Court File and Parties

COURT FILE NO.: FC-19-58093-00

DATE: 20191031

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Robin Allan McLean Brown, Applicant

AND:

Jennifer Laura Kagan (Brown), Respondent

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Mr. Elliot Vine, Counsel for the Applicant

Mr. Robert Karrass, Counsel for the Respondent

HEARD: In-Writing

ENDORSEMENT

Introduction

[1] On August 27, 2019, I released a decision regarding multiple motions brought by both parties: Brown v. Kagan (Brown), 2019 ONSC 5033.

[2] I indicated at para. 141 of the decision that the parties had divided success, and stated that if the parties could not agree on costs, submissions could be made in accordance with the procedure set out therein.

[3] The parties could not agree on costs and have made costs submissions. Neither side complied with the page limit set out in para. 141 of the decision. Rule 1(7) of the Family Law Rules, O. Reg. 114/99 requires all court documents to be legibly typed or printed. Rule 4.01 of the Rules of Civil Procedure, R.R.O., 1990, Reg. 194, sets standards for the legibility of court documents, and requires that court documents be double spaced and “the characters used shall be of at least 12 point” font. The Rules of Civil Procedure may be used as a guide to the interpretation of the Family Law Rules (Rule 1(7) of the Family Law Rules). Both parties filed submissions in 10 point font. Since I do not have a magnifying glass, I was not able to read most of their submissions.

The Motions

[4] The first motion was brought by the mother for:

i. An order for an assessment under s. 30 of the Children’s Law Reform Act;

ii. An order changing the parenting schedule set out in the January 24, 2018, decision by reducing the father’s 14 consecutive day summer vacation in July/August 2019 to two periods of no more than 7 consecutive nights, to be separated by at least 14 days;

iii. In the alternative, an order that neither parent be permitted to take the daughter for more than 5 consecutive nights;

iv. An order that if the father has 5 consecutive nights, the mother shall have 5 consecutive nights;

v. In the alternative, an order that neither parent have extended holiday time with the daughter until the completion of another s. 30 assessment;

vi. An order clarifying the commencement and end time of the father’s parenting time when there is no school or camp;

vii. An order that weekend parenting will alternate between the parties.

[5] The second motion was a cross-motion brought by the father for an order fixing dates for the 14 consecutive day summer vacation in July/August 2019 as required by the order of Gray J. dated January 24, 2018.

[6] The third was the “change school” motion brought by the father for:

i. An order de-registering the daughter from enrolment in Bialik Hebrew School for September 2019;

ii. An order prohibiting the mother from enrolling the daughter in any religious school;

iii. In the alternative, an order that the father have final education decision-making for the daughter.

[7] The mother’s motion and the father’s cross-motion were originally scheduled for one-hour on July 24, 2019. The father’s change school motion was originally scheduled for one-hour on August 14, 2019. On July 24, 2019, I ordered that all three motions proceed before me as a full day motion on August 7, 2019.

[8] In the result, the mother was unsuccessful with respect to items (i), (ii), (iii) and (v), partialy successful with respect to item (iv), and successful with respect to items (vi) and (vii).

[9] The father was successful with respect to his cross-motion, and unsuccessful with respect to his “change school” motion.

Positions of the Parties

[10] The mother seeks full recovery costs in the amount of $73,845. She argues that she served a favourable offer to settle on July 24, 2019. The offer was comprised of eleven substantive paragraphs, and indicated that “each paragraph is severable and may be accepted individually to narrow the issues”. The mother indicates that she has deducted from her costs those costs directly associated with the portion of the motion on which she was unsuccessful.

[11] The mother notes that her costs are substantially higher than the father’s costs because she has been represented by counsel throughout the motion, whereas the father was self-represented when he prepared the motion material and obtained counsel for the purpose of arguing the motion.

[12] The father argues that he was the most successful on the issues requiring the most time and expense, and seeks costs on a partial indemnity basis in the amount of $10,971 (60% of $18,286).

[13] In addition, the father paid $2,868.62 for the cross-examination and transcript of the cross-examination of Dr. Weiser, and he also seeks reimbursement for 50% of the fees related to the cross-examination.

Analysis

[14] Rule 24 of the Family Law Rules sets out the factors to be taken into account when the court exercises its discretion to award costs. Rule 24(6) provides: “If success in a case is divided, the court may apportion costs as appropriate”. Rule 24 (5) provides that the court may consider whether a party has made an offer to settle and the reasonableness of any offer the party made.

[15] Rule 18(14) sets out the costs consequences if a party makes an offer to settle and obtains an order that is as favourable as the order obtained. It provides:

(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.

[16] Paragraph 7 of the mother’s offer to settle, which deals with the clarification of the July 24, 2019 Order, and paragraph 8 of the mother’s offer to settle, which proposes alternate weekend access, reflect the orders made at paras. 62 and 69 of my decision, and the relief obtained by the mother is as favourable as the terms proposed in her offer to settle on these two issues.

[17] Paragraph 9 of the mother’s offer to settle, dealing with reciprocal summer holiday time, is somewhat consistent with para. 64 of my decision, but the relief obtained by the mother is not as favourable as the terms proposed in her offer to settle.

[18] The mother argues that the alternate weekend access was “the most important relief sought” and formed the most significant portion of the evidence before the court. While the provision of alternate weekend access was very important, it did not, by any measure, constitute the most significant portion of the evidence before the court. Alternate weekend access was granted because the mother had given birth to a child on May 21, 2019, and I determined that this was a material change in circumstances. This material change in circumstances was addressed in one paragraph of the affidavit material. It was not addressed in Dr. Weiser’s report, and Dr. Weiser’s report constituted the most significant portion of evidence and argument on the motion.

[19] While the father also made offers to settle, the father did not obtain an order that was as favourable as any of his offers. For example, although the father did obtain an order fixing dates for the 14 consecutive day summer vacation in July/August, certain adjustments were made to the mother’s weekend schedule to correct the resulting imbalance (see paras. 56 and 64). These adjustments, which favoured the mother, were not in the father’s offer to settle. Other parts of the father’s offer to settle were conditional on the mother agreeing to de-register the daughter from religious school, and the father was not successful on the “change school” motion.

[20] The mother argues that the father’s offers were made in bad faith because he indicated that he was prepared to compromise on some issues (eg. his 14 consecutive day vacation) if the mother compromised on other issues (eg. school registration). The mother argues that these are bad faith offers because the father’s willingness to compromise shows a lack of commitment to his position, which is evidence of his lack of sincerity and bad faith. In contrast, her refusal to compromise on any of her positions proves her commitment and good faith.

[21] Settlement usually requires that each side compromise their respective positions, and I do not accept the contention that a quid pro quo offer is indicative of bad faith on the part of the offeror.

[22] Given the divided success on the motions, my initial view would be that neither side should be entitled to costs. The mother was unsuccessful with regard to most of the relief she sought on her motion, and the father was unsuccessful with regard to most of the relief he sought on his motion. Their respective successes and failures were fairly evenly divided in terms of material filed, time allocated, and importance of the issues. This division is reflected in my Reasons for Decision.

[23] That said, certain parts of the mother’s offer to settle do meet the conditions set out in Rule 18(14). As indicated above, each paragraph of the offer was severable and could have been accepted individually to narrow the issues. As such, the costs consequences of Rule 18(14) apply with respect to paragraphs 7 and 8 of the offer to settle. This does not, however, entitle the mother to full indemnity costs for the entire motion, but only that portion related to paragraphs 7 and 8 of the mother’s offer to settle.

[24] While acceptance of paragraphs 7 and 8 of the mother’s offer to settle would have narrowed the issues, it would not, in my view, have significantly reduced the material filed or time required to argue the motion.

[25] Taking into account the principles of proportionality and reasonableness, and the proportion of the motion material and time dedicated to the issues dealt with in paragraphs 7 and 8 of the mother’s offer to settle, I award costs to the mother in the amount of $6,000, all inclusive.

[26] In my decision I found that the concerns raised in Dr. Weiser’s report were fully set out in her report that was filed with the Court of Appeal on February 8, 2019 (see paras. 52 – 55), and, as such, the information contained therein did not qualify as a material change in circumstances. While Dr. Weiser proved to be an independent and qualified expert, the cross-examination helped to confirm that there was no material change in circumstances from those considered by the Court of Appeal. In my view, the cross-examination of Dr. Weiser was both reasonable and necessary, and I agree that the costs of the cross-examination should be shared by the parties.

[27] The costs of the mother’s share of the cross-examination shall be set off against the costs awarded to the mother.

Clarification of Order

[28] The material provided with the costs submissions indicates that a dispute has arisen with respect to the proper interpretation of my Order dated August 27, 2019.

[29] Paragraph 140(h) of that decision states:

The father’s “March Break” will occur during the Passover Break in March/April, subject to the mother’s access on the first two nights of Passover in accordance with para. 13 of the January 24, 2018 Order, which in turn is subject to para. 15 of the Order dealing with holiday conflicts;

[30] The reasons for this Order are set out at paras. 107 and 108 of the Reasons for Decision.

[31] The purpose of this Order was to ensure that the father did not lose the one week of access granted to him by Gray J. in the January 24, 2018 Order. My point was that the intention of the January 24, 2018 Order was that access would occur during the spring break, and it did not matter whether the break began in March or April.

[32] The father has advised the mother’s counsel that he interprets my order as extending the length of the access, because the child’s new school has a longer spring break than the former school. His position is that my Order is for the entire spring break, which is two weeks at the new school.

[33] The mother takes the position that the January 24, 2018 Order was based on a one week spring break, and the point of my order was that the start date of the break was flexible, not that the length should be expanded.

[34] In my view there exists a bona fide disagreement between the parties as to the proper interpretation of the order and how it should be implemented. In such cases the Court retains jurisdiction to provide clarification where disputes arise with regard to the implementation of an order (see: Rule 59.06(2)(c) of the Rules of Civil Procedure).

[35] The intent of my Order was to ensure that the father’s one-week spring holiday access granted in the January 24, 2018 Order would occur regardless of the start date. No submissions were made with regard to extending the one week period contemplated by Gray J. in his January 24, 2018 Order, and it was not my intent to do so. I concluded only that the start date was flexible. I did not conclude that the length of time was flexible.

[36] I provide this clarification in the hope that the parties are spared another court appearance and additional expense.

Conclusion

[37] The applicant, Robin Allan McLean Brown, is ordered to pay the respondent, Jennifer Laura Kagan (Brown), costs in the amount of $4,566, all inclusive, within 30 days.

Justice R.E. Charney

Date: October 31, 2019