NEWFOUNDLAND AND LABRADOR REGULATION 26/15

1. (1) Rule 20A.08(3)(b) of the Rules of the Supreme Court, 1986 is repealed and the following substituted:

(b) an application for a determination as to costs based on the application of Rule 20A is made by a party within 15 days following the filing or delivery of the decision or order

(2) Rule 20A.08(6) of the rules is repealed.

2. Rule 56A.26 of the rules is repealed and the following substituted:

Costs-general

56A.26. (1) The purpose of this Rule is to encourage parties to take a position towards the resolution of matters in a family law proceeding, which position includes a reasonable element of compromise.

(2) The Court has the right to decide whether a party will have to pay the costs of another party.

(3) There is a presumption that a successful party is entitled to the costs of a family law proceeding.

(4) Notwithstanding the presumption in rule 56A.26(3), in matters of custody and access, the Court has the discretion to reduce or decline an award of costs to a successful party if the court determines that the positions of both parties throughout the family law proceeding were reasonable, held in good faith and in the best interests of the child.

(5) A party, whether successful or unsuccessful, who has behaved unreasonably or has acted in bad faith during a family law proceeding

(a) may be deprived of all or part of the party's own costs, or

(b) may be ordered to pay all or part of the other party's costs.

(6) When deciding whether a party has behaved reasonably, unreasonably or in bad faith, the Court may consider:

(a) the party's behaviour in relation to the nature, importance and urgency of the issues;

(b) any conduct of the party which unnecessarily delays the proceeding or unnecessarily increases the expense of the proceeding;

(d) whether any step taken by the party in the proceeding was frivolous, improper, vexatious or unnecessary;

(e) the party's denial or refusal to admit anything that should have been admitted;

(f) whether the party made an offer to settle;

(g) the reasonableness of any offer to settle the party made; and

(h) any offer to settle the party withdrew or failed to accept.

(7) The Court may order costs against a party if the party, without reasonable excuse

(a) does not appear at a step in the family law proceeding,

(b) appears but is not properly prepared to deal with the issues at that step, or

(8) If success in a step in a family law proceeding is divided, the court may apportion costs as is appropriate.

(9) The court may make an order at any time during a family law proceeding that a party pay a fixed sum of money to another party in lieu of taxed costs.

(10) In determining whether to make an order pursuant to rule 56A.26(9), the court shall consider:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party's behaviour in the family law proceeding;

(d) the time properly spent on the family law proceeding, including

(i) discussions between the parties, their lawyers and any witnesses;

(ii) drafting documents;

(iii) attempting to settle the matter; preparing for and attending any application or hearing; and

(iv) preparing any order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

(11) A judge may, on application, make an order for security for costs in relation to a proceeding, other than a proceeding for custody or access, that is just, based on one or more of the following factors:

(a) a party ordinarily resides outside Newfoundland and Labrador;

(b) a party has an order against the other party for costs that remains unpaid, in the same matter or another matter;

(c) a party is a corporation and there is good reason to believe it does not have enough assets in Newfoundland and Labrador to pay costs;

(d) there is good reason to believe that the case is frivolous, improper, vexatious or unnecessary and that the party does not have enough assets in Newfoundland and Labrador to pay costs;

(e) a party has or is attempting to dispose of, hide or waste assets which are the subject of the family law proceeding; or

(f) any other relevant matter.

(12) The judge shall determine the amount of the security, its form and the method of giving it.

(13) Until the security has been given, a party against whom there is an order for security for costs may not take any step in the case, except to appeal from the order, unless a judge orders otherwise.

(14) If a party does not provide security for costs as ordered, a judge may, upon application, make an order

(a) dismissing the party's case,

(b) striking out the party's pleadings or any other document filed by the party,

(d) providing such other relief as the court deems appropriate.

(15) The amount of the security, its form and the method of giving it may be changed by order at any time.

(16) Security given for costs may be paid out or released on an order of the Court.

3. The rules are amended by adding immediately after Rule 56A.26 the following rule:

Costs - where offer to settle

56A.26A. (1) A party may make an offer to settle one or more claims in a family law proceeding including a claim relating to custody, access, child support, spousal support, partner support, parental support, division of matrimonial property or division of property of common law spouses, by delivering an offer to settle in Form 56A.26A(A) to any other party.

(2) An offer to settle may be delivered to any other party at any time after the commencement of a family law proceeding.

(3) An offer to settle shall be signed by the party making the offer to settle or the solicitor of record acting on behalf of the party making the offer to settle.

(4) A party who made an offer to settle may withdraw it by delivering a notice of withdrawal in Form 56A.26A(B) to the other party or their solicitor of record, if the party is represented, at any time before the offer to settle is accepted.

(5) An offer to settle that is not accepted within the time set out in the offer to settle is deemed to be rejected by the other party.

(6) An offer to settle shall be made without prejudice, and shall not be taken as an admission of any issue, unless the offer to settle provides otherwise.

(7) The fact that an offer to settle has been made or the terms of any such offer shall not be referred to in any document filed with the Court or communicated in any other way to the Court or the judge dealing with the matter until after the judge has dealt with all the issues in dispute, except costs.

(8) An offer to settle may be accepted by delivering an acceptance in Form 56A.26A(C) to the party that made the offer to settle or their solicitor of record, if the party is represented, at any time before the offer to settle is withdrawn pursuant to Rule 56A.26A(4) or deemed rejected pursuant to Rule 56A.26A(5).

(9) A party may accept an offer to settle in accordance with Rule 56A.26A(8) even if the party has previously rejected the offer to settle or made an offer of their own, unless the offer to settle is deemed rejected pursuant to Rule 56A.26A(5).

(10) An accepted offer to settle constitutes an effective and binding agreement between the parties to the offer to settle.

(11) Where a party to an accepted offer to settle fails to comply with the terms thereof, the other party may apply to the Court

(a) for judgment in terms of the accepted offer to settle, or

(b) to dismiss the party's case, to strike out the party's pleadings or any other documents filed with the court, to enter a notice of default pursuant to Rule 56A.15, or such other relief as the court deems appropriate.

(12) Where both parties have made an offer to settle regarding the issues of custody or access and the offers to settle

(a) are delivered

(i) at least 2 clear days before the application is to be heard, where they relate to an interim or interlocutory application, or

(ii) at least 7 clear days before the trial is to commence, where they relate to a trial; and

(b) are not accepted before the commencement of the application or trial; and

the court shall, subject to rule 56A.26(4), have discretion to award costs to all, either or none of the parties by assessing whether an offer to settle was as favourable or more favourable than the judicial outcome.

(13) Where only one party has made an offer to settle issues of custody or access and the offer to settle

(a) is delivered

(i) at least 2 clear days before the application is to be heard, where it relates to an interim or interlocutory application, or

(ii) at least 7 clear days before the trial is to commence, where the offer relates to a trial;

(b) is not accepted before the commencement of the application or trial;

(d) is found to be as favourable or more favourable than the judicial outcome,

that party is entitled to the party and party costs of those portions of the proceeding to which the offer to settle related to be assessed on Column 3 of the Scale of Costs from the commencement of the proceeding to the date before the offer to settle was delivered and on Column 5 of the Scale of Costs from the date of the offer to settle to the conclusion of the proceeding, subject to rule 56A.26(4).

(14) Where a party has made an offer to settle one or more claims, other than a claim relating to custody or access, and the offer to settle

(a) is delivered

(i) at least 2 clear days before the application is to be heard, where it relates to an interim or interlocutory application, or

(ii) at least 7 clear days before the trial is to commence, where the offer to settle relates to a trial;

(b) is not accepted before the commencement of the application or trial;

(d) is found to be as favourable or more favourable than the judicial outcome,

(15) After a trial, hearing or application,

(a) a party that has made an offer to settle pursuant to this rule may apply to the Court within 15 days following the filing of the order for a determination of costs on the basis of this rule;

(b) any prior decision of a judge with respect to costs on that trial, hearing or application shall be suspended pending determination of that application; and

(c) the court shall have the discretion to make an award for costs pursuant to this rule or such other award of costs as may be considered appropriate, including but not limited to costs on a higher scale of costs, solicitor and own client costs, or a combination thereof, upon consideration of each parties' positions throughout the proceeding, including consideration of the factors set out in rule 56A.26(6).

(16) The burden of proving that an offer to settle has been delivered is on the sending party.

(17) The burden of proving that a judicial outcome is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of this rule.

4. The rules are amended by adding the Forms 56A.26A(A), 56A.26A(B) and 56A.26A(C) below.

Commencement

5. These regulations come into force on March 30, 2015.

Form 56A.26A(A)

(rule 56A.26A)

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR

TRIAL DIVISION (GENERAL/FAMILY)

Court No. _______________

Court File No. _______________

Divorce Registry No. _______________

BETWEEN:

_____________________________ APPLICANT

AND:

_____________________________ RESPONDENT

Offer to settle

Please specify whether the offer is open to being accepted in part or whether all terms of the offer must be accepted.

The Applicant/Respondent makes the following offer to settle (complete the part(s) of the Offer as may be applicable to your circumstances):

□ Custody and Access (Your proposal)

(You may find guidance regarding custody and access at the following Government of Canada websites:

About Custody and Parenting (http://www.justice.gc.ca/eng/fl-df/parent/plan.html)

Create a Parenting Plan (http://www.justice.gc.ca/eng/fl-df/parent/pa-ep.html)

And the Newfoundland and Labrador Family Division website:

http://www.court.nl.ca/supreme/family/index.html)

Decision-making about the children: _________________________________

________________________________________________________________

Parenting schedule:

Daily/Weekly/Monthly/Other:__________________________________________

Holidays, special occasions: __________________________________________

_________________________________________________________________

Phone, internet, other contact: _________________________________________

__________________________________________________________________

Other important issues in relation to parenting the children: _________________

__________________________________________________________________

□ Child Support: (Your proposal)

(You may find guidance regarding child support at the following Government of Canada website:

http://www.justice.gc.ca/eng/fl-df/child-enfant/index.html,

and the Newfoundland and Labrador Family Division website:

http://www.court.nl.ca/supreme/family/index.html)

□ Monthly basic child support amount:______________________________

□ Contribution to special and extra-ordinary expenses (as defined at section 7 of the Federal or Provincial Child Support Guidelines) such as:

□ Child Care:___________________________________________

□ Medical and dental insurance premiums for the child(ren):______

□ Health-related expenses that exceed insurance reimbursement by at

least $100 annually: _____________________________

□ Extra-ordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs: ______________________________

□ Expenses for post-secondary education: __________________

___________________________________________________

□ Extraordinary expenses for extracurricular activities:___________

______________________________________________________

□ Other requests for child support not specified above (including any arrears of child support that you may propose): __________

□ Spousal Support or Partner Support (Your proposal)

(You may find guidance regarding spousal support and partner support at the following Government of Canada website:

http://www.justice.gc.ca/eng/fl-df/spousal-epoux/index.html,

and the Newfoundland and Labrador Family Division website:

http://www.court.nl.ca/supreme/family/index.html)

□ Support amount (indicate monthly, lump sum and/or other payment period):_______

□ Duration (is there a length of time that you are requesting support to be paid, if so, how long do you want support to be paid): __________________

□ Arrears of Support (if you are proposing an amount for arrears of support, indicate how much you are claiming): _____

□ Division of Matrimonial Property/ Common Law Property (Your proposal)

(You may find guidance regarding the property issues at the Newfoundland and Labrador Family Division website:

http://www.court.nl.ca/supreme/family/index.html )

□ Assets (how do you want the marital assets to be divided, including houses and land, cabins, vehicles, pensions, investments and RRSP's): _______

______________________________________________________________

□ Debts (how do you want the marital debts to be divided, including mortgages, credit cards, loans and lines of credit): __________

□ Other (are there other property issues that you want to include as part of your offer, including business assets): __________

□ Other (Your proposal about other outstanding issues): _______________________________________________________________________________

□ Time Limit to Accept Offer (do you want your offer to be time limited for acceptance prior to the hearing or trial? If so indicate a deadline for acceptance of your offer):

Dated at , Newfoundland and Labrador this day of 20 .

Applicant/Respondent or his/her Lawyer

NOTE:

THIS OFFER TO SETTLE SHALL NOT BE FILED WITH THE COURT OR DISCLOSED TO THE COURT until all issues dealt with in this offer (other than costs) have been determined [rule 56A.26A(7)].

THIS OFFER TO SETTLE SHALL BE DELIVERED TO THE OTHER PARTY (PARTIES).

The Applicant/Respondent reserves the right to bring this offer to settle to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues dealt with in this offer. Please refer to rule 56A.26A(15).

This offer to settle may be accepted by serving an Acceptance of offer to settle (Form 56A.26A(C)) on the party who made the offer at any time before it is withdrawn or before the commencement of the family law proceeding to which the offer applies.

This offer to settle may be withdrawn at any time before it is accepted by serving a notice of withdrawal of offer to settle (Form 56A.26A(B)) on the party to whom it was made. If this offer to settle specifies a date after which it is no longer available for acceptance, then the offer shall be deemed to have been rejected by the other party on the day after that date.

Form 56A.26A(B)

(rule 56A.26A)

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR

TRIAL DIVISION (GENERAL/FAMILY)

Court No. _______________

Court File No. _______________

Divorce Registry No. _______________

BETWEEN:

_____________________________ APPLICANT

AND:

_____________________________ RESPONDENT

Withdrawal of offer to settle

The Applicant/Respondent withdraws his/her Offer to Settle dated the day of 20 in relation to the following:

□ All issues; OR

□ Custody and Access (insert the terms that are to be withdrawn)

□ Child Support (insert the terms that are to be withdrawn)

□ Spousal Support or Partner Support (insert the terms that are to be withdrawn)

□ Division of Matrimonial Property/ Division of Property of Common Law Spouses (insert the terms that are to be withdrawn)

□ Other (insert the terms that are to be withdrawn)

Dated at , Newfoundland and Labrador this day of 20 .

Applicant/Respondent or his/her Lawyer

NOTE:

THIS FORMAL WITHDRAWAL OF AN OFFER TO SETTLE SHALL NOT BE FILED WITH THE COURT OR DISCLOSED TO THE COURT until all issues (other than costs) have been determined [rule 56A.26A(7)].

This Withdrawal of an Offer to Settle must be delivered to the other Party or the other Party's lawyer.

Form 56A.26A(C)

(rule 56A.26A)

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR

TRIAL DIVISION (GENERAL/FAMILY)

Court No. _______________

Court File No. _______________

Divorce Registry No. _______________

BETWEEN:

_____________________________ APPLICANT

AND:

_____________________________ RESPONDENT

Acceptance of offer

Where you wish to accept the offering party's offer to settle in its entirety, please fill out the following section.

The Applicant/Respondent accepts all of the terms of the Respondent/Applicant's formal Offer to Settle dated the day of 20

Dated at , Newfoundland and Labrador this day of 20 .

Respondent/Applicant or his/her Lawyer

Where the party making the offer to settle has specified that the offer to settle may be accepted in part and you wish to accept one or more of the terms set out in that offer to settle, please fill out the following section.

The Applicant/Respondent accepts the following terms of the Respondent/Applicant's formal Offer to Settle dated the day of 20 :

□ Custody and Access (insert the agreed upon terms)

□ Child Support (insert the agreed upon terms)

□ Spousal Support, Partner Support or Parental Support (insert the agreed upon terms)

□ Division of Matrimonial Property/ Division of Property of Common Law Spouses (insert the agreed upon terms)

□ Other (insert the agreed upon terms)

Dated at , Newfoundland and Labrador this day of 20 .

Respondent/Applicant or his/her Lawyer

NOTE:

THIS FORMAL ACCEPTANCE OF AN OFFER TO SETTLE SHALL NOT BE FILED WITH THE COURT OR DISCLOSED TO THE COURT until all issues (other than costs) have been determined [rule 56A.26A(7)].

This formal Acceptance of an Offer to Settle must be delivered to the other Party or the other Party's lawyer prior to the commencement of the application or trial date to avail of rule 56A.26A relating to Offers to Settle.