MacKenzie v. Newby, 2013 ONCJ 610

COURT FILE NO.: 324/13 DATE : November 12, 2013 Citation: MacKenzie v.

Newby , 2013 ONCJ 610 ONTARIO COURT OF JUSTICE RE: JAMIE DIONNE MACKENZIE – Applicant CHRISTOPHER HORACE NEWBY – Respondent BEFORE: Justice Roselyn Zisman COUNSEL: Harold Niman and Vanessa Amyot for the Applicant Karen Cunningham for the Respondent HEARD ON: Written submissions on costs Introduction [ 1 ] This decision relates to costs of a temporary motion by the Applicant (“mother”) to relocate the child, Krya Lynn MacKenzie born August 15, 2011(“Krya”) from the province of Ontario to the province of Nova Scotia. [ 2 ] Counsel for the mother originally served the motion returnable on September 16, 2013 and the father’s counsel hurriedly prepared responding materials.

Both counsel attended court that day, but the motion was not on the court docket. In any event, counsel attended before me and I determined that there was urgency and the motion would be permitted to proceed prior to a case conference. The mother was seeking permission to move by the end of September as her parents with whom she and Krya lived and upon whom she was dependent for financial and other support were selling their home and moving to Nova Scotia.

The motion was scheduled to be heard on September 27, 2013. [ 3 ] On October 2, 2013 I released my written decision and set October 8 th for an early case conference to deal with the issue of the father’s access. Upon reading the materials filed and hearing submissions, I advised the parties that I was prepared to permit the mother to move pending trial and would release my reasons. A date was also set for an early case conference to deal with the issue of the father’s access pending trial and costs submissions could be made that day.

The mother was permitted to participate in the case conference by telephone conference. [ 4 ] On October 2 nd , the mother’s counsel filed written submissions as to costs and father’s counsel subsequently filed her cost submissions. Position of the parties [ 5 ] The starting point in assessing costs in family law matters is Family Law Rules 24 (1) which provides that there is a presumption that a successful party is entitled to costs. [ 6 ] It is conceded that the mother was the successful party on the motion as she was permitted to relocate with Krya to Nova Scotia.

[7] Counsel for the mother submits that the mother is entitled to full recovery of her costs of $14,949 based on her success, an offerto settle being served and that the father acted unreasonably and in bad faith as did not provide full and frank financial disclosure. [8] Counsel for the father submits that costs should not be ordered on a full recovery basis but should be fixed at $5,000 payable inmonthly installments of $250. She submits that in a relocation case it is not unreasonable that the father did not serve an offer to settle asthe move is either permitted or denied.

It is further submitted that the father did not have the benefit of hearing a judge’s opinion aboutthe relocation at a case conference and that there was no deliberate failure by the father to make full financial disclosure. [9] Counsel for the father also takes issue with the reasonableness of the bill of costs submitted by mother’s counsel. Applicable legal principles [10] Rule 24 of the Family Law Rules, O. Reg. 114/99 provides guidance on costs in a family law proceeding. Rule 24 (1) sets outthe basic assumption that a successful party is entitled to costs.

Rule 24 (11) provides a further list of factors a court should consider indealing with costs: A person setting the amount of costs shall consider, a. the importance, complexity or difficulty of the issues; b. the reasonableness or unreasonableness of each party’s behavior in the case; c. the lawyer’s rates; d. the time properly spent on the case, including conversations between the lawyer and the party, 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. [11] In Serra v.

Serra 2009 ONCA 395 , [2009] O.J. No. 1905 at para. 8, the Ontario Court of Appeal confirmed that costsrules 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 behavior by litigants. [12] 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.. [13] I am also mindful that the court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legalfees. As was pointed out in Boucher v. Public Council (Ontario) (2004), (ON CA), 2004 CarswellOnt 2521, [2004]O.J. No. 2634 (Ont.

C.A.), the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay inthe particular proceedings rather than an exact measure of actual costs to the successful litigant. [14] In considering if a party acted reasonably, Family Law Rule 24 (5) directs the court to consider if a party served made an offer tosettle and the reasonableness of any offer to settle. [15] As I have held other cases[1], offers to settle are an essential part of family litigation and in my view it is unreasonablebehaviour for a party not to make an offer to settle.

I do not agree with the father’s counsel’s submission that because of the unique issueinvolved in a relocation motion that this precludes the necessity or utility of serving an offer to settle. For example, the father could haveproposed financial assistance to the mother or offered accommodations to her in this jurisdiction pending an early trial or he could haveagreed to permit the mother to move on condition that he not pay child support and/or setting out terms of his access.

If he had served anoffer to settle it is conceivable that access and the financial issues could have been resolved without the necessity of further courtproceedings. The father was aware of the mother’s desire to move as it had been discussed prior to the court proceedings beingcommenced and is specially requested in the mother’s application. [16] Counsel for the mother served an offer to settle on September 19th, in accordance with the conditions in Family Law Rules18(14).

If permitted to move, the mother offered to waive child support for three years, to permit the father to visit in Nova Scotia threetimes of year for up to one week and for Skype access. The mother offered to review the parenting

schedule and financial arrangements in three years and to waive costs if the offer was accepted prior to September 26th. [17] In accordance with Family Law Rules 18 (14) a party who serves an offer to settle, unless the court orders otherwise, is entitledto costs to the date the offer to settle was served and full recovery of costs from that date if the party who made the offer obtains an orderthat is as favourable as or more favourable than the offer. In this case, the only issue dealt with on the motion related to relocation and themother was permitted to move she is therefore presumptively entitled to full recovery of costs after the offer to settle was served.

Application of legal principles to the facts [ 18 ] As indicated, it is conceded that the mother was the successful party on the motion and that she served an offer to settle in accordance with Family Law Rules 18 [ 19 ] In determining the amount of costs, I have considered the following factors as set out in Family Law Rules 24 (11) as follows:

a) The importance, complexity or difficulty of the issues: The issue was of great importance to the parties as permitting the mother to move at this early stage of the proceedings will have a profound effect on the outcome of the case at trial.

b) The reasonableness of unreasonableness of each a party’s behavior in the case: The mother acted reasonably as she made an offer to settle and attempted to settle the motion on a reasonable basis including offering the father a financial incentive. I find that the father did not act reasonably in his failure to make an offer to settle. Further, despite the emotional issue of relocation and short timeline for hearing the motion, the father was aware for months of the mother’s desire to move.

The father and his counsel needed to assess the likelihood of success and should have considered that the mother had been the primary caregiver, the father was only exercising supervised access and the mother was financially dependent on her parents. I also find that the father acted unreasonably in not providing full and frank financial disclosure especially in view of the fact that the mother raised the issue in her affidavit that the father had the financial means to travel to Nova Scotia as he had received an inheritance and was living in an expensive home.

The issue of the father’s financial means to travel to Nova Scotia was a relevant issue as the father submitted that he had just lost his job and did not have the financial means to travel and if the mother was permitted to move with Kyra he would lose all meaningful contact with her. Although the father, in his costs submissions, now explains some of the terms of his inheritance and the terms upon which he is entitled to reside in his late father’s home, this should have been revealed earlier and his explanation and potential inheritance is still vague.

c) the lawyer’s rates: Mr. Niman is a senior family counsel and mother’s counsel does not dispute his hourly rate of $755 or the hourly rate of $280 for Ms Amyot based on her years of experience.

d) the time properly spent: It is submitted by mother’s counsel that the time spent preparing the motion materials by Ms Ayot is excessive, that the work done in not individually docketed for so it is difficult to ascertain exactly how much time was devoted to each item. It is also submitted that no fees should be awarded for the attendance on September 16 th as the motion did not proceed that day, that no effort was made to canvass the date in advance with the court and that the court permitted an adjournment.

It is also submitted that there is duplication between the work done by both counsel and that the father should not have to pay for emails between the mother and her counsel. By my calculations, mother’s counsel is seeking a reduction of about $8,700. I have reviewed the bill of costs submitted and in view of the importance of the motion I do not agree that the time spent was excessive. Although there is some time spent by Mr. Niman reviewing the materials and discussing the case with Ms Ayot almost all of the work was done by her at a considerably lower hourly rate. I also note that although Mr.

Niman and Ms Ayot were both in attendance on September 16 th and 27 th and despite the fact that Mr. Niman made all of the submissions on both dates, only Ms Ayot’s time is charged at her hourly rate. I see no reason that the attendance on Sept 16 th is not properly subject to costs, as frequently when there is an urgent motion counsel simply attend and ask the court’s indulgence to be heard. The fact that the motion was adjourned was to accommodate the court’s

schedule and to provide father’s counsel with more time to prepare a further response. Further, I see no basis for discounting the time spent to receive emails or other correspondence between counsel and the mother as this is the usual means of counsel receiving instructions or reviewing materials with a client. In

summary, I find that the time spent and the manner in which the times were allocated and billed between counsel to be reasonable.

e) the expenses properly paid or payable: Expenses of $1,203.42 are claimed that include the usual disbursements for photocopies, couriers and process service fees. Father’s counsel submits that the process server fees of a total of $585 are unusually high even if the charge was for rush service and that no bills were produced. Although normally disbursement bills are not necessary if there is an unusual charge then it is better practice to attach a copy of the bill or provide an explanation. I agree that the father should have to be responsible for a taxi fare of $360 for travel by counsel to Milton.

I would reduce the disbursement account by the taxi fare and half of the process service bill.

f) Other relevant factors: It is submitted that the court should consider that the case had not yet been case conferenced when the motion was heard and the father did not have the benefit of hearing a judge’s opinion on the merits. Although I appreciate that it would have been preferable for the case conference to be held before a contested motion, this does not absolve the father from making a realistic assessment of the merits of his position based on the facts of this case and the case law. Having not done so, he cannot now claim he should not be responsible for the mother’s legal costs.

It is also submitted that the father does not have the financial means to pay a substantial order of costs as he recently lost his job and he

has not yet received his share of his inheritance from his father’s estate. These are considerations that the father should have considered when he chose to contest the mother’s relocation. He cannot now use his lack of financial resource or the financial hardship to shield him from an order to pay the mother her full recovery of costs.

I have considered that the mother also has very limited financial resources [ 20 ] In considering all of these factors, I find that the mother is entitled to close to full recovery of her costs as she served an offer to settle and she was successful on the issue argued on this motion regarding relocation. I find that a fair and reasonable amount of costs is $14,000 payable within 30 days. I am not prepared to make an order for monthly repayment as I find that the father has not been forthright about his financial affairs or his inability to pay a lump sum.

Order as follows: [ 21 ] The Respondent, Christopher Newby shall pay to the Applicant, Jamie MacKenzie costs fixed at $14,000 inclusive of disbursements and applicable taxes within 30 days. ___________________________ Justice Roselyn Zisman DATE: November 12, 2013