SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: FS-12-6000-00
DATE: 20140616
RE: Biagio (“John”) Galle – and – Simon De Lorenzo
BEFORE: D.L. Edwards J.
COUNSEL:
Applicant, Self-Represented
Nadine Barmania, for the Respondent
COST ENDORSEMENT
[1] On May 16, 2014, I released Reasons for Judgment arising from a family law trial. The issues raised in the trial primarily involved the respondent’s access to the parties’ child.
[2] On the issue of costs, I stated that it appeared to me that the parties should bear their own costs. However, I offered the parties the opportunity to argue for a different result by providing cost submissions. I have received and considered those submissions.
[3] The applicant submits that neither party obtained a result that was more favourable than their respective offers to settle; however, he requests a modest award of costs in the amount of $5,000 to assist him in recovering some of the legal costs that he paid to his lawyer who assisted him in the preparation for the steps leading up to trial.
[4] The respondent submits that she was the successful party and she obtained a result that was more favourable than her offers to settle. Accordingly, she requests a cost order in the total amount of $43,339.90.
[5] Rule 24(1) of the Family Law Rules states that the successful party is presumed to be entitled to recover costs.
[6] Rule 24(11) provides six factors to consider in awarding costs:
A. the importance, complexity or difficulty of the issues
B. the reasonableness or unreasonableness of each party’s behaviour in the case
C. the lawyers’ rates
D. the time properly spent on the case
E. expenses properly paid or payable and
F. any other relevant matter.
[7] Rule 24(6) states that where success is divided, the judge may apportion costs as appropriate.
[8] Notwithstanding the parties’ submissions, my view of the success of the parties remains the same; the success was mixed. Bearing this in mind, as well as the six factors from Rule 24(11), and in the absence of any offer to settle, I find that this is an appropriate matter in which no cost award should be made.
[9] However, both parties made offers to settle and I must consider the effect, if any, of those offers.
[10] I have reviewed the offers to settle submitted by each party.
[11] Rule 18(14) states that:
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:
If the offer relates to a motion, it is made at least one day before the motion date.
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.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
[12] The offers to settle by each party were not severable. The other party had the choice of accepting or rejecting the entire offer.
[13] I am satisfied that, when the order and the offers to settle are compared in their totality, neither party obtained an order as favourable or more favourable than the offer.
[14] As success was mixed, and as no party obtained an order as favourable or more favourable than their offer, there will be no order as to costs.
D.L. Edwards J.
DATE: June 16, 2014
COURT FILE NO.: FS-12-6000-00
DATE: 20140616
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Biagio (“John”) Galle – and – Simona De Lorenzo
BEFORE: D.L. Edwards J.
COUNSEL: Applicant Self-Represented
Nadine Barmania for the Defendant
COST ENDORSEMENT
D.L. Edwards J.
DATE: June 16, 2014