Barber v. Magee, 2013 ONCJ 552

COURT FILE NO.: 176/11 DATE : 2013-08-13 Citation: Barber v. Magee , 2013 ONCJ 552 ONTARIO COURT OF JUSTICE RE: Hayley BARBER, Applicant Neil MAGEE, Respondent BEFORE: S. O’Connell COUNSEL: Michael Stangarone, for the Applicant Neil Magee, Respondent, acting in person C O S T S E N D O R S E M E N T Introduction: [ 1 ] The respondent father seeks full recovery of his costs in the amount of $24,786.07 in this matter. The parties reached comprehensive and final minutes of settlement on December 17, 2012, after receiving the report and recommendations of the Office of the Children’s Lawyer in this matter.

Position of the Parties: [ 2 ] The respondent father (“Mr. Magee”) submits that he was the successful party after Ms Barber brought this motion to change to permit her to move to Caledon with the child, Kailyn Magee, born May 6, 2006 (“Kailyn”). He submits that Ms Barber’s move to Caledon was the catalyst for this difficult case and that as a result of her impending move in October of 2012, she behaved unreasonably by refusing to adjourn the proceedings pending the completion of the investigation of the Office of the Children’s Lawyer.

He further submits that her behaviour lengthened the resolution of the case and his legal costs were increased significantly. [ 3 ] The applicant mother (Ms Barber”) submits that there should be no costs regarding the court appearances and negotiations resulting in the final minutes of settlement resolving all outstanding issues. The parties compromised to reach a final resolution of this matter. She submits that costs should not be ordered where the parties reached a final settlement.

She further submits that the respondent father’s unreasonable behaviour and hostile conduct throughout, including his unlawful withholding of the child at the outset of these proceedings, necessitating her urgent motion, disentitles him to any costs. Brief Background : [ 4 ] The parties were married in June of 2002. Kailyn was born in May of 2006 and the parties separated in September of 2008. Following the separation, Mr. Magee moved back home to Mississauga to live with his parents and Ms Barber moved to Milton.

The parties worked out a shared parenting arrangement whereby Kailyn moved back and forth between his parents, eventually on a week about basis. [ 5 ] On April 18, 2011, the parties entered into a final consent order through the assistance of the court based mediator in the Ontario Court of Justice in Milton. The final order provided, among other provisions, that the parties share custody of Kailyn and that the parents will share their time with Kailyn on a week about parenting

schedule with changeovers on Wednesdays at school during the

school year and on Monday mornings during the summer school break. [ 6 ] On July 23, 2012, Ms Barber brought an urgent motion for the enforcement of the April 18, 2011 final court order above. After hearing submissions, the court found that Mr. Magee had unlawfully withheld the child since June 25, 2012, contrary to the final court order. I ordered that the child be returned to the mother forthwith on that day and that the child remain in the mother’s care until August 13, 2012, and thereafter, the week about

schedule shall continue. I further ordered that there be police enforcement clause to ensure Mr. Magee’s compliance with the court order. I adjourned the issue of where Kailyn was going to school in September and future parenting arrangements to August 28, 2012 for a case conference and/or motion. Finally, as the mother was successful on the motion, I reserved the issue of costs to be argued on the return date. following order on that day: [ 7 ] On August 28, 2012, the case conference was held. At the case conference, Ms Barber requested that the week about parenting

schedule be changed. She advised that she would be relocating to Caledon, Ontario in October of 2012 with her spouse and their infant child. Ms Barber submitted that it was in Kailyn’s best interests to relocate with her to Caledon. Mr. Magee opposed this request and advised the court that he would be relocating to Milton in the near future. On consent of both parties, I referred the issue of relocation, custody and access to the Office of the Children’s Lawyer for a

section 112 social work investigation and report and requested that the referral be expedited. [ 8 ] In the interim, on consent of the parties, given that Kailyn had resided in Milton since the parties separated and the week about arrangement had been in place since the parties separated, I ordered that the status quo continue pending the outcome of the Children’s Lawyer’s investigation. However, I also wrote the following in my endorsement: “It is hoped that the O.C.L. will expedite this investigation and complete it before the mother’s intended move in October.

If not, the mother is free to bring a motion on September 27, 2012 at 2:30 p.m. regarding the relief [temporary relocation] requested. The father is also free to bring a motion.” [ 9 ] On September 27, 2012, Ms Barber brought her motion for temporary relocation. Although the social worker assigned (Ms Susan Peacey) had not yet completed her investigation, Ms Barber wished to proceed with the issue of Kailyn’s residence and school before her move to Caledon on Otober 12, 2012. I adjourned the motion for a full hearing to October 4, 2012 and set aside one hour.

I directed counsel to obtain confirmation from Ms Peacey (preferably in writing) regarding when she will be in a position to complete her recommendations. [ 10 ] At the hearing on September 27, 2012, Ms Barber renewed her request for costs for the urgent motion argued on July 23, 2012. She requested $2,000.00 in costs for the July 23, 2012 motion. I reserved the issue of the costs of the July 23 rd motion to October 4, 2012. Mr.

Magee did not seek costs at this motion date. [ 11 ] On October 4, 2012, before the motion was to be argued, the parties consented to adjourn Ms Barber’s motion to permit Ms Peacey to complete her recommendations as Ms Peacey had advised the court and parties that her investigation and report would be ready shortly. Ms Barber’s motion to relocate was adjourned to November 27, 2012. The issue of costs was not addressed at that motion by either party. [ 12 ] The October 4, 2012 motion was adjourned in accordance with a draft order prepared by counsel.

The draft order states the following: “That the motion made by the Applicant, Hayley Barber shall be adjourned to the first available date in the first week of November, 2012 or shortly thereafter and this date shall be peremptory for the hearing of the motion; that the issue of costs relating to the Applicant’s motion shall be decided by the Judge hearing the motion or, in the alternative, if the motion does not proceed, by the trial judge.” [ 13 ] On November 27, 2012, the parties re-attended before me. Ms Peacey had completed her investigation and report and the parties had a disclosure meeting.

Ms Peacey recommended the following, among other provisions, at page 8 of her Report, dated November 27, 2012, filed in the Continuing Record: 1. The parent shall exercise shared parenting, with the following conditions:

a) The father to have decision making authority over education

b) The mother to have decision making authority over religion

c) The parents to each have decision making authority over medical decisions

d) The mother to have decision making authority over any counselling that Kailyn may need

e) Each parent to solicit input from the other parent about these matters and include them as much as possible at all times, considering what would reasonably be assumed to be in Kailyn’s best interest. 2. Ms. Barber to have the same rights as any other parent to contact the school, obtain reports, attend school events etc. 3. Kailyn to live with his father from Monday after schoool until Friday after school unless Ms. Barber is unable to get Kailyn to

school onMonday mornings. In that case, Kailyn to be returned to his father Sunday at 7:30 pm. 4. Kailyn to live with his mother from Friday after school or at an agreed upon time until Monday at school. 5. The last weekend of every month, whether there are 4 or 5 weekends inthat month, Kailyn to spend with his father for the purposes of keeping his close contact with his extended family. 6. Ms. Barber to be entitled to 1 evening during the week with Kailyn, which may be made into an overnight if she is able to drive Kailyn to school in the morning.

This evening (overnight) could be Wednesday, or whichever night does not conflict with Kailyn’s scheduled activities. 7. If Ms. Barber is attending Kailyn’s soccer or other events, she may either drive him home, or take him out for a treat and drive him home, depending on the time, in consultation with Mr. Magee. 8. Kailyn to spend the summer holidays on a week by week about

schedule with his parents, with the switchover to take place every Friday at an agreed upon time. [ 14 ] At the hearing on November 27, 2012, counsel for Mr. Magee advised that the parties were attempting to resolve the issues on a final basis and had agreed to enter into temporary minutes of settlement pending final minutes. On consent, the matter was adjourned to December 17, 2012 at 9:30 a.m. for an anticipated final resolution.

Neither party addressed the issue of costs on November 27, 2012. [ 15 ] On December 17, 2012, the parties reached final minutes of settlement resolving all issues and filed comprehensive minutes of settlement which reflected the recommendations of the Office of the Children’s Lawyer. The only outstanding issue was the issue of costs. [ 16 ] It is important to note that my endorsements dated August 28, 2012, and September 17, 2012, November 27, 2012 are all silent as to costs with respect to the motion to change. Mr. Magee or his counsel did not request costs at those steps in the case.

The Law and Governing Principles: [ 17 ] Rule 24 of the Family Law Rules, O. Reg. 114/99, governs the determination of costs in family law proceedings and the sections relevant to the circumstances of this case are as follows: “ 24.

(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party's own costs or ordered to pay all or part of the unsuccessful party's costs.

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine, (

a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; (

b) the reasonableness of any offer the party made; and (

c) any offer the party withdrew or failed to accept.

(6) If success in a step in a case is divided, the court may apportion costs as appropriate.

(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice.

(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a

summary manner who, if anyone, is entitled to costs, and set the amount of costs.” [ 18 ] Rule 24 (11) provides a further list of factors that a court must consider when setting the amount of costs: “(

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

b) the reasonableness or unreasonableness of each party's behaviour in the case; (

c) the lawyer's rates; (

d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order; (

e) expenses properly paid or payable; and (

f) any other relevant matter.” O. Reg. 114/99, r. 24 (11) .

[19] Rule 18(14) and 18(16) of the Family Law Rules, which address the cost consequences of offers to settle, provide the following: “18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and fullrecovery of costs from that date, if the following conditions are met: 1. If the offer relates to a motion, it is made at least one day before the motion date. 2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date. 3.

The offer does not expire and is not withdrawn before the hearing starts. 4. The offer is not accepted. 5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. 18

(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made andits terms, even if subrule (14) does not apply.” O. Reg. 114/99, r. 18 (14) and (16). [20] In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J.

No. 1905, 2009 CarswellOnt 2475, at paragraph 8, theOntario Court of Appeal confirmed that costs rules are designed to foster three important principles: (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. [21] Rule 24 created a new framework for determining costs in family law proceedings.

The presumptive nature of Rule 24 hassignificantly curtailed the court’s discretion regarding costs in family law proceedings and absent compelling circumstances or theexceptions set out in the rule itself, costs are generally awarded to the successful party. The Ontario Court of Appeal in C.A.M. v. D.M.(2003) (ON CA), 67 O.R. (3d) 181 held that while the Rules have not completely removed a judge’s discretion, therules nonetheless circumscribed the broad discretion previously granted to the courts in determining costs.

Courts must not only decideliability for costs, but also the amount of those costs. [22] The court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointedout in Boucher et al. v. Public Accountants Council for the Province of Ontario, , 71 O.R. (3d) 291, 188 O.A.C. 201,48 C.P.C. (5th) 56, [2004] O.J. No. 2634, 2004 CarswellOnt 2521 (Ont.

C.A.), the award of costs must be fixed in an amount that is fairand reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to thesuccessful litigant. [23] Consideration of success is the starting point in determining costs. However, any attempt to determine a “winner” or “loser” in asettlement is, in most cases, complex if not impossible. Cases are resolved in whole or in part for many reasons. See Sims-Howarth v.Bilcliffe, 2000 CarswellOnt 299 (S.C.J.), para. 1.

Thus, for good reason, judges are reluctant to make an order as to costs when theparties settle the merits to their dispute. Where parties make a settlement as between themselves, the court should be very slow to makean award of costs against one of the parties. Unless there are compelling reasons to do so, costs in the circumstances of the settlementbetween parties ought not to be awarded by the court. See: Page v. Desabrais, supra, para. 28; Blank v. Micallef, (ON SC), 2009 CarswellOnt 6790, para. 11; Gurzi v.

Elliot, 2011 CarswellOnt 2169 (O.C.J.) para. 16. [24] If the court is able to determine which party is successful based on minutes of settlement, than the divided success approachunder Rule 24(6) is appropriate, and a consideration of the parties’ reasonable or unreasonable behaviour must be made.

See Davis v.Davis, 2004 CarswellOnt 2186 (S.C.J.) paras. 3 and 7. [25] Further, if a successful party has behaved unreasonably “in relation to the issues from the time they arose (Rule 24(5),” thenpursuant to Rule 24(4), they may be “deprived of all or part of the [their]costs or ordered to pay all or part of the unsuccessful party’scosts.” Behaviour under Rule 24(5) is not restricted to behaviour associated with offers to settle. See Family Law Rules, Rule 24(4), (5)and 11(b); Lawson v.

Lawson, 2004 CarswellOnt 3154 (S.C.J.), para. 44. [26] Rule 24(10) of the Family Law Rules also provides that the judge who deals with a step in a case shall decide who, if anyone, isentitled to costs. It is well established that in order to obtain costs for prior steps, there must be an order reserving those costs to the trialjudge, or to the motions judge. A trial judge or motions judge is not entitled to make an award for costs covering prior steps such as caseconferences and settlement conferences.

Those prior steps are not within the judge’s discretion particularly where there was no order asto costs or the issue of costs was not address. See Family Law Rules, Rules 24(10); Islam v. Rahman, 2007 ONCA 622 , 2007CarswellOnt 5718 (Ont. C.A.) at paragraph 2; Jepson v. Cresnjovec, 2007 CarswellOnt 7255 (O.C.J.) at para. 8; MacIntosh v. MacIntosh,2008 CarswellOnt 655 (S.C.J.) at paras. 22-23 and Debora v. Debora, 2005 CarswellOnt 676 (S.C.J.), para 20. [27] Finally, in deciding the amount of costs to be paid, I must also consider clause 24 (11) (

f) which requires the court to considerany other relevant matter, including the ability to pay costs. See Biant v. Sagoo, , 20 R.F.L. (5th) 284, [2001] O.J.No. 3693. In C.A.M v. D.P. supra, Justice Rosenberg for the Ontario Court of Appeal states the following: “I am also of the view that the financial situation of the parties can be taken into account in setting the amount of the costs award eitherunder Rule 24 or Rule 18. Thus, while subrule 24(11) enumerates a number of factors that must be taken into account, the person settingthe amount of the costs is directed to take into account "any other relevant matter". I agree with Aston J. in Sims-Howarth at para. 4, that

the " Family Law Rules demand flexibility in examining the list of factors in subrule 24(11) without any assumptions about categories of costs". In my view, a consideration of particular relevance may be the financial position of the parties, especially of an unsuccessful custodial parent. See Biant at para. 17 and Brennan v. Brennan, [2002] O.J. No. 4743 (S.C.J.) at para. 11 .

In fixing costs the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child. [par. 42] Analysis and Conclusion: [ 28 ] For the reasons below, applying the legal principles above, this is not an appropriate case to award costs to either party. [ 29 ] This was a high conflict custody and access case. It was also a relocation case. Ms Barber commenced her application after Mr.

Magee had refused to return the child pursuant to the shared custody agreement that they had reached and which had been incorporated into a final court order that was in full force and effect. [ 30 ] Ms Barber acted reasonably throughout this matter. Mr. Magee did not as he withheld the child in breach of a final order necessitating Ms Barber’s urgent motion and the commencement of her proceedings to change the custodial arrangements. Despite the final order, Mr. Magee unlawfully withheld the child for a period of four weeks. The child was no doubt confused and upset by Mr. Magee’s improper conduct.

Ms Barber was distraught. [ 31 ] Mr. Magee’s hostility and lack of respect for Ms Barber in court was very apparent and clearly was contrary to the best interests of the child. It was also apparent to the court that Mr. Magee was using the child as leverage against Ms Barber and in fact, he declared to the court that he has no respect for Ms Barber. Mr.

Magee’s hostility towards Ms Barber, his lack of respect for a court order, together with using the child as leverage and over-holding him in the family proceedings amounts to unreasonable behaviour that should not be rewarded in costs. [ 32 ] Ms Barber was successful on the urgent motion and costs were reserved and never dealt with given that the parties reached final minutes of settlement. The costs pertaining to the urgent motion and the costs relating to the subsequent motion to change and its related appearances should therefore be kept discrete. [ 33 ] On the contrary, Mr.

Magee has submitted dockets in support of his costs claim for the hearings on August 28, 2012, September 27, 2012, October 4, 2012, and November 27, 2012. But for October 4, 2012, Mr. Magee is seeking costs for steps where he did not seek costs previously and no costs were ordered or reserved. It is well established that in order to obtain costs for prior steps, there must be an order reserving those costs to the trial judge, or to the motions judge.

These claims should therefore be disallowed. [ 34 ] The final minutes of settlement in this matter was reached through compromise by both parties and neither party was fully successful. In Mr. Magee’s response to motion to change, he requested an order that Ms Barber have the child on alternating weekends, commencing Friday after school to Sunday at 5:00 p.m.; Wednesday access from after school until 7:00 p.m. and that the child’s principle residence be with him. He did not obtain this requested relief.

Further, relocation cases almost always proceed to trial, and to Ms Barber’s credit, she resolved the issues on a final basis once she received the report of the Children’s Lawyer. [ 35 ] The parties’ final minutes of settlement demonstrate that although the shared custodial arrangement was altered such that the child spent significantly more time with Mr.

Magee during the week, and Ms Barber’s request to relocate Kailyn to Caledon during the school week did not occur, the parties settled on Ms Barber having the child for every weekend of the month, except for the last weekend, in addition to mid-week time, including overnight. The joint custody order continued. [ 36 ] Further, Mr. Magee ignored an offer to settle from Ms Barber provided to him on September 12, 2012. The offer covered the matters included within the motion to change and Ms Barber sought to settle issues prior to the motion that was scheduled for September 27, 2012.

Ms Barber’s offer to settle demonstrates her reasonable approach to these proceedings. [ 37 ] Ms Barber is a bartender. Her 2011 income was $38,596. Pursuant to the final minutes, Ms Barber pays child support in the amount of $342 per month in addition to proportionately sharing special extraordinary expenses. Mr. Magee’s request for costs of $24,244.39 would create enormous financial strain and is simply not warranted in the circumstances of this case.

The amount would also jeopardize her ability to pay child support. [ 38 ] In conclusion, the court is very reluctant to make an order for costs against one of the parties when the parties settle the outstanding issues in dispute between themselves, absent compelling reasons to do so. There are no compelling reasons here, in light of the above circumstances outlined, to order costs to Mr. Magee or to Ms Barber. [ 39 ] Accordingly, there will no order for costs. ___________________________ Justice Sheilagh O’Connell DATE: August 13, 2013