SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-13-2390
DATE: 2014/08/20
RE: David Thomas Neilipovitz, Applicant
AND
Michelle Marie Neilipovitz, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL:
Adriana Doyle, for the Applicant
Pam MacEachern, for the Respondent
HEARD: Written Submission (In Chambers)
COSTS ENDORSEMENT
[1] On May 16, 2014, I heard a motion and cross-motion for a number of heads of interim family law relief. On June 25, 2014, I delivered my decision and concluded with the following brief paragraph:
Success on these motions is clearly divided. If either party has made an offer to settle that they feel meets the test under Rule 18 then I will accept brief written submissions on costs within 10 days, otherwise, no costs.
[2] I have now had an opportunity to review the written submission. Each party made a number of offers to settle the motions. The applicant asserts that my order is as favourable or more favourable to him than the offers he has made. He seeks full indemnity costs of $37,984. The respondent indicates that neither party did as well or better than any of the offers made. Her position is that no costs should be ordered.
[3] Sub-rule 18(14) of the Family Court Rules, O.Reg. 114/99, as amended, addresses the costs consequences of failing to accept “an” offer or “the” offer. I find from that wording that I am to consider the complete offer unless it is clear that the distinct individual provisions within it are severable. I agree with Justice Wildman in Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 (S.C.J.) where she notes at para. 13 that discrete offers for each issue in play are an underused tool that can confer considerable settlement and cost advantages, and where she found at para. 14:
… as the offer was not severable, the wife would have to do as well or better than all the terms of the offer, in order to take advantage of the full recovery cost provisions of Rule 18(14).
[4] In this case, none of the formal offers made by the applicant were severable. They indicated on their face that acceptance of “this Offer”, referring to the whole document, was required. My order was less favourable to the applicant than what he offered on (1) the disposition of the matrimonial home, and (2) the amount of income to impute to the respondent. The latter also resulted in less favourable orders on (3) the amount of set-off child support and (4) the proportions for section 7 expenses.
[5] The burden of proving that my order is as favourable or more favourable than the offer to settle is on the applicant: see Rule 18(15). I find that he has not met that burden. No order as to costs.
Mr. Justice Timothy Minnema
Date: August 20, 2014
COURT FILE NO.: FC-13-2390
DATE: 2014/08/20
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: David Thomas Neilipovitz, Applicant
AND
Michelle Marie Neilipovitz, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL:
Adriana Doyle, for the Applicant
Pam MacEachern, for the Respondent
Endorsement on costs
Mr. Justice Timothy Minnema
Released: August 20, 2014