“An offer has to be wholly equal to or better than the result achieved at trial: see Gurley v. Gurley, 2013 ONCJ 482 where Sherr J. stated at para. 9:
The offer included incidents of custody that were not included in the final order, including a term that the father could apply for the children’s identification, including passports, without the mother’s consent, and a term that the mother not expose the children to smoke or marijuana use. Close does not count when applying subrule 18(14). Its presumptive costs consequences were not triggered by this offer.
Even though the financial issues were settled in the present case rather than being adjudicated on, the same principle applies. If the result at trial, through settlement or decision, is not the same as or better than all of the terms of the offer, the court cannot presumptively award the costs of a proceeding under Rule 18(14). Nothing in that rule permits a court to presumptively award costs because the party making the offer bettered part of the offer. Without the offer being severable, the Applicant is only entitled to partial recovery costs based upon his success in the proceedings, something the Respondent already acknowledges.
That might have been remedied had the offer stated that its terms were severable, which would have allowed me to award costs based only upon the major issue at trial, which was the mother’s claim for a change in custody. Without a severability clause, the offer cannot be used to presumptively award full recovery costs because the financial provisions in that offer differed from the end result. Wildman J. spoke to the issue of the severability of an offer in Paranavitana v. Nanayakkara, 2010 ONSC 2257 (CanLII), [2010] O.J. No. 1566 (S.C.J.) in a statement that is particularly applicable to the present case at para. 13 and 14:
13 Unfortunately, this offer was not severable. There would have been no disadvantage to the wife in making the custody offer, in particular, severable from the financial and property terms. Severable offers are an underused tool that can confer considerable settlement and cost advantages. Because of the full recovery provisions of Rule 18(14), they can provide much more flexibility to the court to award full recovery for at least a portion of the overall costs, if the party is successful on only some of the issues. Had the custody terms of the wife’s offer been severable from the other terms, I would have been prepared to consider ordering full recovery costs on the custody issue from the date of the offer forward. As this was the majority of the trial time, that would have been a significant cost advantage to the wife.
14 However, as the offer was not severable, the wife would have to do as well or better than all the terms of the offer, in order to take advantage of the full recovery cost provisions of Rule 18(14). Since the husband got an additional week of access, as well as an order that spousal support would reduce from $1000 in three years, Ms. Nanayakkara did not do as well as or better than her offer in its totality.
Wildman J. goes on to state that this does not prevent the court from taking the offer into account when awarding costs under Rule 18(16).