Court Information
File No.: D62326/13 Date: 2015-03-02 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1
Parties
Between: Farah Malik, Applicant (mother)
And: Kashif Javaid, Respondent (father)
Before: Justice Robert J. Spence
Arguments heard: 2 March 2015
Reasons for decision released: 2 March 2015
Counsel
Ms. Nilufa Husein ……………………..…..for Applicant mother
Ms. Maureen Bennett-Henry ……………..for Respondent father
Motion for Contested Adjournment
1This matter was set to proceed today, March 2, 2015, for a one-day trial on the issue of spousal support. The Respondent father (father) is claiming spousal support from the Applicant mother (mother). The mother has sole custody of the 9 year-old child of the relationship.[1]
2Today's trial date was set on consent of all parties when the matter was before me on November 28, 2014. As part of the trial management conference on that date, I ordered each party to file his and her evidence-in-chief by affidavit, together with documents appended to their affidavits, as exhibits. Each party would then be at liberty to cross-examine the opposite party.
3The mother filed her affidavit and appending exhibits, as required.
4The father also filed an affidavit. However, in his affidavit, he referred to "Exhibits" which were not part of his affidavit, presumably documents which had been earlier filed in one of the court's continuing records.
5The trial was set to commence at 10:00 a.m. The father did not appear. I waited until 10:30 a.m. and then asked counsel for submissions as to the next steps.
6Despite a number of requests by letter and email, father's counsel was unable to contact the father and has not had any contact with him since about January 22, 2015.
7Father's counsel[2] seeks an adjournment. In support of that request, counsel argues as follows:
When father last attended counsel's office to sign his affidavit, it was apparent to counsel that father was "incapacitated" and "not a well man". Thus, it is that incapacity, which the lawyer says he observed on January 14, 2015 which is the likely cause of father's non-attendance today.
Father is in desperate need of spousal support and it would be unfair to deprive him of the opportunity to present his case, given that the likely reason for his non-attendance is his own incapacity.
Fairness dictates that that an adjournment is granted for a period of about two months so that – perhaps – the father will be in a better mental state to attend court and be cross-examined on his evidence-in-chief.
8Mother's counsel submits that father's counsel does not have the expertise to argue father's incapacity before this court on an adjournment request. Opinions such as mental state and capacity can only be given by qualified experts. Neither of father's two lawyers[3] are qualified experts.
9Mother's counsel argues that fairness means not only fairness to the father, but fairness to the mother as well. She argues that she and her articling students have spent thousands of dollars in time preparing for today's trial; and to start all over again in two months' time would be something for which a costs order could not compensate, given the fact that the father is in receipt of social assistance benefits in the amount of about $600+ per month.
10Mother's counsel also submits that in any event a thrown-away costs order would be meaningless, pointing to the fact that my costs order against the father on June 25, 2014 in the amount of $3,500 remains entirely unpaid.
Discussion
11The court clearly has an obligation to be fair to both parties in deciding the request for an adjournment. In considering this request, one of the questions I ask myself – which was not answered by the father's counsel – is why is the father not present today? If the father's absence is due to his mental fragility, then why didn't he contact his lawyer days ago and advise her that he was in too fragile a state of mind to attend court. The father's lawyer could then have given the applicant a heads-up on this issue, prior to counsel's final preparation for trial.
12However, it is apparent to the court that father's lawyer was expecting the father to attend today. And because of that, she had no reason to alert Ms. Husein that her client would not likely be attending court today.
13The request for adjournment is based on a very impassioned plea about fairness to the father, particularly his need for spousal support in circumstances where he is incapacitated.
14The problem with this argument is that it presumes incapacity, when that is the very issue that was to be decided today following a trial. It is the father who asserts his incapacity as a basis for his spousal support claim.[4] The burden rested on father's shoulder's to establish his incapacity, as a precondition for seeking spousal support.
15Whether or not the father is incapacitated is the very issue that was before this court. For father's counsel to stand before the court today and argue that the father's non-attendance results from father's incapacity is circular.
16Furthermore, even making that argument is little more than guesswork and speculation on the part of father's counsel. There are other possible explanations for father's non-attendance today. Maybe father just changed his mind. Maybe he is no longer interested in claiming spousal support. Maybe he believed his claim for spousal support was so weak that it was not worth pursuing. These are all equally possible reasons for the father's non-attendance at the scheduled trial today.
17In making the plea for an adjournment, father's counsel pointed to father's strong "need" for spousal support. However, as I noted earlier, the father is in receipt of social assistance in the amount of about $600+ per month. His request for spousal support is in the amount of $450 per month. Even if his request were granted in full following a trial, the father would not benefit at all financially, because all of the ordered spousal support – up to the full limit of his monthly social assistance payments – would go directly to the government authority which is providing the social assistance to the father.
18Father's counsel argues, yes, while that is true today, if the father gets a job in the future he would then benefit from any spousal support order the court were to make. Again, this argument is speculative. On the one hand, father's counsel argues that father is so disabled that he cannot even come to court or call his lawyer to alert her to his disability. And yet, counsel now speculates that, perhaps, father might be able to obtain employment at some point down the road. Perhaps, perhaps not.
19Even if father were able to obtain employment, it is purely speculative to suggest that he would still be entitled to spousal support. At some level of income the father's employment would entirely take him out of the entitlement to receive spousal support, particularly in circumstances where the mother is the custodial parent.
20The argument about fairness to the father is more about fairness to the government authority which is responsible for making the social assistance payments to the father. While it is one thing for a claimant to make a spousal support claim when he or she is in receipt of social assistance, it is entirely another thing for the claimant to fail to attend court and then argue, through counsel, that fairness to that person necessitates the granting of an adjournment.
21The court must be mindful of the provisions of Rule 2 of the Family Law Rules. This Rule is designed to ensure that courts deal with cases fairly, where resources are devoted to cases "in ways that are appropriate to the importance and complexity" of those cases.
22There has been a huge expenditure of public funds in connection with father's claim. He has two lawyers working for him (at least for today). He is doubtless advancing his claim through a Legal Aid certificate. He fails to attend court and seeks a further expenditure of public funds through the granting of an adjournment. An entire day in court was set aside to deal with father's claim. And yet father is not present to pursue his claim. In effect, his modest financial circumstances insulate him from any sanctions whatsoever, including the payment of costs orders that this court has made, or might make in the future.[5]
23Were this court to grant an adjournment it would have to accept, at a minimum, that father's non-attendance today is due to circumstances beyond his own control, more specifically, a disability which not only prevented his attendance, but prevented him from even contacting his own lawyer to advise of his pending non-attendance. Quite simply, there is no evidentiary basis which would enable the court to reach that conclusion.
24Counsel's suggestion that the trial be adjourned for two months to allow the father to regain his mental strength, sufficient to allow him to attend trial to be cross-examined, is a purely speculative position to take. Again, it assumes father's non-attendance today is based on mental fragility beyond father's control; and it also assumes that over the next two months father will have recovered sufficiently to attend trial. This latter assumption is equally speculative.
25While the court takes no issue with the father's two lawyers for their strong plea for an adjournment, that plea cannot succeed, for the reasons I have outlined herein.
26The request for adjournment is denied. The father's claim for spousal support is dismissed.
27On an unopposed basis, the mother's claim for final sole custody is granted.
28Any subsequent change motion which the father might be inclined to bring, will require the leave of the court. As well, there will be a precondition that all outstanding costs orders are paid before leave is granted.[6]
Costs
29Following delivery of the foregoing reasons in court today, I then received oral submissions on costs. Mother's counsel stated that her actual costs expended were $20,000[7], based on 50 hours of time at her rate of $400 per hour. She is an 18-year family lawyer and I do not take issue with her hourly rate. While the 50 hours may seem a bit high, I am less concerned about the number of hours, given my following comments.
30In fact, counsel's request for a costs order was for 50% of her actual costs, namely, $10,000.
31Counsel did serve an offer to settle, seeking a withdrawal of the father's claim for spousal support. Father did not respond to the offer to settle; nor did he file an offer of his own.
32In the case of Scott v. Scott (2002), 113 A.C.W.S. (3d) 849, [2002] O.J. No. 1418, Justice Joseph W. Quinn had this to say (at paragraph 53):
A matrimonial litigant who does not serve an offer to settle either does not know the case or is engaged in hardball tactics; the former is inexcusable and the latter is expensive, where the tactics fail.
33I agree with, and adopt the reasoning of Justice Quinn on the facts of this case. For the father not to have responded to the mother's offer, for the father not to have submitted an offer of his own, is not acceptable in family law proceedings.
34In deciding the quantum of costs, the court must be mindful of the factor set out in clause 24(11)(f) of the Family Law Rules, which directs the court to consider "any other relevant matter". In considering this factor, I repeat my comments in Heuss v. Surkos, 2004 ONCJ 141, at paragraph 24:
However, in deciding this issue, I must have regard to Mr. Heuss' ability to pay. See, for example, the decision of Justice Craig Perkins in Biant v. Sagoo, Sagoo and Sagoo (2001), 20 R.F.L. (5th) 284, [2001] O.T.C. 695, [2001] O.J. No. 3693. I recognize that this factor alone cannot — nor should it — override the other considerations. Nevertheless, it is undisputed that the father is a very modest income earner and a person with few or no assets. In my opinion, an award of near-"full costs" recovery would be too onerous having regard to his income and his child support obligations.
35Were it not for the father's modest financial circumstances in this case, I would have been inclined to consider an award of costs closer to a full indemnification of costs incurred by the mother. However, even the request for $10,000 would be exceedingly difficult for the father to pay, particularly when there is an outstanding costs order in the amount of $3,500.
36Father has entirely mishandled this litigation, and wasted considerable resources – both mother's resources as well as institutional resources. Nevertheless, in my view, it would be inappropriate to impose an order greater than $6,500 in costs, in all the circumstances of this case.
37There will be an order for father to pay these costs, as well as the previously ordered costs of $3,500, for total outstanding costs in the amount of $10,000. These costs will be enforced by the Family Responsibility Office as child support.
38As I noted earlier, father will not be granted leave to bring a motion to change on the financial issues until he has paid those costs in full.
Justice Robert J. Spence
March 2, 2015
Footnotes
1Prior to today, that order was temporary only; however father's counsel advised that father was not opposed to a final custody order in favour of mother.
2A colleague of Ms. Bennett-Henry, from her office, also attended to make submissions in conjunction with Ms. Bennett-Henry's submissions.
3See footnote 2.
4An assertion which mother very much contests.
5See the comments following about costs in that section of these reasons.
6Including the costs order which follows.
7Exclusive the time spent by her articling student.