Court File and Parties

Court File No.: FC-11-1314-01 Date: 20170123 Superior Court of Justice - Ontario

Re: Amber Walsh, Applicant And: Terence Davidson, Respondent

Before: The Honourable Mr. Justice R.E. Charney

Counsel: Mr. Mark S. Borden, Counsel for the Applicant Terence Davidson, Self-Represented

Heard: In-Writing

Endorsement

[1] On November 23, 2016 I released my decision in this matter dismissing the respondent father’s motion to change the final consent order dated April 8, 2013. The motion sought to change the order to expand the father’s access during the Christmas and summer vacations, reduce the father’s child support and terminate spousal support being paid to the applicant mother. At the hearing the parties were able to resolve the issue relating to summer vacation and Christmas vacation access for the father, but the father sought increased access or “shared parenting” so that he could have the children at least 40% of the time even though this specific relief was not requested in his notice of motion.

[2] The parties have been unable to agree on costs and have filed costs submissions in accordance with my decision.

[3] The mother was successful in this motion and is presumptively entitled to costs in accordance with Rule 24(1) of the Family Law Rules. She claims costs in the amount of $18,953.15 on a full recovery basis or $11,371.89 on a partial recovery basis.

[4] The applicant asks that any costs awarded be enforceable by the Family Responsibility Office (FRO) as support payments pursuant to s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, which defines a support order as including an order for “interest or the payment of legal fees or other expenses arising in relation to support or maintenance”. Pursuant to this provision, costs awards concerning support or maintenance form part of a support order that is enforceable by FRO (Clark v. Clark, 2014 ONCA 175, at para. 63; Wildman v. Wildman (2006), 82 O.R. (3d) 401 at paras 53- 59 (ONCA)).

[5] The issues on this motion related to spousal support and child support. While the second issue was ostensibly access, the father was seeking to increase his access to 40% of the time in order to decrease his child support in accordance with s. 9 of the Federal Child Support Guidelines. Accordingly, the costs order is enforceable as a support order under the Family Responsibility and Support Arrears Enforcement Act.

[6] The applicant argues that she was entirely successful on this motion and served an offer to settle on October 26, 2016. The offer to settle proposed to settle on the basis of the preservation of the status quo set out in the April 8, 2013 order. If accepted before October 28, 2016 at 5:00 p.m. each party was to bear its own costs, after which time costs would be payable by the respondent to the applicant “on a full recovery basis and at the discretion of the presiding justice”.

[7] While the October 26, 2016 offer purported to be open until the commencement of the hearing, it does not, in my opinion, qualify as an offer under Rule 18 of the Family Law Rules. Since costs are generally payable on a partial or substantial recovery basis, making acceptance of the offer conditional on the respondent paying the applicant’s costs on a full recovery basis is equivalent to withdrawing the offer on October 28, 2016 at 5:00 p.m. As such, the offer to settle did not remain open until the motion was heard on November 15, 2016. Accordingly, this offer did not comply with Rule 18(14) 3 of the Family Law Rules (“the offer does not expire and is not withdrawn before the hearing starts”), and the costs consequences of Rule 18(14) (full recovery of costs from the date of the offer) do not apply.

[8] Put somewhat differently, the costs consequences of Rule 18(14) apply only if the applicant obtains an order that is as favourable or more favourable than her offer to settle. If (putting Rule 18(14) to the side for a moment), the court awards costs on a partial or substantial recovery basis, then the applicant would not meet or beat her offer (which had costs payable by the respondent on a full recovery basis). It is only if the court were to award costs on a full recovery basis irrespective of Rule 18(14) that the applicant could be said to obtain an order that is as favourable as her offer. But, of course, if the court was prepared to award costs on a full recovery basis irrespective of Rule 18(14), then the application of Rule 18(14) becomes redundant.

[9] Added to this, the parties did settle the issue of summer and Christmas vacation at the hearing, so that the result of the motion was not simply the preservation of the status quo offered in the October 26, 2016 offer to settle. The parties signed this partial settlement on November 14, 2016.

[10] Accordingly, I do not believe that this is an appropriate case to award costs on a full recovery basis.

[11] The father takes the position that the applicant should be denied costs because she has, in his view, “acted unreasonably and in bad faith”. These allegations relate to issues that are unrelated to the motion to change, and are not appropriately before me for the purposes of the costs assessment. One such incident, for example, relates to conduct alleged to have occurred after my November 23, 2016 decision. My assessment of costs must focus on the conduct of the parties with respect to the motion, not with respect to other disputes.

[12] The father takes the position that if costs are awarded to the applicant they should be limited to $5,000 and spread out to minimize the financial hardship. He argues that he was partially successful given that his motion did result in a partial settlement that changed the summer vacation and Christmas vacation access schedule.

[13] The applicant seeks costs for preparation for and attendance at the Trial Management Conference in March 2016. The court did not make any order with respect to costs at the TMC. One of the issues at the TMC was the applicant mother’s motion to move the children to Kingston, and she subsequently withdrew this motion. Given these circumstances I am of the view that no costs should be ordered with respect to the TMC.

Conclusion

[14] Taking the foregoing into account in addition to the considerations set out in Rule 24(11) of the Family Law Rules, I order that the respondent Terrence Davidson shall pay costs to the applicant Amber Walsh in the amount of $8,000, enforceable by the Family Responsibility Office (FRO) as support payments pursuant to s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, at the rate of $500 per month commencing 30 days from the date of this order. Support deduction order to issue.

Justice R.E. Charney Date: January 23, 2017