Introduction

[1] On September 14, 2017, I heard a long motion brought by the applicant for spousal support. I allowed the motion, subject to an order for child support in favour of the respondent. There were other issues raised by the respondent, including custody and costs issues, but these were abandoned during argument.

[2] Both parties now request costs. The applicant seeks costs of the motion, which his counsel quantifies as being $3,693.56 on a partial recovery basis, or $5,540.34 on a full recovery basis. It is unclear from his submissions as to the scale of costs that Mr. Lamb claims.

[3] Ms. Watt also seeks costs; she seeks partial and then full recovery costs totalling $15,159.52 inclusive of disbursements and HST.

[4] Costs are generally measured by the success that the party enjoyed in the motion: see Rule 24(1) of the Family Law Rules.[^1] Both parties claim success on the motion, and they each rely upon their respective offers to settle. There are also issues of unreasonable conduct by both parties.

Discussion

[5] As noted above, costs generally follow the event and the successful party is, as a rule, entitled to be awarded their costs.

[6] Both parties submitted offers to settle made in these proceedings. Rule 18 speaks to offers to settle. If a party submits an offer in accordance with Rule 18(14), and obtains and order that is equal to or better than his or her offer, that party is entitled to full recovery costs. Even if the party does not comply with Rule 18(14), the court may take the offer into account in determining costs: Rule 18(16).

[7] Moreover, if a party has indulged in unreasonable conduct in respect of the motion, that may disentitled the party to costs, even where that party was successful: see Rules 24(4) and 24(11)(b).

[8] Both parties rely upon their respective offers to settle. These offers must be viewed in light of the major issue argued in the motion. That was spousal support; no other issue was argued on the motion as the temporary primary residency issues and payment of child support was on consent (although the quantum of child support and the proportions of section 7 expenses had to be determined as there was no agreement on income). Other issues, such as the costs of Mr. Winter (the lawyer for the children) and the request for sole custody, were abandoned by the respondent.

[9] The applicant relies upon two offers that he says that he made. As noted by the respondent, neither of these were offers to settle the motion, and were final offers; accordingly, they may be taken into account in reviewing costs, but are not compliant with Rule 18 for the purposes of these submissions.

[10] The applicant’s first offer was the draft separation agreement served by him along with the application on November 26, 2016. In that offer, he suggests setting off the spousal support obligation as against his child support; this was clearly better for him than the result on the motion which was that the respondent pay spousal support in the amount of $450, less than the child support that I ordered the applicant to pay in the amount of $748 per month.

[11] The applicant’s second offer was also a final offer served on July 14, 2017. However, that offer provided for final child support of $738 per month with no spousal support payable. However, that was based upon a waiver by the respondent of any retroactive claim for child support. I agree with Mr. Dart that retroactive issues are irrelevant to the issues on the motion.

[12] Unlike Mr. Lamb, the respondent did make an offer to settle the motion. That offer echoed Mr. Dart’s argued position on the motion that the spousal support issue had to be dealt with at trial and that the respondent begin paying $748 per month in child support forthwith. Mr. Dart was not successful in this position on the motion: he had argued that because of the conflicting evidence on entitlement, the issue of spousal support could only be addressed at trial. That was not my ruling; I determined that once a prima facie case for entitlement was made, interim spousal support should flow from that and that spousal support should not be delayed for a trial of an issue once that prima facie case was made.

[13] Therefore, the respondent did not better her offer and that offer, in fact, highlights the lack of success of the respondent’s argument on the motion. Taking into account that the major issue argued on the motion was the applicant’s entitlement to costs, the offer would therefore militate against an award of costs in favour of the respondent.

[14] I also reject the respondent’s argument that my order results in the applicant owing “an amount of retroactive child support which will far outweigh any amount of spousal support”.[^2] I have already ruled that the applicant’s second offer was irrelevant to the motion because it was based upon a waiver of retroactive support; Mr. Dart’s argument about the effect of my ruling on retroactive support is similarly irrelevant. My order was effective October 1, 2017 and the subtleties of the retroactivity of both child and spousal support will be addressed at trial.

[15] There are also issues of unreasonable conduct. I find that the applicant was unreasonable in not paying anything for child support between the date of separation and the motion: even where there might have been a set off for spousal support, these children had a lot of activities which the respondent paid for in full without contribution by the applicant.

[16] On the other hand, the respondent’s position on the income of her partner, and her refusal to disclose it in her financial statement was also unreasonable. That disclosure may have allowed for settlement of the motion, and the respondent cannot answer her failure to swear an incomplete financial statement by relying upon the motion materials in which she did disclose her partner’s income. Early disclosure of the respondent’s partner’s income was clearly relevant to the applicant’s claim for spousal support and may have allowed for a reasonable offer to settle to be made, or allowed applicant’s counsel to prepare a hardship argument based upon the respective standards of living of the two households.

[17] It was also unreasonable for the respondent to have abandoned the claim for Mr. Winter’s costs at the hearing of the motion. Although this was contained in her offer to settle, applicant’s counsel had to address that issue in her argument and in her client’s materials. My recollection is that applicant’s counsel was only told about the abandonment after she had addressed it in her argument.

[18] I therefore find that the applicant is entitled to his costs of the motion on a partial recovery basis.

[19] There shall be an award of costs in favour of the applicant in the amount of $3,000 inclusive of HST and disbursements. That amount is to be forthwith paid from the respondent’s share of the net proceeds of the matrimonial home, presently held in trust.

MCDERMOT J.

Date: November 17, 2017

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

[^2]: Respondent’s submissions, para. 10

Lamb v. Watt, 2017 ONSC 6816

Case Summary

Introduction

Discussion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues