Court File and Parties
Court File No.: Brampton 65/10 Date: 2013-03-13 Ontario Court of Justice
Between: Naadira Mungal, Applicant
— And —
Darryl Shazad Mungal, Respondent
Before: Justice S.R. Clark
Amendment to the March 11, 2013 Ruling on Costs
Endorsement Faxed to Counsel on March 13, 2013
Counsel: Ms. Bonnie Caplan-Stroeder ............................ for the applicant Naadira Mungal Mr. Peter Dubas ...................................... for the respondent Darryl Shazad Mungal
1.0 Introduction
[1] On February 14, 2013, the Court made a temporary order for supervised access to the subject children by the respondent father.
[2] The Court invited counsel for both parties to submit written submissions on costs.
[3] The applicant was to have submitted same by February 28, 2013.
[4] The respondent father was to have submitted his submissions within 7 days thereafter, on or before March 8, 2013.
[5] The applicant's materials were faxed and received on February 28, 2013.
[6] No materials were received by the Court from the respondent by March 8, 2013.
[7] Accordingly, the Court faxed its ruling on costs to counsel on March 11.
[8] Subsequently, Mr. Dubas, counsel for the respondent, contacted the judicial secretaries' office to advise that he did fax materials on Wednesday March 6, 2013 at approximately 8:37 or 8:45 p.m. However, unfortunately, it appears that they were sent to a fax number which is not the one ordinarily used by the judicial secretaries. Accordingly, the materials did not come to the attention of Clark J. in time, or at all prior to the release of the ruling.
[9] Without going through the machinations, suffice it to say that Mr. Dubas endeavoured to comply with the timelines.
[10] The respondent's materials have since been re-faxed by Mr. Dubas on March 11, and have now been brought to the attention of Clark J.
2.0 The Issues
[11] The following issues must be considered:
Is the Court functus?
If not, is it in the interests of justice and fairness for the Court to now consider the respondent father's materials and re-visit the ruling made on March 11, 2013?
3.0 Analysis
3.1 Issue 1 – Is the Court Functus?
[12] On the Court's brief review of the Family Law Rules (the "Rules"), there is no definitive answer to this question.
[13] Rule 14(6)(a) appears to provide that a temporary order under sub rule 25(19) can be changed if it contains a mistake (25(19)(b)), or needs to be changed to deal with a matter that was before the Court but that it did not decide (25(19)(c)).
[14] However, it appears that two pre-conditions must be met. First, it must be a temporary order. Second, the Court can only make the change on motion.
[15] Therefore, on the face of things, it would appear that the only remedy by the respondent is to appeal the final order for costs.
[16] On the other hand, although the costs portion may be final, it pertained to a temporary order made by the Court for supervised access.
[17] Therefore, a "liberal" interpretation is to find that because the order to which costs pertains is only temporary, there is, as yet, no final order made.
[18] Furthermore, considering the other pre-condition that any effort to rectify a mistake must be brought on motion, this leaves room to allow the Court to bring its own motion, rather than requiring counsel to do so.
[19] All of that said, it is quite obvious that any reviewing Court would likely re-open this matter and ultimately allow the respondent to serve and file his materials on costs.
[20] Accordingly, this Court takes the view that it is not functus.
3.2 Issue 2 - Is it in the Interest of Justice and Fairness for the Court to Now Reconsider the Respondent's Materials and Re-visit the Ruling Made on March 11, 2013?
[21] Rule 2 provides assistance to this part of the exercise.
[22] The primary objective is to deal with cases in a just manner, which includes ensuring that the procedure is fair to all parties; saving time and expenses; dealing with the case in ways that are appropriate to its importance and complexity; and giving appropriate Court resources to the case while taking account of the need to give resources to other cases.
[23] The Court takes all of this to mean that the Rules should be construed to promote the most expeditious and least expensive determination of litigation, while recognizing the interests of both parties and the importance of the issues to the administration of justice as a whole.
[24] Accordingly, the Court finds that it is in the interests of justice and procedural fairness to now consider the respondent's costs materials and to re-visit the ruling made on March 11, 2013.
4.0 Conclusions
[25] This ruling represents a cautionary tale on two fronts. Whereas Mr. Dubas ought to have followed up by phone or email to satisfy himself that the materials, in fact, were received, the Court ought to have directed the judicial secretaries to follow up, as a reminder, and as a professional courtesy with Mr. Dubas on the deadline date (March 8) to inquire if he was intending to submit materials.
[26] The Court will now consider both parties' written submissions on costs and fax a revised ruling to counsel in due course.
Justice S.R. Clark