SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-14-704

DATE: 2015-10-30

RE: Trina Riegg, Applicant

AND:

Mark Riegg, Respondent

BEFORE: McDermot J.

COUNSEL: Eun-Kyung Lee for the Applicant

Carolyn T.M. Warner for the Respondent

HEARD: By written submissions

ENDORSEMENT

[1] On September 3, 2015, I heard the Applicant’s motion for a temporary order placing the parties’ 6 year old daughter in a French Immersion school in Alliston. The Applicant Mother had requested an order placing Eva in the Alliston French Immersion school alongside her older brother. The father disagreed; he wished Eva to be placed in a newly constructed Roman Catholic school in his school catchment area.

[2] The following day, I issued my endorsement and granted the relief requested by Ms. Riegg on a temporary basis. Ms. Riegg now requests costs of the motion.

[3] Ms. Riegg submitted an offer to settle which provided for Eva to “attend the French Immersion program at W.H. Day Elementary School.” Based upon this Ms. Riegg requests full indemnity costs. Mr. Riegg suggests that this offer was not in accordance with the order that I made which was temporary only and that only partial recovery costs be ordered. Alternatively, he says that, due to the difficulty of the schooling issue for these parties, that each party bear his or her own costs, or that costs be reserved to the trial judge.

[4] It is undoubted that Ms. Riegg was successful on the motion. The major issue is the effect of the Offer to Settle and disposition of costs in this matter.

[5] Neither party alleges unreasonable or bad faith conduct.

Award of Costs

[6] As noted above, Mr. Riegg’s counsel, Ms. Warner, suggested that costs either be borne by each party or reserved to the trial judge.

[7] Reserving the costs of the motion to the trial judge is contrary to the rule that costs be fixed at each stage of the litigation: see Rule 24(10) of the Family Law Rules.[^1] It is to be noted that this rule is mandatory and provides that the court “shall” determine costs “[p]romptly after each step in the case.” There is no reason to depart from this rule in the present case and I am not willing to do so.

[8] Ms. Warner suggests as well that I order each party bear their own costs because of “the difficulty of the issue of Eva’s schooling.”

[9] In considering costs under Rule 24(1) of the Family Law Rules, costs follow the event, and a successful party is presumed to be entitled to costs. In determining success, I may take into account the offers to settle submitted by each of the parties: see Sims-Howarth v. Bilcliffe, 2000 22584 (ON SC), [2000] O.J. No. 330 (S.C.J.) at paragraph 9 and Lawson v. Lawson, 2008 23496 (ON SC), [2008] O.J. No. 1978 (S.C.J.) at paragraph 7.

[10] The two offers to settle make it clear to me that the Applicant was wholly successful and the successful party is generally entitled to costs. There are limited grounds to depart from this rule. These circumstances would include unreasonable conduct or bad faith conduct, neither of which was alleged by either party in the present case: see Rules 24(4) and 24(8). There is no longer a rule that because the matter involves custody of a child or the incidents of custody, costs should not flow. Finally, this is not a situation where there are issues of impecuniosity or “impoverished circumstances” as in Murray v. Murray, 2005 46626 (ON CA), [2005] O.J. No. 5379 (C.A.); both parties work and have income and assets.

[11] Accordingly, in this matter, and based upon the offers to settle, the Applicant, being the successful party, should have her costs of the motion. The issue is whether costs should flow on a full or partial recovery basis due to the Applicant’s Offer to Settle.

Offer to Settle

[12] The Respondent suggests that the offer made by the Applicant was for a final order respecting the schooling of Eva. As such, he says that the order, which was interim only, was not in accordance with the Applicant’s Offer to Settle.

[13] In the event that a party is more successful than his or her offer, I am bound to order costs on a full indemnity basis: see Rule 18(14) of the Family Law Rules. For this Rule to apply, the offer has to comply with the formalities required under Rule 18 including a requirement of service at least one day prior to the motion, that the offer be signed by the party and that the offer not expire or be withdrawn prior to the hearing of the motion: Rule 18(4) and (14). Finally, under Rule 18(16), when I am ordering costs, I may further take into account any offers to settle, even if they do not comply with Rule 18(14) as noted above.

[14] In the present case, the offer made by Ms. Riegg complies with the formal requirements of the rule. It was served in time, and was properly executed. The terms as to its expiry were clear and unequivocal. As such, barring the issue of whether the result at the motion was equal to or better than the offer, the offer would at first glimpse result in a full recovery award of costs under Rule 18.

[15] I note as well that, although the motion did not request a temporary order regarding schooling, this was not a motion seeking summary judgment. As custody remains a live issue for trial, I could not have reasonably made a final order. In my view, there was no possibility that the Applicant would have obtained a final order for the schooling of Eva at this motion.

[16] However, we have to look at this offer from the perspective of what would be ordered were the Respondent to have accepted the offer. The underlying basis of an offer, after all, is the fact that, if accepted, it may become an order according to the terms of the offer: see rule 18(9). This is especially significant considering the limited ability of counsel or the parties to communicate or discuss settlement between them. There was considerable correspondence between the parties and counsel and the parties were unable to even agree on a mediator to deal with their issues.

[17] A review of the offer makes it apparent that, were the Respondent to have accepted this offer unconditionally, Ms. Warner is correct that this would have resulted in a final order, something I would not have ordered on the motion. The offer states that the Applicant is offering to settle the “schooling issue” which implies that the offer is intended to settle the issue on a final basis. The order granted, which was all that that was requested, was a temporary order only.

[18] Accordingly, the offer was not bettered by the result at the motion. Accordingly, rule 18(14), with its mandatory provisions regarding costs, is not engaged.

Quantum of Costs

[19] Under Rule 18(16), I can take an offer to settle into account, even if rule 18(14) does not apply.

[20] I agree with counsel for the Applicant that the offer measures the success that was achieved and that the offer could have been a basis for settlement even where it could not be unconditionally accepted.

[21] In this case, the Applicant has filed a Bill of Costs indicating full recovery costs of $8,360.33 inclusive of disbursements and HST. Partial recovery costs set at 65 percent of full recovery costs are suggested to be $5,520.39. Considering the complexity of the matter, and the volume of material filed, along with the time taken to argue the motion (which did extend into the afternoon), these are not unreasonable amounts. Because of the offer to settle, costs should be slightly higher than partial recovery costs.

[22] As such, the Applicant is awarded costs in the amount of $6,000 payable by the Respondent within 60 days.

McDERMOT J.

Date: October 30, 2015

[^1]: O. Reg. 114/99