R é millard v. R é millard., 2015 MBCA 42

Citation: R é millard v. R é millard., 2015 MBCA 42 Date: 20150504 Docket: AF 13-30-08019 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN : ) G. J. Orle, Q.C. PAUL VICTOR JOSEPH RÉMILLARD ) for the Appellant ) (Petitioner) Respondent ) A. L.

Bennet ) for the Respondent ) - and - ) Appeals heard: ) June 2, 2014 ) ) Judgment delivered: CANDACE ADELE RÉMILLARD ) November 6, 2014 ) ) Supplemental reasons (Respondent) Appellant ) delivered: ) May 4, 2015 HAMILTON J.A. [ 1 ] These reasons are supplementary to this court’s decision (the primary decision) in R é millard v. R é millard , 2014 MBCA 101 , 310 Man.R. (2d) 204, and should be read in conjunction with it.

Defined words used in the primary decision are used in these reasons. [ 2 ] In the primary decision, the court allowed the mother’s appeal, resulting in an increase in the awards of child support and spousal support, including retroactive spousal support. The court dismissed the father’s cross appeal of the trial judge’s award of retroactive spousal support.

Given the outcome of the appeals, we provided counsel an opportunity to make further written submissions with respect to the mother’s appeal of the trial judge’s award of double costs against her in the amount of $86,023.36. [ 3 ] Since the release of the primary decision on November 6, 2014, counsel provided their written submissions with respect to the mother’s appeal of costs, the father filed a motion for a rehearing of the appeal on December 23, 2014, and a certificate of decision was signed and entered on December 24, 2014. [ 4 ] Because counsel could not agree on the wording of the certificate of decision, and the father desired to have it signed before the end of 2014 in light of certain requirements under the Income Tax Act with respect to the deductibility of spousal support payments, a member of this panel met with counsel to finalize the wording.

The certificate of decision includes the following wording with respect to the issue of costs and the father’s motion for a rehearing: ... the issue of costs in the Court of Queen’s Bench is adjourned for further determination by this Court. ... [the father] is granted leave to bring a motion for a rehearing, and if the motion is granted, the issue of quantum of retroactive spousal support and/or credits, as the case may be, taking into consideration the tax consequences of the payments is reviewable at the rehearing. [ 5 ] I will address the father’s motion for a rehearing and then the outstanding costs issue.

The Father’s Motion for a Rehearing The Law [6] Court of Appeal Rule 46.2, Man. Reg. 555/88R, sets out the rules with respect to seeking a rehearing of an appeal.

Itreads, in part, as follows: Rehearing 46.2(1) There shall be no rehearing of an appeal except by order of the court or at the instance of the court. 46.2(2) A rehearing of an appeal may be ordered before the certificate of decision has been entered. 46.2(3) A motion requesting a rehearing shall be in writing stating the grounds for the motion, supported by a memorandum of argument. 46.2(4) If the reasons for judgment have been delivered, the motion requesting a rehearing under subrule (3) shall be made within 30days after the reasons for judgment have been delivered, or such further time as the court may order, but in any event before thecertificate of decision has been entered. . . . . . 46.2(6) Within 15 days after service of the motion and memorandum of argument, the other parties to the appeal may file and serve amemorandum of argument in writing in response to the motion. . . . . . 46.2(8) All submissions shall enumerate briefly and concisely the grounds upon which the motion is based or opposed. 46.2(9) There shall be no oral argument on the motion requesting a rehearing unless by direction of the court. 46.2(10) Unless otherwise ordered by the court, costs awarded on a motion requesting a rehearing shall be taxed as for a motion before the court. [emphasis added] [7] The fundamental principle of finality of litigation is in the public interest.

Its aim is to minimize costs and delay oflitigation and protect how judicial resources are used. See Tsaoussis v. Baetz (1998), (ON CA), 112 O.A.C. 78 atparas. 15-21, leave to appeal to S.C.C. ref’d, [1999] S.C.C.A. No. 518 (QL); Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 atparas. 18-20, [2001] 2 S.C.R. 460; Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125, in whichLeBel and Abella JJ. comment at length on the principle in their dissenting judgment; and Loewen v.

The Manitoba Teachers’ Society,2015 MBCA 13 at paras. 30-33, 111. [8] The principle of finality of litigation has shaped the development of the law with respect to when rehearings may bepermitted and must be a crucial consideration for a court when considering a motion for rehearing. See Willman v. Ducks Unlimited(Canada), 2005 MBCA 13, 192 Man.R. (2d) 39; and Child and Family Services of Winnipeg v. J.A. et al., 2005 MBCA 26, 192 Man.R.(2d) 76.

As a result, the rehearing of an appeal is to be “granted only in exceptional circumstances, where the interests of justicemanifestly compel such a course of action” (Willman at para. 9). [9] In Willman, while acknowledging other circumstances may satisfy the exceptional threshold, Freedman J.A. cited threecircumstances that would be recognized as exceptional (at para. 10):

.... 1) there is a patent error on a material point on the face of the reasons; 2) the appeal was decided on a point of law that counsel had no opportunity to address, and which point could not have reasonably been foreseen and dealt with at the hearing; or 3) the court has clearly overlooked or misapprehended the evidence or the law in a significant respect and there is a consequential serious risk of miscarriage of justice. The Father’s Position [ 10 ] In his notice of motion, the father seeks a rehearing “of the Appeal of the Final Order pronounced by the [trial judge]”.

His supporting memorandum of argument is more specific and relies on the first and third circumstances as described in Willman . It states: It is submitted that there was either a patent error on a material point, or this Honourable Court overlooked or misapprehended the evidence or the law with regard to the lack of tax deductibility associated with the payments made by the [father].

It would be a serious consequential risk of miscarriage of justice if the matter were not addressed. [ 11 ] He focusses on the following commentary in the primary decision (at paras. 23, 143): The trial judge held that the mother was entitled to support from the date of separation and that the father’s third-party payments from the date of separation should be taken into account in assessing the spousal support award. .... To summarize, the mother is entitled to monthly spousal support in the amount of $4,000 monthly from the date of separation until March 30, 2011, and thereafter in the amount of $3,000.

I leave it to the parties to calculate retroactive spousal support. Such calculation will have to include a credit for the expenses paid by the father to third parties that benefitted the mother, as presented at trial by the father. [ 12 ] The father asserts that in awarding retroactive spousal support, this court did not take into account the income tax ramifications of that award. In particular, he argues that he will not be able to receive an income tax deduction for the monthly amounts attributed to the years 2010, 2011 and 2012 because they were not made in the year the order was made or the preceding year.

He says that the trial judge took income tax considerations into account in arriving at her award of retroactive spousal support and prospective support. He seeks to have this court revise its decision by grossing up the credit for the third-party payments or lowering the spousal support award for the relevant years.

The Mother’s Position [ 13 ] The mother argues that the father has not demonstrated any exceptional circumstance to warrant a rehearing of the issue of retroactive spousal support. [ 14 ] Relying on the wording of the Court of Appeal Rules 46.2(2) and (4), she also questions whether this court has the jurisdiction to consider the father’s motion because the certificate of decision has been signed and entered. I am satisfied that it is appropriate for this panel to consider the father’s motion for two reasons.

First, the notice of motion was filed one day prior to the signing and entry of the certificate of decision. Second, the certificate of decision granted leave to the father to bring the motion for a rehearing. Decision [ 15 ] The parties filed written memoranda of argument as permitted by Court of Appeal Rule 46.2. I am satisfied that an oral hearing is not necessary to decide the father’s motion. [ 16 ] I would not grant the father’s motion for a rehearing.

He has not persuaded me that exceptional circumstances exist to warrant this court rehearing the appeal with respect to the issue of retroactive spousal support for three reasons. [ 17 ] First, he has not identified a patent error on a material point on the face of the primary reasons.

[18] Second, although not specifically argued, I think it important to note that the appeal was not decided “on a point of lawthat counsel had no opportunity to address, and which point could not have reasonably been foreseen and dealt with at the hearing”(Willman at para. 10). Therefore, the point the father wishes to now argue cannot be said to have been misapprehended. [19] The tax deductibility of spousal support payments was not a material point at issue on the appeal. The fundamentalissue was the mother’s entitlement to spousal support and the quantum of spousal support.

While there were tax deductibility referencesin the trial record and the trial judge’s reasons, the specific point of tax deductibility that the father wishes to argue at a rehearing wasnot addressed at the appeal, either in the facta or the oral arguments. The effect of making the retroactive spousal support payments taxdeductible is complex due to the parties’ different personal and financial circumstances and, argument in this regard should have beenmade if the father wished it to be addressed.

The point that the father wishes to raise now was reasonably foreseeable, particularly giventhat the mother was seeking, on appeal, spousal support based on the SSAG retroactive to the date of separation. The father focussed onthe ground of cross appeal that the trial judge erred in awarding any retroactive spousal support, given the third-party payments he hadmade between the date of separation and the date of the trial judge’s order of spousal support.

These payments were not tax deductible,as noted in the primary reasons (see para. 15). [20] Third, even if there was an error because the point the father wishes to raise now was overlooked, I am of the view that,in the context of the issues on appeal, it was neither significant in nature nor does it result in a consequential risk of a miscarriage ofjustice. A miscarriage of justice is hard to define. In the often cited Robins v. National Trust Co., Ltd., (UK JCPC),[1927] All E.R.

Rep. 73, Viscount Dunedin explained it as follows (at p. 73): …. … [S]uch a departure from the rules which permeate all judicial procedure as to make that which happened not, in the proper use ofthe word, judicial procedure at all. … [S]o based on an erroneous proposition of law … that, if that proposition be corrected, the findingdisappears, then it is no finding at all. [21] As explained by Huddart J.A. in Lin v. Tang et al. (1997), (BC CA), 93 B.C.A.C. 57, citing Robins(at para. 64): … [M]iscarriage of justice means that which is not justice according to law.

A miscarriage of justice will almost always be procedural. The blemish must be such as to make the judicial procedure at issue not a judicial procedure at all: Robins v. National Trust Co., (UK JCPC), [1927] 2 D.L.R. 97 (P.C.), affing (1925), 57 O.L.R. 46 (C.A.). …. [22] In my view, miscarriage of justice connotes a result that is perverse and fundamentally wrong.

The award of monthlyretroactive spousal support in favour of the mother to the date of the separation was neither perverse nor fundamentally wrong, nor did it“make the judicial procedure at issue not a judicial procedure at all.” [23] The father’s real argument is that the court erred in how it approached and calculated retroactive spousal support. Asexplained by Steel J.A. in Child and Family Services of Winnipeg, more than an alleged error is necessary for the court to grant arehearing (at para. 6): There must be something more than an argument that the decision may be legally incorrect.

There are many decisions of this courtwhere there is a dissenting judgment that takes a contrary view as to the evidence or the law. If nothing more was required, eachdecision on appeal would be open to a rehearing and the fundamental principle of finality of litigation would be seriously undermined.

There must, in addition, be some special or unusual circumstance justifying a rehearing .... [24] For these reasons, I am of the view that the father has not met the high threshold for a rehearing as he has notdemonstrated exceptional circumstances that are necessary to overcome the fundamental principle of finality of litigation. [25] I would dismiss the father’s motion for a rehearing. The Mother’s Appeal with respect to Costs [26] An appeal decision stands in the place of the trial decision appealed from. See Julien D. Payne & Marilyn A.

Payne,Child Support Guidelines in Canada, 2012 (Toronto: Irwin Law Inc., 2012) at p. 579. Therefore, the primary decision takes effect fromthe date of the trial judge’s final order, and the mother’s success on appeal translates to success at trial. [27] The mother asserts that this success entitles her to have the costs award at trial reversed in her favour. Notwithstandingthe mother’s success, the father asserts that his offers to settle and the mother’s conduct disentitle her to costs and entitle him to doublecosts.

The Queen’s Bench Act and the Queen’s Bench Rules (QB Rules) [28] Costs are within the discretion of the court. See s. 96(1) of The Court of Queen’s Bench Act, C.C.S.M., c. C280 (the QBAct):

Costs 96(1) Subject to the provisions of

an Act or the rules, the costs of or incidental to, a proceeding, or a step in a proceeding, are in the discretion of the court and the court shall determine liability for costs and the amount of the costs or the manner in which the costs shall be assessed. [ 29 ] Queen’s Bench Rule 57, Man.Reg 553/88 , is the general rule regarding costs which sets out factors the court may consider in addition to the result and any written offer to settle. The relevant portions state: Factors in discretion 57.01(1) In exercising its discretion under

section 96 of The Court of Queen’s Bench Act , to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle made in writing , (

a) the amount claimed and the amount recovered in the proceeding; (

b) the complexity of the proceeding; (

c) the importance of the issues; (

d) the conduct of any party which tended to shorten or lengthen unnecessarily the duration of the proceeding; (

e) whether any step in the proceeding was improper, vexatious or unnecessary; (

f) a party’s denial or refusal to admit anything which should have been admitted; (

g) whether it is appropriate to award any costs or more than one set of costs where there are several parties with identical interests who are unnecessarily represented by more than one counsel; and (

h) any other matter relevant to the question of costs. Costs against successful party 57.01(2) The fact that a party is successful in a proceeding or a step in a proceeding does not prevent the court from awarding costs against the party in a proper case. . . . . . Authority of court 57.01(6) Nothing in this Rule affects the authority of the court, (

a) to award or refuse costs in respect of a particular issue or part of a proceeding; (

b) to award a percentage of assessed costs or award assessed costs up to or from a particular stage of a proceeding; or

(

c) to award all or part of the costs on a lawyer and client basis. [emphasis added] [ 30 ] Queen’s Bench Rule 49 specifically addresses the impact of offers to settle on costs awards in certain situations. The pertinent provisions of QB Rule 49 read as follows: WHERE AVAILABLE Offer 49.02(1) A party to a proceeding may make an offer to settle any one or more of the claims in the proceeding by serving on any other party an offer to settle on specified terms (Form 49A). . . . . . TIME FOR MAKING OFFER 49.03 An offer to settle may be made at any time, but where (

a) an offer to settle relating to a motion is made less than three days before the hearing of the motion commences; or (

b) an offer to settle relating to a proceeding is made less than seven days before the hearing of the proceeding commences; the cost consequences referred to in rule 49.10 do not apply. . . . . . COST CONSEQUENCES OF FAILURE TO ACCEPT OFFER Plaintiff’s offer not accepted 49.10(1) Where (

a) an offer to settle (

i) that relates to a motion is made by a plaintiff at least three days before the commencement of the hearing, or (ii) that relates to a proceeding is made by a plaintiff at least seven days before the commencement of the hearing; (

b) the offer to settle is not withdrawn and does not expire before the commencement of the hearing;

(

c) the offer to settle is not accepted by the defendant; and (

d) the plaintiff obtains a judgment or order as favourable as or more favourable than the terms of the offer to settle ; the plaintiff is entitled to party and party costs to the date the offer to settle was served and double the party and party costs from that date, unless the court orders otherwise. Defendant’s offer not accepted 49.10(2) Where (

a) an offer to settle (

i) that relates to a motion is made by a defendant at least three days before the commencement of the hearing, or (ii) that relates to a proceeding is made by a defendant at least seven days before the commencement of the hearing; (

b) the offer to settle is not withdrawn and does not expire before the commencement of the hearing; (

c) the offer to settle is not accepted by the plaintiff; and (

d) the plaintiff obtains a judgment or order as favourable as or less favourable than the terms of the offer to settle; the plaintiff is entitled to party and party costs to the date the offer to settle was served and the defendant is entitled to party and party costs from that date, unless the court orders otherwise. . . . . .

DISCRETION OF COURT 49.13 Notwithstanding rules 49.03, 49.10 and 49.11 [which address proceedings involving multiple defendants], the court, in exercising its discretion with respect to costs, may take into account any offer to settle made in writing, the date the offer was made and the terms of the offer. [emphasis added] [ 31 ] For the purposes of QB Rule 49, “defendant” and “plaintiff” are defined as follows: 49.01 In this Rule,

“defendant” includes a respondent and a responding party; “plaintiff” includes an applicant and a moving party. [ 32 ] As well, QB Rule 1.03 defines certain terms: . . . . . “action” means a civil proceeding, other than an application, that is commenced in the court by, …. (

e) a petition; . . . . . “court” means the Court of Queen's Bench of Manitoba or any division thereof and includes a judge and a master; “defendant” means a person against whom an action is commenced; . . . . . “plaintiff” means a person who commences an action; . . . . . “proceeding” means an action or application; . . . . . “respondent” means a person against whom an application is made or an appeal or petition is brought, as the circumstances require. . . . . .

The Father’s Offers to Settle [ 33 ] The father made three offers to settle: October 12, 2011, February 12, 2013 (the February Offer), and March 15, 2013 (the March Offer). [ 34 ] The 11-day trial commenced on March 18, 2013. [ 35 ] In her costs decision, the trial judge indicated that the father had made “extremely generous” offers to settle, pursuant to QB Rule 49, dating back to October 2011. [ 36 ] The father acknowledges that the offer to settle made in October 2011 was less favourable than what was awarded on appeal. [ 37 ] In the February Offer, the father offered to pay the mother:

1. Ongoing monthly spousal support of $3,000 commencing January 1, 2013, reviewable after two years (May 1, 2015). 2. Retroactive spousal support of $22,500 lump sum or $1,167 monthly over 36 months, provided the payments are tax deductible to the father. 3. Child support in accordance with the Guidelines based on his annual income. 4.

Each party to bear their own costs until February 11, 2013, and the mother to be responsible for costs of the examination for discovery and all steps thereafter in accordance with the Court of Queen’s Bench tariff. [ 38 ] The March Offer was the same as the February Offer except that the father offered to pay the mother ongoing monthly spousal support of $3,250 commencing January 1, 2013, reviewable after four years (May 1, 2017).

The Father’s Position [ 39 ] The father asserts that each of the February Offer and the March Offer is more favourable than what was awarded on appeal and, therefore, he is entitled to double costs under QB Rule 49.10 for the trial and the appeal. Furthermore, he relies on the trial judge’s alternate discretionary ruling under QB Rule 57 and, in particular, the following findings of fact with respect to the mother’s conduct: ... [H]er conduct unnecessarily lengthened the proceedings. We went through days of trial where both parties ... gave evidence about when she became involved in another relationship.

Of course, that was very relevant because it was relevant to the issue of spousal support. It is uncontroverted that [the mother] lied about her relationship with [D.R.] right up until the examinations for discovery. …. During the proceedings leading up to trial, she didn’t respond to things. There was extensive evidence of her lack of response, of [the father’s] attempt to move things along. Her lack of response to these attempts, obviously resulted in more cost to [the father] .... ....

Examinations for discovery were longer than necessary because she had to be cross-examined about [D.R]. [There were] extra days of trial to go through her expenses that were as she admitted, at trial, were stated as double sometimes what she was actually spending. ….

I don’t understand the lack of disclosure to matters that were clearly relevant. …. ... [I]n all my time as a judge, I have to say that the misrepresentations put before me here that were so easily disproven, are amongst the most egregious I’ve encountered. [ 40 ] With respect to the last finding, the trial judge had found that the mother claimed in her pleadings for compensation for renovation to the home related to E.’s needs that had not been done and that she had lied about her involvement with the family-managed homecare program and her termination from that program.

The Mother’s Position [ 41 ] The mother submits that she is entitled to costs at the trial level based on Tariff 4, given her success on every issue at trial: imputing income to her, the quantum of child support, retroactive child support, spousal support, retroactive spousal support and the termination date of spousal support. Using the same items as claimed in the father’s bill of costs submitted at trial, she says that she is entitled to costs in the amount of $41,507.19. [ 42 ] She also seeks an order requiring the father to repay her the double costs that she has already paid to him.

She asks that this repayment be made forthwith, given that the father refused to agree to a stay, pending her appeal of the collection proceedings of the costs award that he had commenced. As a result, she says that she was required to remortgage her house to pay the costs.

She argues that this was unreasonable and prejudicial even though t he trial judge also refused the mother a stay of the costs award, pending the appeal. [ 43 ] The mother argues that none of the father’s offers to settle were of such a nature that they ought to have been accepted or considered by her and that, given the awards in the primary decision, the father is not entitled to the double costs award either under QB Rule 49 or as an exercise of reasonable discretion pursuant to QB Rule 57. [ 44 ] She asserts that the length of the trial and the conduct of the trial cannot be attributed to her or her counsel.

She says that the trial itself took eight days; arguments and reply to argument and the delivery of the decision took two of those eight days; her counsel took a day and one-half to cross-examine the father and directly examine her and D.R.; the father’s counsel took two days for direct and redirect of the father and one and one-half days to cross-examine her; and the evidence called by the father from the WRHA took one full day and was entirely directed to imputing income to her. Decision [ 45 ] A trial judge has broad discretion when assessing costs.

Normally, that discretion calls for this court to show deference to the trial judge’s award of costs unless there has been an error in principle, a palpable and overriding error of fact or the award is plainly wrong. See Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue) , 2007 SCC 2 at paras. 48-

49, [2007] 1. S.C.R. 38; Sun Indalex Finance, LLC v. United Steelworkers, 2013 SCC 6 at para. 247, [2013] 1 S.C.R. 271; Ducharme v.Borden, 2014 MBCA 5 at paras. 23-24, 303 Man.R. (2d) 81; and Judges of the Provincial Court (Man.) v. Manitoba et al., 2013 MBCA74 at para. 164, 294 Man.R. (2d) 273. [46] However, when a party is successful on appeal, the appeal court considers the question of costs at trial by undertaking afresh assessment, subject to showing deference to findings of fact with respect to the parties’ conduct.

These findings are entitled todeference unless an error is demonstrated or they are no longer applicable because of this court’s decision. [47] Usually the success on appeal will reverse the order of costs for trial, unless there is a reason not to award costs based onsuccess. Here, the father argues that the mother’s conduct, as found by the trial judge, and the February Offer and the March Offer arereasons not to award the mother costs of the trial.

He also argues that the double costs award in his favour should not be overturnedgiven the application of QB Rule 49 and the factors to be considered under QB Rule 57. Queen’s Bench Rule 49 [48] Queen’s Bench Rule 70 is the principal rule governing family proceedings. QB Rule 70.02 states that the QB Rulesapply to family proceedings except where QB Rule 70 provides otherwise. Nothing in QB Rules 49 or 70 precludes or restricts theapplication of QB Rule 49 to family proceedings.

The application of QB Rule 49 to family proceedings is reinforced by the fact that thedefinitions set out previously in these reasons indicate that a “petition,” which is a form of initiating document to commence proceedingsin the Court of Queen’s Bench (Family Division) (the family division), commences an action for the purposes of the application of QBRule 49. The family division has consistently applied QB Rule 49 in its determination of the appropriate level of costs. (See Hauff v.Hauff (1994), (MB CA), 95 Man.R. (2d) 83 at para. 14 (C.A.); Williams v.

Downey-Waterbury (1995), (MB CA), 100 Man.R. (2d) 194 at para. 5 (C.A.), leave to appeal to S.C.C. ref’d, [1995] S.C.C.A. No. 217 (QL); and Stewart v.Stewart, 2007 MBCA 66, 214 Man.R. (2d) 199.) [49] The strict application of QB Rule 49 can be problematic in family proceedings, given the narrow definition of plaintiffand defendant and the nature of the issues before the court.

In this case, for the purposes of QB Rule 49, the father is the “plaintiff”because he commenced the action by filing the petition for divorce, and the mother is the “defendant,” although she was the partyseeking child and spousal support. [50] The double cost consequences under QB Rule 49.10 apply only in specific situations. As a result, there are two reasonswhy the father cannot rely on QB Rule 49.10. [51] First, the double cost consequences arise only where “the plaintiff obtains a judgment ... as favourable as or morefavourable than the terms of the offer to settle” (at QB Rule 49.10(1)(d)).

The father, as the plaintiff, did not obtain such a judgment. His position is that he is entitled to double costs because the February Offer and the March Offer were as or more favourable than thejudgment. Furthermore, as I explain later, neither offer met that threshold. [52] Second, for an offer to settle to have double cost ramifications pursuant to QB Rule 49.10, it must be served at leastseven days before the proceeding commences. The March Offer is dated March 15, 2013, which is three days before the commencementof the trial.

Therefore, it cannot be considered for the purposes of double costs under Rule 49.10. [53] I would be remiss if I did not mention this court’s decision in Mellway v. Mellway, 2004 MBCA 119, 187 Man.R. (2d)247, which concluded, with respect to a claim for double costs under QB Rule 49.10, that “[e]ven though the wife made more than oneoffer, it is only the last one that is to be considered in evaluating whether the offer was more favourable to the husband than the trialdecision” (at para. 56).

Given that my first reason applies to both the February Offer and the March Offer, I need not address the impactof Mellway on whether it would have been open to the court to consider the February Offer under QB Rule 49.10, given the March Offerwas not one that fell under QB Rule 49.10.

Given that QB Rule 49.10 does not state that only the last offer may be considered and,because it seems contrary to the rule’s purpose to encourage settlements, I leave it for another day to address the ruling in Mellway whenthere is a proper request to do so. [54] The February Offer and the March Offer remain relevant considerations for the court in the exercise of its discretion inlight of QB Rules 49.13 and 57, both of which specifically refer to the court considering written offers to settle.

As explained in Mark M.Orkin, The Law of Costs, 2d ed. (Toronto: Thomson Reuters Canada Limited, 2014) (loose-leaf updated 2014, release 49), ch. 2 at§214.6: “The court in its discretion may take late offers into account.” Also see Andrews v.

Andrews (1999), (ONCA), 124 O.A.C. 259 at paras. 39-40. [55] Furthermore, I am of the view that the intent of the legislature to encourage settlement by imposing double costspursuant to QB Rule 49.10 in certain situations remains a relevant consideration in the exercise of the court’s discretion. [56] Therefore, one of the questions to be addressed for the purpose of exercising discretion under QB Rule 57, is whetherthe February Offer and the March Offer were “as favourable as or more favourable” than the judgment arising from the primarydecision, as argued by the father.

As I will explain, I am of the view that neither the February Offer nor the March Offer meets thatthreshold. [57] With respect to prospective spousal support, the father used the commencement date of January 1, 2013, in the FebruaryOffer, and offered to pay $3,000 per month, reviewable after May 1, 2015. For ease of comparison, using the commencement date ofJanuary 1, 2013, this court ordered monthly spousal support of $3,000, reviewable in five years (that is, after April 16, 2019).

Therefore,with respect to the spousal support commencing January 1, 2013, the monthly amount awarded is identical to the amount offered in theFebruary Offer. However, the reviewability provision in the February Offer is less favourable than the five-year review ordered by thiscourt. [58] The remaining period of time to be assessed pertains to the retroactive spousal support and is for the period from thedate of separation to December 31, 2012, a period of 31 months. The father offered to pay retroactive spousal support of $22,500 lump

sum or $1,167 per month over 36 months ($42,012 in total), provided same is tax deductible to the father. This payment was over and above the third-party payments the father made in the amount of $32,652. [ 59 ] For this same period, this court found that the mother was entitled to retroactive spousal support based on monthly spousal support of $4,000 from June 3, 2010, the date of separation, until March 30, 2011, and thereafter until December 31, 2012, $3,000 per month. Therefore, there are 10 months at $4,000 ($40,000) and 21 months at $3,000 (totalling $63,000).

From the combined total of $103,000, the father received a credit for the third-party payments he made in 2010, 2011 and 2012 in the amount $32,652. The effect is a net retroactive support award of $70,348. [ 60 ] In the father’s written memorandum of argument, he grosses up the value of the $32,652 to $60,918, based on a tax rate of 46.4 per cent because the father’s “ability to obtain the tax deduction has passed.” I am not persuaded that this calculation reflects the realities of what occurred, which is the father’s decision to make direct payments to third parties that were not tax-deductible.

Thus, I am of the view that the best comparator is the lump sums. The father’s offer of $22,500 is less favourable than the effect of this court’s ruling with respect to retroactive spousal support. [ 61 ] The February Offer was a global offer and not three separate offers with respect to child support, retroactive spousal support and prospective spousal support.

Taken as a whole, and given the difference in retroactive support awarded and the reviewability date for spousal support, the February Offer was not as favourable or more favourable than what this court awarded in the primary decision. [ 62 ] As well, the March Offer, which was also a global offer, was not as favourable or more favourable, given the father’s offer with respect to retroactive spousal support (which was the same as the February Offer) and the review provision was for four years, not five years, as ordered by this court. [ 63 ] Nonetheless, I am of the view that the March Offer was a very good offer that deserved serious consideration by the mother in the face of the cost of going to trial.

As a result, the reasonableness of the March Offer is an important factor in assessing the mother’s real success and in the exercise of the court’s discretion under QB Rule 57. Queen’s Bench Rule 57 [ 64 ] The wording of QB Rules 49.13 and 57 make it clear that the result of the proceeding and offers to settle are the primary considerations when exercising discretion to determine costs, albeit not the only considerations.

As stated in The Law of Costs , the “[t]wo paramount factors to be considered by the court in exercising its discretion to award costs are the result in the proceeding and any offer to settle made in writing” (at § 214.1). [ 65 ] In the context of discussing the meaning of success in family proceedings, authors Mary Jo Maur, Nicholas Bala & Graeme Adams, in their

article “ Re-thinking Costs in Ontario Family Cases: Encouraging Parties to ‘Move Forward ’” (2014) 33: CFLQ 173, note that the trend in Ontario with respect to family law matters is that success is “not to be determined by the outcome of the litigated case, but rather entitlement for the entire process is to be determined by how close each party’s final settlement offer was to the eventual judicial decision” (at p. 197).

They point out that there is only a presumption that a successful party is entitled to costs (see Ontario Rule 24(1), O.Reg. 114/99 ) and explain the purpose of awarding costs, particularly in family law cases (pp. 174-75): Traditionally, the primary purpose of a costs order in civil proceedings has been to compensate the successful party, who has been put to the expense of vindicating his or her rights by the other party. ….

It is now generally accepted in Ontario that costs in family law cases serve somewhat broader purposes than cost awards … in other civil proceedings . [emphasis added] [ 66 ] I note that the Ontario rules contain a rule very similar to QB Rule 49 in both their general rules and in their rules with respect to family proceedings. [ 67 ] In Serra v.

Serra , 2009 ONCA 395 , 66 R.F.L. (6th) 40 , the Ontario Court of Appeal succinctly, and aptly in my view, explained the three fundamental purposes of the modern costs rules (at para. 8): … (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants …. [ 68 ] Here, the key considerations for the assessment of costs are the mother’s success on appeal, the March Offer and the trial judge’s findings of fact with respect to the mother’s conduct.

In other words, the mother’s entitlement to costs that presumptively arises from her success must be assessed in the context of the reasonableness of the March Offer and the negative findings of the trial

judge with respect to her conduct. [ 69 ] In addition to the trial judge’s findings that the mother misled the court, the trial judge was also very critical of the mother with respect to her refusal to acknowledge the date when D.R. came to live with her. This finding is entitled to deference. Trial time was wasted calling evidence to establish this. [ 70 ] On the other hand, some aspects of the trial judge’s analysis of the use of court time must now be considered in light of the result in the primary decision. The trial lasted 11 days.

The father’s unsuccessful positions with respect to his s. 4 application under the Guidelines, and his position that income should be imputed to the mother and she should become self-sufficient, took up a good part of the trial. As a result, the trial judge’s finding that the mother’s conduct lengthened the trial must be viewed in light of the father’s lack of success in this regard. [ 71 ] In my view, the reasonableness of the March Offer and the findings of misconduct, disentitle the mother to her costs, notwithstanding her success.

However, given her success, I am not persuaded that the father is entitled to double costs, or any costs at all. Therefore, I would order that each party bear their own costs of trial. [ 72 ] That does not end the matter of costs. The mother has paid the double costs award ordered by the trial judge, which required her to remortgage her house to pay it. She is entitled to repayment of the costs paid. See Goulding v. Keck , 2014 ABCA 293 at para. 3 , 580 A.R. 352 . She seeks repayment forthwith.

The father had security for the payment registered against the mother’s house and nonetheless, demanded immediate payment knowing that the award of costs, which was unusually high, was being appealed. I would order that he repay these costs no later than June 4, 2015. Conclusion [ 73 ] I would dismiss the father’s motion for a rehearing and I would order costs for that motion in favour of the mother in accordance with the applicable tariff. [ 74 ] I would allow the appeal of the trial judge’s order of double costs against the mother and would order that each party pay their own costs of trial.

As a result, I would not order costs against either party with respect to the further written briefs submitted on the appeal in regard to costs. I would order that the father repay the costs paid by the mother to the father no later than June 4, 2015. I would not disturb the decision in the primary decision that the mother shall have her costs of the appeal, as argued by the father. J.A. I agree: J.A. I agree: J.A.