MacKenzie v. Newby, 2015 ONCJ 434

COURT FILE NO.: 324/13 DATE: 2015-08-06 Citation: MacKenzie v. Newby , 2015 ONCJ 434 ONTARIO COURT OF JUSTICE RE: Jamie Dionne MACKENZIE – Applicant Christopher NEWBY - Respondent BEFORE: Justice S. O’Connell COUNSEL: Julie Quirt, for the Applicant Melissa Fedsin, for the Respondent E N D O R S E M E N T Introduction : [ 1 ] Both parties seek their costs in the motion argued before me in November and December of 2014. The respondent father seeks his costs on a full recovery basis in the amount of $22,172.25. The respondent mother seeks her costs in the amount of $9,099.39.

Background: [ 2 ] On September 2013, the mother began an application in the Ontario Court of Justice for custody, child support and permission to move the permanent residence of the child to Nova Scotia. The child had been habitually resident in Ontario all of her life. [ 3 ] On September 27, 2013, the mother brought an urgent motion before Justice Zisman seeking a temporary order permitting her to relocate to Nova Scotia with the child pending the resolution of her application. [ 4 ] On October 2, 2013, for written reasons, following a contested hearing, Justice Zisman made the following temporary order: 1.

The Applicant, Jamie Dionne MacKenzie shall be granted custody of Kyra Lynn MacKenzie born August 15, 2011. 2. Pending further order of the court, the Applicant shall be permitted to move the child's residence to Nova Scotia. 3. Ontario shall be deemed to be the child's habitual residence and this court shall retain jurisdiction over all issues with respect to custody, access and support. 4.

The Applicant shall advise the Respondent, Christopher Newby, immediately of her contact information including, her address, telephone number and email address and shall advise him of any change in this information within 24 hours of any such change.

5. Pending the case conference scheduled on October 8th, 2013, the parties shall arrange for the Respondent to have reasonable telephone and Skype access to the child. The Applicant will be permitted to participate in the case conference by telephone conference call to be arranged by the court. 6.

Costs reserved and to be addressed at the return of this matter. [ 5 ] Following that ruling, on November 12, 2013 after receiving cost submissions, Justice Zisman ordered that the father pay the costs of the mobility motion fixed at $14,000, inclusive of tax and disbursements, to the mother, to be payable within 30 days. [ 6 ] On March 14, 2014, the parties entered into a final consent with respect to the mother’s application, which allow the applicant mother to permanently relocate to Nova Scotia with the child, with specified access to the respondent father.

The respondent father intended to relocate to Nova Scotia in the future to be closer to the child. Under the consent, which was incorporated into a Final Consent Order of Justice Zisman, a detailed access

schedule was set out for visits between the respondent father and the child in both Ontario and in Nova Scotia pending the father’s relocation to Nova Scotia. [ 7 ] Paragraph 11 of the Final Order provided the following: “When [the father] moves to Nova Scotia or by January 1, 2016, whichever comes first, the parenting

schedule and financial arrangements will then be reviewed de novo in Nova Scotia. The parties agree that if the father moves to Nova Scotia, they will retain a mutually agreeable parenting mediator to assist them in formulating and appropriate parenting plan going forward.

The cost of the mediator will be shared equally by the parties and if the mediation is unsuccessful, either party may then commence proceedings in the Nova Scotia Court.” [ 8 ] It was understood by the parties and by Justice Zisman that paragraph 11 of the Final Order intended that the Ontario Court would retain jurisdiction to address any issues arising from the facilitation or enforcement of access to the child pending the father’s relocation to Nova Scotia or no later than January, 2016. A copy of the transcript of the settlement conference before Justice Zisman confirms this.

The transcript was obtained and filed as an exhibit in the motion before me on consent of the parties. [ 9 ] Regrettably, following the Order of Justice Zisman, the parties encountered numerous difficulties regarding the father’s access to the child in accordance with that Order. At the time of the motion before me, the father had not exercised access to the child for a number of months, either in Ontario or Nova Scotia. The applicant mother did not recognize the jurisdiction of the Ontario court with respect to these issues and commenced a simultaneous family law proceeding in Nova Scotia in September 2014.

The mother filed an application in Nova Scotia to vary the access provisions of Justice Zisman’s order. The court date in that proceeding was scheduled in the Nova Scotia Family Court in December of 2014. [ 10 ] The father’s motion before this court proceeded on December 18, 2014.

In his Notice of Motion dated November 13, 2014, the father sought two primary heads of relief: 1. that the Ontario maintain jurisdiction of the enforcement of the issue of access pending the respondent father’s relocation to Nova Scotia or January 1, 2016, whichever is sooner, in accordance with Justice Zisman’s Order; and 2. various orders relating to access schedules, including make-up access and a determination of an ongoing access schedule, including exercising access in Ontario and overnight access. [ 11 ] On December 18, 2014, for oral reasons delivered, I ordered that the Ontario Court of Justice retain jurisdiction with respect to access, until January 1, 2016 or when the father relocates to Nova Scotia, pursuant to the terms of Justice Zisman’s Order.

I further ordered that the remaining issues of the access schedules and costs, including exercising access in Ontario and overnight access were adjourned to January 12, 2015. [ 12 ] On January 12, 2015, following an interjurisdictional conference with the associate Chief Justice Wilson of the Nova Scotia Court, the courts in both provinces agreed to direct the parties to come up with a proposal or agreement regarding access between the father and his daughter within a two week period, pending the father’s relocation to Nova Scotia.

This conference was convened because notwithstanding the Justice Zisman’s Order, there were now simultaneous applications in two different jurisdictions proceeding. [ 13 ] On January 26, 2015, the parties returned before this court and entered into a consent arrangement for a further access

schedule and adjourned the matter to a further appearance before the court on June 1, 2015 to address the issue of further access, including birthday access at that time. [ 14 ] Since the last court appearance of January 26, 2015, the applicant father has exercised access in in Ontario and Nova Scotia, including overnight access. Additional access visits were arranged at the June 1, 2015 court appearance pending the father’s relocation to Nova Scotia. The Father’s Position on Costs : [ 15 ] It is the father’s position that he has been substantially successful in the motions before me with respect to both the issues of

jurisdiction and access. He submits that he has been forced to incur significant legal costs in order to enforce the access

schedule set out in the Final Order of Justice Zisman and to obtain confirmation that the Ontario Court of Justice had jurisdiction with respect to enforcement of the issue of access pending the father’s relocation to Nova Scotia. He submits that the applicant’s conduct in this proceeding has been unreasonable to the point of amounting to bad faith and has resulted in entirely unnecessary and excessive legal fees. The Mother’s Position on Costs: [ 16 ] The mother’s position is that she should also be awarded costs in this matter.

She submits that although she has not made any offers to settle, she has maintained a reasonable position throughout this proceeding and has attempted to coordinate access between the father and the child in accordance with Justice Zisman’s March 14, 2014 order. She submits that Justice Zisman ordered that access in Ontario would only take place once the respondent father provided proof at his home was safe for their daughter and that the respondent father did not provide that proof until October 2014. [ 17 ] The mother further submits that she had attempted to

schedule an Ontario visit between her daughter and the respondent father and that she had suggested a visit occur over Thanksgiving 2014 in lieu of the summer 2014 visit pursuant to Justice Zisman’s order. She further submits that the respondent father was not successful on the access that he sought to enforce or obtain in his motion and that his conduct has been unreasonable in this case. He failed to avail himself of opportunities to see the child when presented, for example, failing to book the Thanksgiving visit and failing to fly to Nova Scotia for Christmas 2014.

THE LAW AND GOVERNING PRINCIPLES: [ 18 ] Rules 18 and 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.” [ 19 ] 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) . [ 20 ] 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 full recovery 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). [21] 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. [22] 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. [23] 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. [24] I also agree with the comments by Justice Perkins in Biant v. Sagoo (ON SC), [2001] O.J.

No. 3693 (S.C.J.)that : “the preferable approach in family law cases is to have cost recovery generally approach full recovery, so long as the successful arty hasbehaved reasonably and the costs claimed are proportional to the issues and the result ...” ANALYSIS [25] On November 28, 2014, the respondent father served an offer to settle the issue of jurisdiction.

The offer was made inaccordance with the timelines under Rule 18, the offer was open for acceptance on the date of the motion, the mother refused to acceptthe offer, and the respondent was entirely successful in his motion as the Ontario Court of Justice retained jurisdiction in accordance withJustice Zisman’s Order pending the father’s relocation to Nova Scotia or January 2016. [26] Rule 18 clearly provides that where parties made an offer to settle with respect to a motion, that party is entitled to full recoveryof costs from the date the offer was made provided that the following conditions are met: a the offer is made at least one day before themotion date be the offer does not expire and is not withdrawn before the hearing starts see the offer is not accepted the party who madethe offer obtains an order that is as favorable or as more favorable than the offer.

All conditions were met here. [27] In my view it is clear that the respondent was entirely successful on the motion with respect to jurisdiction and he is entitled tosubtantial recovery of all legal costs and disbursements up to and including the December 12, 2014 appearance with respect to this issue. [28] In considering if a party acted reasonably, Family Law Rule 24 (5) directs the court to consider if a party made an offer to settle and the reasonableness of any offer to settle.

As has been held in other cases1, offers to settle are an essential part of family litigation andin my view it is unreasonable behaviour for a party not to make an offer to settle. [29] The applicant mother did not serve or file an offer to settle. The mother’s refusal to acknowledge the jurisdiction of the Ontariocourt, notwithstanding the Order of Justice Zisman made on consent of the parties, was unreasonable.

The court was also concerned thatthe mother’s decision to commence a second application in Nova Scotia (thus further increasing the complexity and the difficulty of theissues regarding access) may have been designed to circumvent the respondent father’s motion to enforce Justice Zisman’s access order.

It is certainly not disputed that significant costs were incurred in responding to the Nova Scotia application by the respondent’s counselin Ontario and in particular in ensuring that the court in the Nova Scotia jurisdiction did not find that the respondent father was in defaultin his response as he was seeking an order in the Ontario court to retain jurisdiction regarding access pending his relocation to NovaScotia or by January 1, 2016 pursuant to Justice Zisman’s order. [30] With respect to the respondent father’s motion to enforce access and the access that he sought in his motion, I agree with counselfor the mother that the father was not entirely successful with his proposed access schedule.

The father had not seen the child for eightmonths, partly through his own decision not to travel to Nova Scotia and partly through the applicant mother’s decision not to deliver thechild to Ontario in accordance with Justice Zisman’s order. The parties were finally able to resolve these issues on consent following theinterjurisdictional conference call between the Nova Scotia and Ontario courts.

The success on the issue of access was therefore clearlydivided. [31] In reviewing the applicant father’s bill of costs, I would grant substantial costs for the time spent in preparing and arguing themotion with respect to jurisdiction and for the time spent in addressing the application commenced by the mother in Nova Scotia for the

same relief notwithstanding the application and motion before the court in Ontario.

I would not grant costs to either party for the issues of access as I indicated success was divided and the parties were able to resolve these issues on consent. [ 32 ] I also consider the fact that the father has not paid the outstanding costs award made against him by Justice Zisman in the amount of $14,000.00 after the mother was successful on the temporary mobility motion. [ 33 ] Having carefully considered the bill of costs of both parties, in my view, a fair and reasonable award of costs to the respondent father should be fixed in the amount of $12,000.00, inclusive of taxes and disbursements, to be payable forthwith or no later than 30 days of the date of this Order.

ORDER : [ 34 ] I therefore make the following order: 1. The applicant mother shall pay to the respondent father costs in the amount of $12,000.00, inclusive of fees, taxes and disbursements, to be payable forthwith or no later than 30 days of the date of this Order. 2. These costs will be offset by the amount payable by the respondent father to the applicant mother, pursuant to the cost Order made by Justice Zisman on November 12, 2013. [ 35 ] I thank both counsel for their helpful written submissions in this matter. ___________________________ Justice Sheilagh O’Connell DATE: August 6, 2015