Court Information

Court: Ontario Court of Justice Location: 491 Steeles Avenue East, Milton, ON L9T 1Y7 Date: November 14, 2017

Parties and Counsel

Applicant: Tyler Pyne Counsel for Applicant: Rollie Willis Q.C.

Respondent: Tessman Cawood Counsel for Respondent: Lisa R. Baumal

Heard: In chambers

COSTS ENDORSEMENT AND ADDENDUM TO OCTOBER 17, 2017 ENDORSEMENT

Introduction

[1] The respondent mother seeks her full indemnity costs of the motion argued before me on October 10, 2017, fixed at $12,650.47. The applicant father argues that no costs should be ordered.

[2] On October 17, 2017 I heard the parties' arguments in this motion. At the conclusion of their argument, I assisted them in coming to an agreement regarding ongoing access. I incorporated the parties' verbal consent regarding access into the mandatory terms of my endorsement. I also ordered the applicant father ("the father") to pay the respondent mother ("the mother") prospective and retroactive table and s. 7 child support. I ordered the father to maintain certain extended health insurance benefits for the children and that he provide the mother with certain disclosure.

[3] For the reasons that follow, I fix costs of this motion and the preceding case conference (in which costs were reserved) at $10,000.00, payable within 60 days.

Positions Taken by the Parties at the Motion

[4] The key issue argued by the parties was the father's income for support purposes. The father asked the court to base his child support obligations on an income of $48,000.00 per year. The respondent asked the court to impute income of $197,941.00 per year to the father. I based his support obligations on an imputed annual income of $164,927.37, a number far closer to that of the mother than the father.

[5] I also ordered that the father pay $1,145.29 in retroactive support. That figure is net of the amount that I found that the father owed in table child support less the amount of total child support that he had paid to date. In addition, I ordered that he pay the mother retroactive and prospective s. 7 daycare expenses proportionate to income (with the parties being entitled to argue the exact quantum by 14B motion if they were unable to agree).

[6] The ancillary support issues revolved around the date that the support payments would start and disclosure. I granted the mother retroactive support going back to the commencement of this proceeding and the disclosure she requested. I also granted the father disclosure that he requested.

LAW REGARDING COSTS

Jurisdiction to Award Costs

[7] 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.

[8] 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. O. Reg. 114/99, r. 24 (4).

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 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.

General Costs Principles

[9] As the Ontario Court of Appeal noted in Serra v. Serra:

Modern costs rules are designed to foster three fundamental purposes: (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: Fong v. Chan (1999), 46 O.R. (3d) 330, at para. 22.

[10] 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."

[11] In the recent decision of Shute v. Shute, Justice Victoria Starr of this court identifies a fourth purpose of costs in family law proceedings. It is to ensure 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 states that parties have a positive obligation to help the court to promote the primary objective under the Rules. Clauses 2(3)(a) and (b) of the Rules 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

[12] In H.A. v. M.M., Justice Stanley Sherr of this court stated that "[c]onsideration of success is the starting point in determining costs."

[13] In Mantella v. Mantella, 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 substantial indemnity of their costs. There remains, however, significant discretion to award the amount of costs that appear just in all the circumstances, particularly after taking into account the various factors set out in Rule 24(11).

[14] In Lawson v. Lawson, Justice J. Wilma Scott of the Superior Court of Justice stated that any determination of success "…must take into account how that order compares to any settlement offers made."

Offers to Settle

[15] 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 her lawyer, 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.

[16] 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 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.

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 the benefit 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 its terms, even if subrule (14) does not apply.

[17] In Serra, the Ontario Court of Appeal emphasized the obligation to attempt to settle that arises from the very beginning of a family 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 party simply to sit back and to roll the dice while those fees continue to mount. [Emphasis added by Ontario Court of Appeal]

[18] 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 behaviour under 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 parties and their lawyers to promote the primary objective of the rules to deal with cases justly (subrule 2(2)). This includes taking appropriate steps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute. See Laing v. Mahmoud, 2011 ONSC 6737. The failure to serve an offer to settle will be an adverse factor when assessing costs."

De-Emphasis on Time Spent to Determine Costs

[19] 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.

Party Status Does Not Grant a License to Litigate Oblivious to the Consequences

[20] 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 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

[21] 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), 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.

[22] 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."

[23] 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.

Scale of Costs

[24] In Biant v. Sagoo, 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 successful party has behaved reasonably and the costs claimed are proportional to the issues and result."

[25] In MacDonald-Sauer v. Sauer, Justice James Turnbull of the Superior Court of Justice endorsed the approach of Perkins J. 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 long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the results. Where the Rules leave a 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's behaviour, the extent to which there is divided success, test the amount against the factors listed in Rule 24 (11) and then look at factors such 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

[26] That principle was affirmed by the Ontario Court of Appeal in the 2015 case of Berta v. Berta and again in the 2016 case of Forrester v. Dennis.

[27] In Sordi v. Sordi, 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 substantial indemnity.

ANALYSIS

[28] The mother's main arguments are that she was largely successful and that the terms of my order (particularly regarding support) were more favourable to her than the terms of her offer.

[29] The father asks that I order no costs. He argues that he acted reasonably by offering to enter mediation before the litigation started and only commenced this proceeding after the mediation failed. He also points out that the mother's two offers came only five days before the motion was heard, days that included a long weekend. He says that he made full and costly disclosure other than two documents whose font was too small to read. He adds that he paid child support without being required to do so by an order.

[30] I generally but not entirely agree with the mother.

Success

[31] The first consideration is success. In that regard I consider both the positions taken by the parties during the argument of the motion and later in this decision, their success as measured by the offers that each made to the other.

[32] Here success was somewhat mixed but far closer to the position taken by the mother than the father. I say that because:

a. The key issue argued by the parties was the calculation of the father's annual income. I based temporary child support on an annual income figure of $164,927.37. That was far closer to the mother's $197,941.00 figure than the father's $48,000.00 per year number. This income figure effectively determines both table support and s. 7 expenses.

b. I granted temporary child support retroactive to the date that this proceeding was commenced. The father asked that no retroactive support be ordered. He argued that the issue should be left to trial. I did not grant that request.

c. I granted further disclosure to the mother in the form that she requested. The father argued that he had no further disclosure obligations. I also granted the father some disclosure that he requested and that the mother did not contest.

d. Regarding access, there was strong disagreement between the parties as the mother wanted the father to exercise more access time than he was prepared to utilize. There was also a disagreement about the days in which the father would exercise his weekend access. However, and with my assistance, they reached an agreement as to the terms of regular access following the argument of the motion. That agreement echoed the father's request for less access than the mother was willing to offer.

e. The parties disagreed about the father's obligations to inform the mother about events that take place during access. In the end, I ordered terms that were somewhat between the positions of the parties. I obliged the father to inform the mother, but did not require him to provide as much information as she had requested.

Offers to Settle

[33] Each party made two offers to settle temporary issues. The father's offer of July 17, 2017 was described as a partial offer and dealt with access only. His second offer, dated October 2, 2017, dealt only with prospective s. 7 expenses. Both of the father's offers were made "with prejudice". The father's counsel referred to each during his argument, as the offers aligned with the position that the father took during the motion.

[34] The father did not make a formal offer to settle table support although he was paying support at an amount that he unilaterally chose. That amount was below the table amount that I ordered him to pay (not even considering his obligation to pay his share of the children's daycare expenses).

[35] The father's support offer was based on an annual income of $48,386.00. It included no reference to retroactive support. He took the position that he required more documentation to make any binding offer regarding daycare expenses. His offer instead called for more information from the mother regarding her net daycare expenses. Only then, he said, could he make a calculation based on his view of their incomes for support purposes. In any event, his offer called for him to pay only about a third of the children's net daycare expenses. I rejected that position in ordering him to pay 73% of s. 7 expenses retroactively and 61% prospectively.

[36] The mother offered to accept support based on an annual income of $104,159.00 and that child support be retroactive to January 1, 2017. I ordered that the father pay child support based on an income that was over $60,000.00 per year higher than the amount in the mother's offer. I ordered that support be retroactive to March 1, 2016. I ordered that the father pay daycare expenses at a percentage greater than the one contained in the mother's offer to settle.

[37] Each parent made a separate offer regarding access issues. The parties ended up arguing the access issues on October 10, 2017. The terms that they agreed upon following the argument of the motion were far closer to the father's offer than that of the mother. But that is only because he wanted less access than she offered. The mother conceded that I could not force him to take more access than he wanted.

[38] I also ordered the father to provide information to the mother following access, which she requested. But I did not order him to provide as much information as she requested in her offer.

Importance, Complexity or Difficulty of Issues

[39] The issues in this motion were of no greater importance, complexity or difficulty than most interim support and access motions. The issues were by definition important to the parties. But they were not unduly complex or difficult for two experienced counsel.

Unreasonable Behaviour

[40] The father's position regarding his income was unreasonable. He sought far more deductions than he was entitled to claim. As a result, he claimed an income that was less than 1/3 of the amount I attributed to him.

[41] For her part, the mother sought to grant the father a fair bit more access than he was seeking. That discrepancy should have been obvious from the father's notice of motion and offer to settle, both of which were served before the mother brought her motion.

[42] While the mother took her position on the father's access time in good faith, and assumed a position that would be considered very reasonable in most cases, that was not the case here. The father, for reasons of his own, prefers to spend his time in a manner that does not maximize his access time with his children. The mother was aware of this fact but chose to offer more access than he wanted anyways. Time was unnecessarily expended arguing and settling access issues before me.

[43] That being said, I do not intend to severely penalize the mother for taking a position that would be reasonable in most other cases.

Bad Faith

[44] The mother claims that the father's behaviour in this litigation was not only unreasonable but that it was actually in bad faith. Yet she failed to articulate a reason to take that latter position. The father makes no such argument about the mother. For my part, I see no evidence of bad faith from either party in regard to the issues before me. I may have felt otherwise had the father continued to refuse to provide the mother with his address despite a request for access.

Time Properly Spent on the Case

[45] I have reviewed Ms. Baumal's bill of costs. Mr. Willis raised no objection to its contents. If I were to have granted full indemnity costs for both the case conference and the motion, I would have found her bills of costs to be reasonable and proportionate to the amounts in question.

[46] While I note that a request is made for costs of the case conference as well as the motion, FLR r. 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 give any directions that are needed.

[47] FLR r. 17 can be read in conjunction with:

(a) 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

(b) FLR r. 24 (10), which calls for costs to be determined promptly and summarily after each step in the case.

[48] 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. 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.

[49] 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.

[50] 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:

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.

[51] Here the parties agreed that the costs of the case conference would be adjourned to the motion. Further as the case managing judge who conducted both the case conference and the motion, 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. Saying that though, I note that I did not refer to any reason to order costs against Mr. Pyne in my endorsement for the conference.

CONCLUSION

[52] Here, in comparison to her offer, the mother enjoyed complete success on the financial issues. Those issues consumed the majority of time of both the conference and the motion (as well as the parties' materials). There was mixed success regarding access. While access is always important, here it was secondary to the main contested issue of child support. The mother has generally behaved reasonably, particularly regarding financial issues. The case conference should have assisted to resolve or narrow the issues, but it did not do so. The parties agreed that I would consider the costs of that conference in the context of the contested motion.

[53] At the end of the day, in considering all of the above, I am called upon to arrive at a figure for the conference and motion that is fair and reasonable for Mr. Pyne to pay to Ms. Cawood. In all of the circumstances I find that an order that he pay her costs, fixed at $10,000.00 and payable in 60 days meets that requirement. I so order.

ADDENDUM TO MY ENDORSEMENT OF OCTOBER 17, 2017

[54] Following the release of my endorsement of October 17, 2017, Ms. Baumal contacted the court directly (and in the absence of Mr. Willis) to complain that my endorsement contained errors. Following my direction, my judicial secretary, Ms. Jazvac, instructed Ms. Baumal to write to the court and Mr. Willis with her concerns.

[55] Ms. Baumal wrote to the court on November 1, 2017. She stated that I made three mistakes in transcribing certain terms agreed upon by the parties or cited elsewhere in my endorsement into the endorsement's final, operative paragraph. She asks me to change the terms of my endorsement under FLR r. 25(19)(b). That sub-rule allows the court, on motion to change an order that contains a mistake.

[56] Ms. Baumal stated that I transposed the agreed upon return time for Elle following alternate weekends from Sunday at 8:30 a.m. to 8:30 p.m. She continued, stating that I neglected to include an agreed upon week of uninterrupted access each summer. She also stated that I neglected to include the disclosure terms set out in par. 74 of my endorsement in the terms of the order set out in par. 75. Those terms require certain disclosure from the mother.

[57] Mr. Willis responded on November 3, 2017. He stated that he believes that my earlier endorsement is not in error. He wrote that, based on his recollection and that of his client, "… no consent was reached with respect to the issue of access and for that reason it was necessary for Your Honour to make an order with respect to that issue." Mr. Willis went on to make an offer to resolve the issues. He added that "… Ms. Baumal is asking the court to revisit or reopen the case or to allow the court to hear an appeal of its own decision."

[58] I point out that Mr. Willis should not have been making settlement offers in a letter to the court. In fact, ordinarily any issues regarding potential errors in my endorsement should have been the subject of a motion pursuant to r. 25(19) rather than an exchange of correspondence addressed to the court.

[59] However I invited Ms. Baumal's letter in light of the unusual reasons that follow. Because of them, I am willing to consider whether my endorsement of October 17, 2017 should be amended under FLR r. 25(19)(b) on my own motion. I do so because:

(a) I was appointed to the Superior Court of Justice following the release of my October 17, 2017 endorsement;

(b) Under s. 123 (2) of the Courts of Justice Act, I may give a decision or participate in the giving of a decision in any matter previously tried or heard before me within 90 days of my appointment;

(c) I am not functus;

(d) FLR r. 2(2) states that the primary objective of the FLR is to enable to court to deal with cases justly. The court, parties, and counsel are required to promote the primary objective of the FLR. Under FLR 2(3)(b) and (c), dealing with cases justly includes saving time and expense and dealing with a case in ways that are appropriate to its importance and complexity;

(e) Under FLR r. 1(7.2) I am entitled to make a wide variety of procedural orders for the purposes of promoting the primary objective of the FLR. Those procedural orders are not limited to the list set out at FLR r. 1(7.2); and

(f) I can summarily decide the issues raised by Ms. Baumal's letter.

[60] In the course of preparing this addendum, I have listened to the recording of the argument of the motion, reviewed my previous endorsement and considered the correspondence received from counsel.

[61] I note that the parties did not originally agree on access terms. Instead, following argument of the motion on October 10, 2017, Ms. Baumal sought to offer a "reply" to Mr. Willis' reply arguments. Ms. Baumal indicated that her client agreed to accept some of the diminished access terms requested by the father. With my assistance, the parties orally agreed on terms for mid-week and weekend access. It was left to me to include those terms in my endorsement.

[62] Upon reflection, I should have required the parties to set out any access agreement in writing. I believe that to be the better practice.

[63] The agreed upon access terms were set out in par. 75 (7) (a) and (b) of my October 17, 2017 endorsement, with one exception. As Ms. Baumal noted, my endorsement transposed Elle's Sunday morning return time from the agreed upon 8:30 a.m. to 8:30 p.m. That was a typographical error. The last sentence of paragraph 75(7)(b) of my earlier endorsement should have read:

Elle will be returned the following Sunday at 8:30 a.m.

[64] I point out for Mr. Pyne's benefit that the 8:30 a.m. return time for Sunday mornings was agreed upon because it precedes the time that he begins his martial arts teaching. There was no agreement (or request) to return that child at 8:30 p.m. Her bedtime precedes 8:30 p.m. My endorsement should be amended to refer to the Sunday return time at 8:30 a.m.

[65] With regard to summer access, Ms. Baumal stated during the course of argument that her client agreed to the one week of summer access set out in Mr. Pyne's draft order. But that draft order actually called for one week of access to both children during August, 2017. By the time the motion was argued, that time had passed.

[66] At one point at the beginning of her argument, Ms. Baumal submitted that Mr. Pyne enjoying one week of uninterrupted access to both children each summer was "fine". This concession, however was conditional and subject to a further proposal. Her client would also have to be entitled to a similar uninterrupted summer week with the children.

[67] Ms. Baumal further proposed that the summer weeklong dates be exchanged. In the event of conflict, her client would choose her week in even numbered years and Mr. Pyne would do the same in odd numbered years.

[68] This two terms described above amounted to a proposal made in the course of argument of a motion. It was not an agreement. Mr. Willis did not respond to the proposal. Thus there was no agreement.

[69] For those reasons I find that I did not err in failing to include an allegedly agreed upon summer access term in my earlier endorsement. There was no meeting of the minds on the terms proposed by Ms. Baumal. That is why I stated at paragraph 75(7)(d) of my endorsement:

If the parties are unable to agree on Christmas and other holiday access, they may schedule a date to appear before the court to resolve the issue.

[70] With regard to the third point raised by Ms. Baumal, I referred to the mother's disclosure obligations in par. 74 of my endorsement. I wrote at the end of that paragraph that she:

… shall provide the father with all details and documentation with regard to any future profit sharing program from her employer. [emphasis added]

[71] If the mandatory aspect of that term of my endorsement is not clear (and I note that Mr. Willis did not complain about its absence in par. 75 of my endorsement), I again make clear that the term set out above is mandatory and should be included in the order based on my endorsement of October 17, 2017.

November 14, 2017

Justice Marvin Kurz