Frape v. Mastrokalos, 2017 ONCJ 915

ONTARIO COURT OF JUSTICE (Name of Court) 491 Steeles Avenue East, Milton, ON L9T 1Y7 CITATION: Frape v. Mastrokalos, 2017 ONCJ 915 DATE: November 14, 2017 COURT FILE # 518/16 Date : November 14, 2017 Applicant(s): Aiden Frape Counsel: Linda Joe. Respondent(s): James Mastrokalos Counsel: Maneesha Mehra Heard: In chambers COSTS ENDORSEMENT [ 1 ] The respondent father, James Mastrokalos (“the father”) seeks $11,714.26 in full indemnity costs of a case conference and motion that was settled before it was argued. The terms of the settlement were similar to the father’s offer to settle.

The Applicant mother (“the mother”) opposes the request and seeks an order that no costs are payable in light of the parties’ settlement. [ 2 ] The parties are the young parents of two year old Kobey James Frape, born November 6, 2015 (“Kobey”). The mother is his primary caregiver. The key ongoing issue between the two parents has been the father’s access to Kobey. [ 3 ] The parties appeared for a number of case conferences before me that centred on the access issues. Generally the father was looking for an ongoing expansion of access.

The mother argued that any access expansion should go slowly in light of the child’s age and her concerns about the father’s behaviour. She says that he abused her during their relationship; a claim confirmed by his conviction for assaulting her, as well as breach of probation and failure to comply with a recognizance. [ 4 ] On June 9, 2017 the parents agreed on an expansion of the father’s day access to Kobey, supervised by his parents. The terms agreed upon were close to those in the father’s offer. No costs were granted or reserved. [ 5 ] The parties appeared before me again on September 5, 2017.

The father sought a further expansion of his access to include some overnights, stating that access had gone well to date. When the parents were unable to agree that day on terms moving forward, a motion date was set. I made no reference to the conduct of either party in my endorsement. [ 6 ] The parties subsequently exchanged offers to settle, which ultimately led to settlement on a temporary order that increased the father’s access to include some overnights. This was done before materials were due to be served. No motion was argued.

Nonetheless, the father claims his costs of the conference and the negotiations that led to the temporary settlement. [ 7 ] For the reasons that follow, I order that each parent is responsible for his or her own costs of the September 5, 2017 case conference and subsequent negotiations leading to a consent order. HISTORY OF NEGOTIATIONS LEADING TO THE PROPOSED MOTION [ 8 ] On September 7, 2017 the father served an offer to settle that he said reflected my “recommendations” for settlement at the case conference two days earlier.

Of course, at a case conference that precedes a motion that I would hear, I cannot offer any recommendations. I can only attempt to facilitate an agreement. [ 9 ] The terms of the father’s access offer were not severable. It called for no costs if the offer were accepted by September 15, 2017, costs fixed at $2,500.00 if accepted between September 15 and 22, 2017, and full indemnity costs if the offer were accepted thereafter. [ 10 ] On September 15, 2017, the day that the father said that his offer could be accepted without costs, the mother’s lawyer, Ms. Joe, wrote to the father’s lawyer, Ms. Mehra. Ms.

Joe’s letter included a counteroffer that was really the father’s offer with a few handwritten revisions. Ms. Joe wrote: Please find attached your client’s Offer to Settle which has been accepted by my client with a couple of changes . Kindly note that the contemplated changes to the weekend access

schedule on October 21 and December 2 only work if the Week 2

schedule is followed next week ( i.e., commencing September 18, 2017). [my emphasis] [ 11 ] Attached to Ms. Joe’s letter was the father’s offer of September 7, 2017 with the following minor handwritten changes:

• Kobey is to be returned to daycare after Tuesday overnights after 7:15 a.m. (the father’s offer had no return time); • Correcting a reference to weekend overnight access commencing Saturday October 20, 2017 because the Saturday in question was October 21, not October 20, 2017; • Correcting a reference to weekend access commencing Saturday December 1, 2017, because the Saturday in question was December 2, not December 1, 2017; • Adding that the return to daycare on the Monday mornings following weekend overnight access after December 1, 2017 be after 7:15 a.m.; • Adding an addendum stating that the father will return Kobey to the mother at 7:00 p.m. on October 31, 2017 (Halloween), 3:00 p.m. (instead of 7:00 p.m.) on Sunday October 8, 2017 and 5 p.m. on December 26, 2017. • Ms.

Joe signed the amended draft offer (or to be precise, her client’s counteroffer) as “accepted with changes as initialed” on behalf of her client. [ 12 ] Six days later, on September 21, 2017 Ms. Mehra wrote back to Ms. Joe to say that the father had not accepted the mother’s counteroffer. Instead she warned about “…significant costs consequences levied [by the court] for a refusal to negotiate settlement of Mr. Mastrokalos’ very reasonable request for access expansion.” [ 13 ] The father was unwilling to agree to most of the changes requested by the mother.

His lawyer stated that some proposed changes arose from a misunderstanding of the schedule. But the letter went on to impugn the mother’s motives, particularly with regard to the 7:15 a.m. return time to daycare. It stated that: …Ms. Frape’s demand regarding the drop off time is not motivated by Kobey’s best interests, but rather obstruction of Mr. Mastrokalos’ parenting time. [ 14 ] Ms. Mehra added that “due to work/train schedules” the father’s family cannot drop Kobey off at daycare centre after approximately 7:00 a.m.

She then acknowledged that the dispute was “…over 15 minutes or less …” [ 15 ] Despite rejecting the counteroffer, the father accepted some proposed changes/corrections regarding the proper start dates for an increase in Saturday access and accepted two additional hours of access on December 26, 2017 contained in the mother’s offer. Nonetheless his lawyer wrote to Ms. Joe that: … the cost consequences of Mr. Mastrokalos’ offer to settle have started accruing, which costs include but are not limited to this exchange of correspondence. Mr. Mastrokalos’ motion materials are due to be served by October 18 th .

We will commence drafting same shortly and further costs will then accrue. [ 16 ] Let me stop here to point out that the parties were so close to a full settlement that a telephone call would almost certainly have resolved the few and minor remaining issues. As Ms. Joe pointed out in her responding letter of September 26, 2017, the mother’s counteroffer “… did not change the relief … [that the father was] seeking in any significant way.” [ 17 ] Ms.

Joe also stated that if Kobey needs to be dropped off at daycare at 7:00 a.m., “so be it …” She explained the mother’s reasoning, stating that “… an earlier drop off at day care means that Kobey needs to wake up earlier.” Ms. Joe went on to clarify that her client had proposed a “flip of weeks” to ensure that the change coincide with the father’s Saturday access. She apologized if she had made a mistake in that regard. She confirmed that Kobey could be returned to her client at 5:00 p.m. on Boxing Day, December 26, 2017. [ 18 ] In that letter, Ms.

Joe also reasonably proposed that: If you believe that there still are outstanding issues, we can

schedule a teleconference before Justice Kurz. [ 19 ] In her responding letter of October 2, 2017, the father’s counsel offered to accept costs of $3,500.00 if the mother signed his newly amended offer. Ms. Joe responded by signing the offer with one very minor correction and talking out the term regarding costs. [ 20 ] The parties ultimately agreed on the access terms and left it to me to sort out the costs. LAW REGARDING COSTS Jurisdiction to Award Costs [ 21 ] The jurisdiction of this court to grant costs arises from s. 131 of the Courts of Justice Act . That provision gives the court broad discretion to determine costs. It states: 131.

(1) Subject to the provisions of

an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. [ 22 ] Family Law Rule ( FLR ”) r. 24 sets out the factors that the court must consider in the exercise of its discretion regarding costs. Relevant provisions of r. 24 read as follows:

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS 24.

(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. … SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY

(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. DECISION ON REASONABLENESS

(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. DIVIDED SUCCESS

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

(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 or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice. BAD FAITH

(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. … DECIDING COSTS

(10) Promptly after dealing with a step in the case, the court shall, (

a) make a decision on costs in relation to that step; or (

b) reserve the decision on costs for determination at a later stage in the case. Same

(10.1) In making a decision on costs in relation to a step in a case, the court shall decide in a

summary manner whether anyone is entitled to costs and, if so, determine who is entitled and set the amount of the costs. FACTORS IN COSTS

(11) In setting the amount of costs, 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 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 andcorrespondence, 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. General Costs Principles [23] As the Ontario Court of Appeal noted in Serra v. Serra[1]: Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost oflitigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), (ON CA), 46 O.R. (3d) 330, at para. 22. [24] The same court stated in Boucher v.

Public Accountants Council for the Province of Ontario that costs awards should reflect“what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties.”[2] [25] In the recent decision of Shute v. Shute,[3] Justice Victoria Starr of this court identifies a fourth purpose of costs in family lawproceedings: ensuring that the primary objective of the FLR, dealing with cases justly, is met. Starr J. wrote: 29 Subrule 2(2) of the Rules adds a fourth fundamental purpose for costs: to ensure that the primary objective of the Rules is met --that cases are dealt with justly.

This provision needs to be read in conjunction with Rule 24 of the Rules. Subrule 2(4) of the Rules statesthat parties have a positive obligation to help the court to promote the primary objective under the Rules. Clauses 2(3)(

a) and (

b) of theRules set out that dealing with a case justly includes ensuring that the procedure is fair to all parties and saving time and expense. [See:Sambasivam v. Pulendrarajah, 2012 ONCJ 711 ]. Success [26] In H.A. v. M.M., Justice Stanley Sherr of this court stated that [c]onsideration of success is the starting point in determiningcosts.”[4] [27] In Mantella v. Mantella[5], Justice Deena Baltman of the Superior Court of Justice wrote: Rule 24 of the Family Law Rules presumes that the successful party will, barring unusual circumstances, recover at least substantialindemnity of their costs.

There remains, however, significant discretion to award the amount of costs that appear just in all thecircumstances, particularly after taking into account the various factors set out in Rule 24(11). [28] In Lawson v. Lawson, Justice J. Wilma Scott of the Superior Court of Justice Scott stated that the any determination ofsuccess “…must take into account how that order compares to any settlement offers made.”[6] Offers to Settle [29] FLR r. 18 deals with offers to settle. Sub-rule 18 (4) requires an offer to be signed by both the offering party and his or herlawyer, if any.

It states: OFFER TO BE SIGNED BY PARTY AND LAWYER

(4) An offer shall be signed personally by the party making it and also by the party’s lawyer, if any. [30] Sub-rules 18 (14) - (16) deal with the cost consequences of offers to settle. They state: COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recoveryof 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. COSTS CONSEQUENCES — BURDEN OF PROOF

(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims thebenefit of subrule (14). COSTS — DISCRETION OF COURT

(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and itsterms, even if subrule (14) does not apply. [31] In Serra, the Ontario Court of Appeal emphasized the obligation to attempt to settle that arises from the very beginning of afamily law case. In doing so, it adopted the following statement by Spence J. in Husein v. Chatoor: [P]arties have an obligation to begin to assess their respective cases at the outset of the litigation – even before the litigation commences– and to make all reasonable efforts to settle.

Legal fees can create enormous financial burdens for litigants and it behoves neither partysimply to sit back and to roll the dice while those fees continue to mount. [Emphasis added by Ontario Court of Appeal] [7] [32] In J.V.M. v. F.D.P., Justice Stanley Sherr of this court equated the failure to make an offer to settle to unreasonable behaviourunder Rule 24. He stated: “…The failure to make an offer to settle much earlier by either party is unreasonable behaviour. Subrule 2(4) imposes a duty on partiesand their lawyers to promote the primary objective of the rules to deal with cases justly (subrule 2(2)).

This includes taking appropriatesteps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense by promotingsettlements, focusing parties and often narrowing issues in dispute. See Laing v. Mahmoud, 2011 ONSC 6737 , [2011] O.J. No.5134, 2011 CarswellOnt 12972 (Ont. Fam. Ct.). The failure to serve an offer to settle will be an adverse factor when assessing costs.”“…The failure to make an offer to settle much earlier by either party is unreasonable behaviour.

Subrule 2(4) imposes a duty on partiesand their lawyers to promote the primary objective of the rules to deal with cases justly (subrule 2(2)). This includes taking appropriatesteps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense by promotingsettlements, focusing parties and often narrowing issues in dispute. See Laing v. Mahmoud, 2011 ONSC 6737 , [2011] O.J. No.5134, 2011 CarswellOnt 12972 (Ont. Fam. Ct.). The failure to serve an offer to settle will be an adverse factor when assessing costs.”[8] Scale of Costs [33] In Biant v.

Sagoo[9] Justice Craig Perkins of the Superior Court of Justice stated that: “… the preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successfulparty has behaved reasonably and the costs claimed are proportional to the issues and result.” [10] [34] In MacDonald-Sauer v Sauer[11], Justice James Turnbull of the Superior Court of Justice endorsed the approach of PerkinsJ. when he stated: 44 It has been held that the preferable approach in family law cases is to have costs recovery generally approach full recovery so longas the successful party has behaved reasonably and the costs claimed are proportional to the issues and the results.

Where the Rules leavea discretion to the trial justice on how much to award, it is reasonable to look at the full amount claimed, the reasonableness of a party'sbehaviour, the extent to which there is divided success, test the amount against the factors listed in Rule 24 (11) and then look at factorssuch as ability to pay in deciding whether the costs awarded should be substantial (about 80%) or full recovery or somewhere in between.Biant v. Sagoo (ON SC), [2001] O.J. No. 3693 (S.C.J.) [35] That principle was affirmed by the Ontario Court of Appeal in the 2015 case of Berta v.

Berta[12] and again in the 2016case of Forrester v. Dennis[13] [36] In Sordi v. Sordi[14], the Ontario Court of Appeal stated that: In the context of family law disputes, a court need not find special circumstances to make a costs award approaching substantialindemnity. De-Emphasis on Time Spent to Determine Costs

[ 37 ] As Justice David Aston of the Superior Court of Justice stated in Delellis v. Delellis and Delellis , the Ontario Court of Appeal’s emphasis on setting costs that are “fair and reasonable” has led to a de-emphasis on time spent by counsel as the key factor in fixing costs. He wrote: However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 , as amended have begun to de-emphasize the traditional reliance upon “hours spent times hourly rates” when fixing costs....Costs must be proportional to the amount in issue and the outcome.

The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. [15] The failure to serve an offer to settle will be an adverse factor when assessing costs.” [16] Party Status does not Grant a License to Litigate Oblivious to the Consequences [ 38 ] The right to bring or respond to case does not grant a party the license to litigate in a manner that ignores the consequence of that litigation. Justice Carole Curtis emphasized this point in Sabo v.

Sabo [17] as follows: 38 Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation… Bad Faith [ 39 ] In order to meet the requirement of bad faith in sub-Rule 24(8), a litigant’s conduct must fall far below standard expected of parties to a proceeding.

The misbehavior must be deliberate and intended to harm, conceal or deceive. In S.(

C) v. S. (C) [18] Perkins, J. offered a thorough description of the behaviour required to meet the definition of the term, bad faith, as follows: In order to come within the meaning of bad faith in subrule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court.

A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent.

At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification. [ 40 ] That is why, as Justice Alex Pazaratz of the Superior Court of Justice recently wrote in Jackson v. Mayerle, “ … Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made.” [19] [ 41 ] Pazaratz J. was careful to distinguish bad faith from bad judgment, negligence, or unreasonable behaviour.

Bad faith requires some element of conscious wrongdoing. As Pazaratz J. put it: 58 Bad faith is not synonymous with bad judgment or negligence. Rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation… 59 There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally.

The court can determine that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated. Costs of a Case Conference [ 42 ] FLR 17, which deals with conferences, makes no reference to costs other than in r. 17(18). That sub-rule refers to the granting of costs when a party is not prepared for the conference, has not served the required brief, made the required disclosure or otherwise not followed the rules.

It requires a judge to immediately fix and order the payment of the costs of the conference and to give any directions that are needed. [ 43 ] FLR r. 17 can be read in conjunction with: • FLR r. 24 (1), which establishes a presumption that the successful party is entitled to the costs of a motion, enforcement, case or appeal, and • FLR r. 24 (10), which calls for costs to be determined promptly and summarily after each step in the case. [ 44 ] Under such a reading, it can be argued that the FLR do not call for costs of conferences other than in unusual circumstances related to a breach of a parties’ procedural obligations.

Such a reading would be supported by the comments Justice Gordon Lemon of the Superior Court of Justice in Soares v. Soares. [20] There he stated at par. 11: “ … the authorities are clear that the costs of a case conference are not appropriate for the hearing judge to assess.” [ 45 ] While this precedent is relevant, the comments of Lemon J. came in the context of a different judge considering the costs of a previous attendance.

That must be contrasted with the regime of single judge case management in this court. [ 46 ] It is also well to recall that a court cannot determine the applicability of the objectives of a costs order in regard to a case conference until after the subsequent motion has been decided. That point was made by Justice David Price of the Superior Court of Justice, who wrote the following in Kaverimanian v. Kaverimanian : [21]

42 A successful litigant should not, in all cases, be deprived of the costs of a case conference solely because the conference judge did not make a specific order for such costs, since the objectives of a costs order, including indemnification of the successful litigant, the unreasonable conduct of a litigant, and settlement offers in relation to the outcome of an adjudication, can often not be properly assessed until the motion has been decided. [ 47 ] Here the parties agreed that the costs of the case conference would be adjourned to the motion.

Further I conducted the case conference and was slated to hear the motion. Therefore I am in a better position than a different judge in a non-single judge case management arrangement, to determine the costs of a preceding case conference. [ 48 ] Saying that though, I note that I did not refer to any reason to order costs against Ms. Frape in my endorsement for the case conference. [ 49 ] I further reiterate that I may have attempted to facilitate an agreement at the case conference.

But I did not make any recommendation or come to any determination of the merits of the merits of the father’s access increase request at the conference. Had I done so I could not have heard the motion. Costs in the Event of Settlement [ 50 ] In Johanns v. Fulford , [22] Justice David Aston of the Superior Court of Justice found that settlement, even on the eve of trial, was no barrier to the granting of costs. In determining costs, the court may look at the relative success of each party, even if the results are divided.

That costs assessment, of course, requires an in depth analysis of the facts of each case, including a close review of all offers. [ 51 ] In C. (A.) v. K. (G.) , [23] Justice Ellen Murray of this court reviewed a number of cases that considered whether costs may be awarded in the face of a settlement. She pointed to the very commonsense proposition that in some cases a court is in the position to determine success but that in others it is not. [ 52 ] Murray J. referred to a decision of Justice Craig Perkins of the Superior Court of Justice in Davis v.

Davis . [24] There Perkins J. found that even if the court cannot determine whether one party is more successful than the other in order to take advantage of the presumption of costs in the face of success, [25] the court can determine costs in other ways.

It can look to FLR r. 24 (6) (divided success) “as appropriate” and r. 24 (11) (factors in costs, including, per r. 24 (11) (f), “any other relevant matter”). [ 53 ] Some more recent decisions have considered the purposes of the FLR in determining that courts should be circumspect in engaging in the archeology of unearthing offers and reviewing the conduct of parties who were ultimately able to settle. [ 54 ] In Talbot v. Talbot , [26] Justice Linda Templeton of the Superior Court of Justice expressed her reluctance to determine the costs of steps prior to settlement of a case.

She wrote of the difficulty of determining success in most cases, stating: 58 Any settlement must surely be presumed to have been the end result of negotiation and involve some element of compromise in the absence of any reference to the contrary or "clear capitulation". As noted by Grace J., [27] "cases are resolved in whole or in part for many reasons. Legal, economic, social, political, emotional, physical or other factors may be wholly or partly at play." [ 55 ] In Krueger v. Krueger , [28] Justice Jonathon C.

George of the Superior Court of Justice stated, after a review of applicable authorities, including the decision of Templeton J. in Talbot , that The bottom line is this. Courts should be wary to award costs when the parties reach a settlement. [29] [ 56 ] In her review of the applicable principles, Starr J. of this court reached a similar conclusion in Shute v. Shute , where she stated: Where a matter settles, the success and/or reasonableness of the conduct of the parties is a consideration but not the most important one.

In such cases, the emphasis should be on discouraging inappropriate conduct and promoting settlement. Thus, instead of identifying a reason not to award costs, the court must identify a compelling reason to make an award. [30] [ 57 ] I adopt the comments of Starr J. ANALYSIS Success and Offers to Settle [ 58 ] The father argues that he was successful in that, he says, he secured a result that was identical to his original offer and draft order. He was able to expand his access to include overnights.

He goes on to say that the mother “rejected” his offer, causing him to incur additional costs. [ 59 ] The parents may not have settled the access issues at the case conference, but following the exchange of offers, they were only hours apart on an ongoing basis. The mother’s timely response to the father’s offer was actually to accept it, other than some minor changes and corrections. [ 60 ] As stated above, any dispute about those changes could likely have been resolved had one counsel picked up the phone to speak to the other or arranged a conference call with me (as suggested by Ms. Joe).

They did ultimately arrange such a call but ended up resolving the remaining issues before the call took place.

[ 61 ] In these circumstances, I am unwilling to say that the success was anything but divided as the parents were virtually ad item on the date in which the mother was required to respond to the father’s offer. [ 62 ] I note that the father states that the mother’s counteroffer was not a formal offer under FLR r. 18, presumably because it was not signed by the mother per r. 18 (4). It was signed on her behalf by Ms. Joe, who had ostensible authority to bind her client. But I note that r. 18 (16) states that the court can consider any written offer to settle.

Unreasonable Behaviour and Bad Faith [ 63 ] The father claims that the mother’s behaviour in this litigation was unreasonable, to the point of bad faith. Part of her argument refers to previous negotiations which are not the subject of this costs request. [ 64 ] What appears to have occurred here is that the mother had the opportunity to consider or reconsider her position following the case conference and receipt of the father’s offer. Her counsel responded within the time limit set by the father in his offer to settle, demonstrating the paucity of remaining issues in dispute.

Some of the issues related to a misunderstanding that could have been quickly resolved in other circumstances. Some appear to have involved mistakes by each side. [ 65 ] I see no unreasonable behaviour, let alone bad faith by the mother in this portion of the case. Proportionality [ 66 ] With the greatest respect, I believe that the father’s response to the mother’s counteroffer, rejecting it while threatening significant costs and impugning her motives, was out of proportion to the terms of that counter-offer. The parties were very close to resolving the issues.

I have already spoken of the steps that the parties could have immediately taken to bridge any remaining divide. They ultimately did so, other than in regard to costs. [ 67 ] All of this is to say that the claim for costs of over $11,000.00 in these circumstances is disproportionate to the course of negotiations and the position taken by the mother following receipt of the father’s offer. To award those costs would penalize a party who, in this step of the case, bargained reasonably and in good faith.

Fair and Reasonable [ 68 ] For all of the reasons set out above, I find that it is fair and reasonable in these circumstances for each party to bear their own costs of the case conference of September 5, 2017 and the subsequent negotiations that led to their consent order. [ 69 ] There will be no order of costs for those steps in this proceeding. November 14, 2017 Justice Marvin Kurz [19] [2016] O.J. No. 1136 (O.S.C.J.)