COURT FILE AND PARTIES
COURT FILE NO.: FC-09-1166-2
DATE: 2014/05/27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sara Dana Dunn, Applicant
AND
James David Shaw, Respondent
BEFORE: Mr. Justice T. Minnema
COUNSEL: Mary Cybulski, for the Applicant
Stephen M. Pender, for the Respondent
HEARD: In Chambers (Written submissions)
COSTS ENDORSEMENT
MINNEMA J.
[1] Following a three day trial I delivered my Reasons for Judgment, ending as follows:
Although Ms. Dunn has had success on the main issue, Mr. Shaw has obtained the bulk of the financial orders he sought and established a significant lack of cooperation and compliance by Ms. Dunn regarding financial disclosure. Neither party has been entirely reasonable in their approach to the issues. As such, I am not inclined to award costs to either party. However, I have not heard arguments so if the parties still wish to address me on costs they may do so in writing within 30 days.
[2] Ms. Dunn has since delivered written submission seeking costs on a substantial indemnity basis of $5,560.11 on three grounds: success at trial, reasonableness, and offers to settle. Mr. Shaw submits that there should be no order as to costs.
[3] Pursuant to subsection 131(1) of the Courts of Justice Act, R.S.O., c. C.43, as amended, costs are discretionary. In exercising my discretion I am guided by Rule 24 of the Family Court Rules, O. Reg. 114/99, as amended.
[4] Regarding the first two grounds argued by Ms. Dunn, I addressed them in my Judgment. I noted the divided success (Rule 24(6)) and that a party who behaved unreasonably may be deprived of costs (Rule 24(4)). Regarding the latter, one of the fundamental purposes of modern costs rules is to discourage and sanction inappropriate behavior by litigants: Serra v. Serra (2009), 2009 ONCA 395, 66 R.F.L. (6th) 40 (Ont. C.A.). I see no reason to revisit those findings. I therefore turn to the third ground raised by Ms. Dunn.
[5] The Offer to Settle was dated September 20, 2013, found in her Settlement Conference Brief, and signed by her counsel at the time, but not by Ms. Dunn. It reads as follows:
Implementation of the recommendations of the Office of the Children’s Lawyer.
Child support set off pursuant to the guidelines.
Retroactive adjustment of child support to reflect the mother’s actual income since the child support order.
[6] Ms. Dunn argues that significant weight should be given to the offer in determining costs and in assessing reasonableness. Mr. Shaw’s response is that the offer cannot be considered under Rule 18 because it was improperly executed, and it was impossible for him to agree to items 2 and 3 as Ms. Dunn did not provide her financial disclosure.
[7] I rely on the following passage from Riss v. Greenough, 2003 2224 (ON SC), [2003] O.J. No. 1574 (S.C.J.):
32 … The … offer purports to have been prepared, but is not signed, by his counsel. It is, however, signed by the father. Subrule 18(4) states that "an offer shall be signed personally by the party making it and also by the party's lawyer, if any." This is a straightforward, uncomplicated requirement. It also is mandatory. The lack of a signature by counsel is sufficient to invalidate the offer. I do not think that anything in rule 2 should be used to resuscitate the offer and, being invalid, resort cannot be had to subrule 18(16). In any event, there is a further problem with the … offer. It provided that the parties would "arrange a schedule" as to the time the child would spend with each parent. Such a provision, if accepted, is too vague for enforcement. And if an "offer" is not capable of enforcement, it is not an offer under the Family Law Rules.
[8] The Offer to Settle here contains as significant an irregularity as in Riss, if not more so, in that it was not signed by the party. I find that it is not a valid offer under Rule 18. I also find that it is not an offer under the Rules generally, including Rule 24(5)(b), because paragraphs 2 and 3 are not capable of enforcement. In my view, without setting out specific table amounts of support that could be accepted, or at least proposing the incomes on which support could be calculated, no Offer to Settle regarding support was being made. To purport to offer that child support be determined pursuant to the Child Support Guidelines offers nothing; section 33(11) of the Family Law Act already directs that a child support order shall be determined in accordance with the Guidelines.
[9] Had I found that this Offer to Settle was valid for the purposes of Rules 24(5)(b) and 24(11)(b), I would have nonetheless found that it was unreasonable. The lack of timely financial disclosure from Ms. Dunn precluded acceptance.
[10] There is no need for me to consider Mr. Shaw’s argument that a costs order should not be made against him as it would impact his ability to meet the needs of Aedan. That is only a factor in setting “the amount” of costs (Rule 24(11)(f)), and I am still not inclined to award costs to any party.
[11] I find that an order of “no costs” is fair and reasonable in all the circumstances.
Mr. Justice Timothy Minnema
Date: May 27, 2014
COURT FILE NO.: FC-09-1166-2
DATE: 2014/05/27
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Sara Dana Dunn, Applicant
AND
James David Shaw, Respondent
BEFORE: Mr. Justice T. Minnema
COUNSEL: Mary Cybulski, for the Applicant
Stephen M. Pender, for the Respondent
COSTS ENDORSEMENT
Mr. Justice Timothy Minnema
Released: May 27, 2014