that she attempted on many occasions to persuade the applicant to resolve matters through mediation.

[3] The applicant submits that he should be granted costs as his pleadings and offers since July 2012 are consistent with the order granted and in some respects more generous than the order. He also contends that the respondent has shown an overall lack of reasonableness and did not provide a reasonable offer.

[4] Rule 24 of the Family Law Rules, O. Reg. 114/99 (the "FLRs"), governs the determination of costs and specifically, Rule 24(11) sets out the factors that a court must consider when determining costs.

Success

[5] Under Rule 24(1) there is a presumption that a successful party is entitled to costs. Upon a review of all of the issues, I find that there was divided success.

[6] The applicant was successful in that a material change was found, contribution to private school was denied, child care costs were ordered as he submitted with the exception that the contribution by the applicant is to continue until the end of this academic year, not all section 7 expenses requested by the respondent were ordered and his proposal regarding contributions to post-secondary expenses was closer to the order granted than the applicant's proposal.

[7] The respondent achieved success in that child support was ordered, some contribution by the applicant to section 7 expenses ongoing and retroactive was ordered, support for the eldest child was ordered while he attends university and a contribution to university expenses by the applicant and the respondent was ordered.

[8] Pursuant to Rule 24(6), if success in a step is divided, the court may apportion costs as appropriate.

Offers to Settle

[9] Rule 18(14) of the FLRs describes the costs consequences of failing to accept an Offer to Settle as follows:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18(14).

[10] Rule 18(16) provides as follows: "When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply."

[11] The applicant served two Offers to Settle, one dated January 12, 2014 and one dated January 18, 2014. Pursuant to Rule 18(4), an offer shall be signed personally by the party making the offer and also by the party's lawyer, if any. This is a mandatory provision. Neither of the offers served by the applicant is signed and therefore the offers are contrary to this provision and not capable of enforcement. Further, the last offer which the applicant contends is consistent with and even more generous than the order granted, was not served at least 7 days before the trial and does not comply with the provisions of Rule 18(14). With respect to the respondent's offer dated January 12, 2014, it does not satisfy Rule 18(14) 5.

Factors in Costs

[12] The factors that a court must consider in determining costs are set out in s. 24(11) of the FLRs. They have been considered by me as follows:

The Importance, Complexity or Difficulty of the Issues

[13] The issues were important to both sides. The issues were not overly complex or difficult.

The Reasonableness or Unreasonableness of Each Party's Behaviour in the Case

[14] I found the behaviour of both parties to be unreasonable. During the trial, each party took every opportunity to denigrate the other. Each made inappropriate remarks about the other's ability to parent and the other's character in general. This was despite the fact that this was a trial about monetary issues. I voiced my concerns to the parties at the end of the trial. With two of the children experiencing significant difficulties, one would expect that the parties would be able to put their animosity and bitterness towards one another aside. Unfortunately and tragically for the children, this does not appear possible. The parties continue to attack each other in their written costs submissions. This behaviour was in existence throughout the litigation.

The Lawyers' Rates

[15] No details were provided by the respondent concerning her lawyer's rates and no Bill of Costs was provided. Only two letters from counsel setting out the total amount for fees, HST and disbursements were provided for 2012 and 2013. For 2012 the total is $4,090.01 and for 2013 the total is $5,913.01.

The Time Properly Spent on the Case

[16] No details are provided with respect to the respondent's counsel's time spent on the file. Each party claimed time spent on the matter but no attendances, tasks completed for preparation, etc., are detailed. The applicant provided an invoice from his girlfriend, one of the witnesses, for her time on the matter which I find inappropriate. Both parties claim time lost from work for the trial.

Expenses Properly Paid or Payable

[17] Both parties submit costs for parking which costs are not unreasonable. The respondent also claims travel costs for her sister to attend to testify, including airfare, which I find inappropriate.

Any Other Relevant Matter

[18] Rule 24(11)(f) of the FLRs states that a person setting the amount of costs shall consider any other relevant matter. The applicant contends that he asked the respondent as far back as July 2012 to try to negotiate a settlement. He denies that the respondent ever requested mediation. He contends that the respondent's suggestion of a parenting coordinator related to the eldest son's issues that he was experiencing.

[19] The respondent, as indicated, contends that the applicant should have followed the original order and used the services of a parenting coordinator as she requested in June of 2013. She further submits that the Court reprimanded the applicant for failing to do so. The respondent's submission is incorrect. In dealing with the issue of the use of the joint account only, the applicant was faulted for not using the parenting coordinator as set out in the order of Harvison Young J.

[20] While each party may at times have suggested negotiation or alternative dispute resolution methods, neither party acted appropriately in trying to resolve these issues. Each can be faulted for the lack of a resolution.

Order

[21] Taking into consideration the divided success, the submissions of the parties, the unreasonable behaviour of both parties and the other factors outlined above that I have considered under Rule 24(11) and Rule 18, neither party shall pay costs to the other.

Stevenson J.

DATE: April 29, 2014