This case addresses whether or not costs should be awarded after a motion that did not proceed and resolved by way of Minutes of Settlement. It additionally addresses what factors the court should consider when awarding costs is such a circumstance.
The wife brought a motion seeking exclusive possession of the matrimonial home and other relief. The parties engaged in lengthy negotiations, and they entered into a temporary consent order. The motion did not proceed. The only issue left unresolved between them was that of costs. The parties made cost submissions, each seeking an award of costs.
The court began its assessment with Rule 24 of the Family Law Rules, which states in Rule 24(1) that there is a presumption that a successful party is entitled to costs of a motion, enforcement case or appeal. Rule 24(5) goes on to say that in deciding whether a party has behaved reasonably or unreasonably, the court shall examine:
- The party’s behavior in relation to the issues from the time they arose, including whether the party made an offer to settle.
- The reasonableness of any offer the party made.
- Any offer the party withdrew or failed to accept.
Finally, Rule 24(6) states that if success in a step in a case is divided, the court may apportion costs as appropriate. The case law considered by the court indicated that costs may still be awarded even when parties sign a settlement agreement, however, courts should be slow to make an award of costs against one of the parties unless there are compelling reasons to do so.
The judge reviewed the reasons provided by the parties for costs and found that there was no clear “winner” requiring an award of costs to a party who capitulated at the last minute. The court additionally made note that neither party’s behavior rose to the level of unreasonableness. Based on these two factors, the court found that there was no compelling reason to make a cost award.
Ultimately, the judge found that each party was responsible for their own costs, and did not make an order for costs against either party.
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