Court File and Parties

Court File No.: Brampton 1195/12 Date: 2013-11-27 Ontario Court of Justice

Between: Wayne Wright Applicant,

— AND —

Vilma Cox Respondent.

Before: Justice S.R. Clark

Ruling on whether the Court should change a Costs Order

Submissions heard on: November 18, 2013 Ruling released on: November 27, 2013

Counsel: Mr. M. Freeze for the applicant Wayne Wright Mr. D. Guidolin for the respondent Vilma Cox

CLARK, J.:

1:0 INTRODUCTION

[1] On December 21, 2012, the Court heard a motion by the respondent mother (the mother), dated November 16, 2012, to allow her to travel to England with the subject child, Lowell. The applicant father (the father) brought his own motion to dismiss it.

[2] The Court ordered that the mother could travel with the child provided there was a cash deposit paid into Court to address any of the risk factors which were raised in the motions. Both parties were represented by counsel at the time. Mr. Freeze represented the father, while Mr. Loftus Cuddy represented the mother.

[3] Term 2 of the December 21, 2012 order provided that counsel could file written submissions on costs within 14 days.

[4] The matter was otherwise adjourned to January 11, 2013 for a case conference/settlement conference.

[5] Written costs submissions were faxed by Mr. Freeze on January 4, 2013. An affidavit of service confirms that these were transmitted to Mr. Cuddy on behalf of the mother by fax on this same date.

[6] On January 11, 2013, the case conference/settlement conference did not proceed in any substantive way. The father and counsel Mr. Freeze were present, however the mother and Mr. Cuddy were not. There was no apparent explanation for the non-attendance. The Court was advised that Mr. Cuddy had apparently been on vacation. Mr. Freeze confirmed that he filed his materials on costs. No materials had been filed by Mr. Cuddy on behalf of the mother.

[7] In the circumstances, the Court determined, in fairness, that Mr. Cuddy should be given until January 31, 2013 to file same. This was set out in the Court's endorsement. Courts Administration was directed to fax a copy of same to both counsel. The endorsement also included a paragraph that the costs ruling would ultimately be prepared in written form and sent to counsel in due course. There was some indication by way of a note, dated January 3, 2012 (this was actually an error, in that it should have been 2013) that there was no contact number for Mr. Cuddy. However, it was further determined on January 11, 2013, that the necessary contact information for Cuddy was available.

[8] Subsequently, a representative of Mr. Freeze's office contacted the judicial secretaries' office by telephone on March 13, 2013, making an inquiry as to whether and when the Court would be providing its ruling on costs.

[9] Justice Clark then instructed one of the judicial secretaries to place a courtesy call, or otherwise email Mr. Cuddy to determine if he was still representing the mother and to determine if he was intending to submit responding materials on the costs application. The information received was that he was seeking a further indulgence to file by March 20, 2013. However, upon having the same judicial secretary contact Mr. Freeze to seek his position on the proposed extension, Mr. Freeze indicated that no extension should be granted.

[10] Accordingly, the Court proceeded on the basis of the materials only filed by the father.

[11] A costs order was made on March 20, 2013, ordering that the mother pay the amount of $2,000.00 inclusive of disbursements and HST to the father within 30 days.

[12] Case management of this file then continued on May 16, 2013 at which time, the mother appeared on her own behalf, advising that she was no longer represented by Mr. Cuddy, but was receiving some assistance from Ms. Guidolin. The father appeared with his same counsel. The matter proceeded as a combined case conference/settlement conference.

[13] Rather interestingly, upon reviewing the May 16, 2013 endorsement, no mention was made of the outstanding costs order.

[14] The matter was further adjourned to July 22, 2013 for a continuing settlement conference/motion for child support.

[15] On July 22, 2013 the matter was further adjourned on the basis that the Office of the Children's Lawyer was now involved in the matter. Again, no mention was made of the outstanding costs order.

[16] On September 27, 2013, the matter proceeded as a continuing settlement conference/motion for child support. At this time, the mother was represented by Ms. Guidolin. The pivotal issue discussed on this date related to access to the subject child. The only mention made of the costs order was to the effect that the mother was required to comply with it and that this would be the subject of further discussion on the next date, November 18, 2013.

[17] On November 18, 2013, the parties appeared with their counsel. Regarding the costs issue, Mr. Freeze submitted, quite simply, that the costs should be paid. Alternatively, he indicated that it could be enforced through the Family Responsibility Office as the equivalent of child support.

[18] Ms. Guidolin, on the other hand, made submissions on two points:

1. No formal order has been taken out as yet. It is only in endorsement form. Therefore, any appeal period has not started to run. Should an order be taken out, she will seek instructions as to whether the order will be appealed.

2. Pursuant to Rule 25(19)(e) of the Family Law Rules, she urges the Court to change the costs order. Her position is that the mother either had no notice at all, or inadequate notice. She was not properly informed by Mr. Cuddy. In any event, she submits that Mr. Cuddy was never formally on the record, and, therefore, any costs submissions submitted by the father ought to have been served on the mother directly. Because no materials were filed on her behalf, she was unable to put forward her position in relation to ability to pay any costs award. She submits further that Rule 24(11) sets out the factors to be considered when determining costs. Sub-paragraph (f) includes any other relevant matter. The Court stated in the March 20, 2013 costs order that one of the most common scenarios is a party's ability to pay a costs award, and that the Court cannot ignore the best interests of the child which could include the impact of a costs award against a parent. Therefore, the financial situation of the parties is a relevant factor. Since the Court had no evidentiary foundation on which to give any meaningful consideration to this factor, Ms. Guidolin submits that the Court should have heard, or at least should now hear what impact this would have on the mother.

2:0 ANALYSIS

[19] When taking a step back and looking at the chronology of events, in hindsight, it may have been more prudent for the Court to have granted a further indulgence to Mr. Cuddy to make submissions on costs, since the proposed timeframe was so short (March 13 to March 20). On the other hand, the Court is satisfied that Mr. Cuddy was well aware of the timeframes and was not taken by surprise in any manner. Therefore, he ought to have acted accordingly. Not only did he not file any written submissions on costs within 14 days of the December 21, 2012 order, but he was not in attendance on the next scheduled Court date, January 11, 2013. The only information the Court was given was that he was apparently on vacation. If this was so, he had a duty and responsibility to not only advise the mother of this, but to bring this to the attention of the Court in some meaningful and professional way, as an officer of the Court.

[20] In the result, the Court finds, although unfortunately for the mother but not unfairly, she cannot now claim that her lack of knowledge or notice was not her fault or problem. Furthermore, the Court finds that it is not open to her to claim that either Mr. Cuddy was not her legal representative formally on the record, and that she should have been served personally. For all intents and purposes, she was represented, and Mr. Cuddy held himself out as such. The father, through his counsel, complied with all of the necessary and appropriate steps to bring his costs position to the attention of the Court.

[21] Accordingly, the Court declines to entertain any change of the order.

[22] Since Mr. Freeze intends to take out the costs order, there will be only one other alternative available to the mother, should she wish to pursue this matter further.

[23] Otherwise, she is ordered to pay costs in the amount of $2,000.00 directly to counsel for the father within 30 days.

Released: November 27, 2013

Justice S.R. Clark