Court File and Parties

COURT FILE NO.: 869/06

DATE: 2019-07-30

SUPERIOR COURT OF JUSTICE – FAMILY COURT -- ONTARIO

RE: Amanda Ruth Proulx, Applicant

AND:

Christian Andrew Proulx, Respondent

BEFORE: The Honourable Justice Robert B. Reid

COUNSEL: Self-represented parties

COSTS SUBMISSIONS RECEIVED: July 19, 2019

Decision on Costs

Background:

[1] A motion to change the order of Justice Brown dated December 10, 2013 involved a request by the respondent to reduce child support and a request by the applicant to vary the respondent’s access to the two children of the marriage.

[2] Both parties were self-represented.

[3] The applicant made an offer to settle the access issue dated May 10, 2019 which was accepted by the respondent on the first day of trial. The offer contained no provision as to costs.

[4] The trial began May 21, 2019 and continued for three days before Justice Lococo.

[5] On May 27, 2019, prior to final submissions, the applicant accepted the respondent’s offers to settle child support. The applicant accepted both of two offers, dated July 3 and November 28, 2018, which were essentially the same. The offers contained no provisions as to costs.

[6] The position of the respondent was that his offers were no longer available for acceptance due to the passage of time and the commencement of the trial.

[7] A motion for judgment was made by the applicant on May 30, 2019 before me, based on agreed facts. The issue was whether the offers were still available for acceptance. In my decision of May 30, I held that the offers were not time-limited and therefore that the purported acceptance by the applicant was binding.

[8] The parties were unable to agree on the issue of costs arising from the accepted offers to settle.

Positions of the parties:

[9] The respondent requests a costs award pursuant to rule 18(11) of the Family Law Rules which provides that: “If an accepted offer to settle does not deal with costs, either party is entitled to ask the court for costs.”

[10] The respondent seeks costs in the amount of $7,725 being 154.5 hours at a rate of $50 per hour incurred since the July 3, 2018 offer was made.

[11] I accept that $50 per hour is a reasonable rate to request. It is a rate that the applicant sought be imputed to the respondent for support calculation purposes.

[12] The total hours claimed would not be objectionable if they represented the respondent’s diarized total hours that would have been spent by a lawyer (as opposed to a client). However, some docketed hours do not fit that category of time, for example, attendance at court for the settlement conference, trial management conference and the trial itself since those hours would have been incurred regardless of whether a lawyer was engaged. Therefore, there will be a reduction of 25.5 hours. This produces a total costs claim by the respondent of $6,450. Disbursements have not been requested. No costs are claimed for the motion for judgment or the preparation of costs submissions.

[13] Although the respondent referred in submissions to opinions given at various conferences, those discussions were confidential and will not be considered.

[14] The applicant claims costs in the amount of $6,080. Of that sum, $3,130 was expended as a witness fee for a forensic accountant. Disbursements were $130. The remaining $2,820 was comprised of preparation time and attendances calculated at $47 per hour.

[15] For the same reasons that the respondent’s time was reduced, a reduction in the time claimed by the applicant must be made for attendance at court on February 7, 2019, for the motion of May 30 and for attendances with a lawyer. That reduction of 17 hours results in a total claim of $5,281.

[16] The applicant submits that she was not in a position to accept the offers until after the respondent made further financial disclosure which occurred after successful motions by the applicant on November 1, 2018 and January 24, 2019.

Discussion:

[17] Rule 24 of the Family Law Rules guides the court in the exercising of its discretion as to costs, which discretion is found in section 131 of the Courts of Justice Act. The presence of a written offer to settle is one of the factors to be considered by the court. Other factors include success, reasonableness of behavior, and the presence of bad faith. Subrule 18(16) provides that the court may take into account any written offer to settle, the date it was made, and its terms.

[18] The policy behind costs orders is designed to partially indemnify successful litigants, encourage settlement, and discourage and sanction inappropriate behavior by litigants.

[19] Costs orders typically follow a decision on the merits.

[20] Generally, where there is a settlement, a court is reluctant to make a costs award to one party or the other unless there are compelling reasons to do so. It is difficult to determine success in the absence of a court order against which an offer can be measured.

[21] I was not acquainted with the details of the trial proceeding and cannot gauge the potential for success of either party as compared with the accepted offers to settle. No factual findings in favour of one party or the other can be made. This is notwithstanding the fact that the respondent submits that his offers to settle were generous.

[22] The respondent notes that, apart from approximately two hours of testimony on his part, the balance of the three trial days were consumed by the testimony of the applicant and her expert witness, a forensic accountant.

[23] The respondent alleges that the offer to settle was accepted in bad faith, meaning that the applicant delayed acceptance until after the respondent prepared for and attended at the whole trial except for closing submissions. He alleges that she accepted the offer only when it appeared that her case was not going well. On that point, I can make no comment, just as I can make no comment about the reason the respondent did not accept the applicant’s offer to settle until the first day of trial. Given that the applicant herself incurred the costs of the forensic accountant in the amount of $3,130, it is difficult to conclude that her actions were taken in bad faith. It is not unusual that cases settle during trial for a variety of reasons, only one of which may be an assessment of the likelihood of success after hearing the evidence.

[24] Similarly, the respondent submits that the applicant behaved unreasonably in failing to have accepted his offer until the trial was almost over. As I have already noted, however, there are many reasons for compromise to be made and offers to be accepted, even where they had been outstanding for a considerable length of time.

[25] The respondent could have provided that the offers would be rescinded at a specific time, for example, on the commencement of trial. He could have inserted cost consequences so that, had the offers not been accepted by a certain date, certain costs would be payable if acceptance happened later. The same could be said for the Applicant.

Conclusion:

[26] Both parties made offers to settle. Both parties accepted offers to settle. Success cannot be assumed on the part of either party by virtue of the offers. No decision was made on the merits. The timing of the acceptance of the offers is not indicative of bad faith or unreasonable conduct. The costs claimed by the parties was relatively similar.

[27] Therefore, there will be no order as to costs.

Reid J.

Date: July 30, 2019