Court File and Parties

Citation: Bowler v. Onesan, 2017 ONSC 3550 Court File No.: F300/17 Date: June 7, 2017

Superior Court of Justice – Ontario Family Court

Re: William Blake Bowler, applicant And: Loredana Onesan, respondent

Before: Mitrow J.

Counsel: Peter Eberlie for the applicant Michael Nyhof for the respondent

Heard: written submissions filed

Endorsement on Costs

[1] I have reviewed the parties’ written costs submissions.

[2] The applicant father submits that the issue of costs should be fully determined following receipt of the applicant’s drug test results (that the applicant submits will show “zero levels”) and that pending receipt of that information and receipt of written confirmation of the position of the Society, the respondent should pay the applicant $5,579, representing half of his costs.

[3] The respondent mother submits that, at best, she was successful on the motion and, at worst, success was divided. The respondent seeks costs of $7,500.

[4] The significant issue on the motion was the extent, if any, to which the applicant’s access should be restricted. After full argument, on all the material, the respondent was successful to the extent that, for now, no overnight access was ordered; all other requests by the respondent for access supervision terms were rejected.

[5] The applicant’s costs submissions included reference to some facts arising subsequent to the date that the motion was argued. I agree with the respondent’s position that these “facts” should not be considered in relation to the costs disposition.

[6] I consider the factors in rule 24(11). The issue of access was important, but not complicated. Applicant’s counsel spent 25 hours, while respondent’s counsel spent 41 hours.

[7] Although there was divided success, I decline to engage in an attempt to analyze who was “more successful” and whether that may lead to a modest award of costs.

[8] I say this as I find that both parties behaved unreasonably as each party failed to make an offer to settle. Reasonableness is a factor in rule 24(11), and rule 24(5)(a) includes a consideration of whether an offer has been made as part of a party’s behaviour, and whether that behaviour is reasonable or unreasonable.

[9] The respondent does not dispute the applicant’s submission that 21 affidavits were filed on the motion. Neither party’s costs submissions refer to any offer to settle, from which I infer that no offers were made.

[10] In family law cases, it is important to make offers and to make them often, and it may constitute unreasonable conduct to fail to make an offer: see Sinibaldi v. Sinibaldi, 2011 ONSC 4242 at para. 19; Reati v. Racz, 2016 ONSC 3769 at para 13; and Potter v. Da Silva, 2014 ONCJ 443 at para. 22.

[11] Both parties, seemingly, had sufficient time, energy and money to engage in a flurry of affidavits, while apparently ignoring a most important obligation – make an offer.

[12] On the facts of this case, the failure to make an offer disentitles either party to costs.

[13] I order that each party shall be responsible for paying his or her own costs of the motion.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: June 7, 2017