Court File and Parties
Ontario Court of Justice
Date: 2018-11-01
Court File No.: Halton 219/18
Between:
Sebastian Troeder Applicant
— And —
Winnie Troeder Respondent
Before: Justice Victoria Starr
Heard on: October 17, 2018
Reasons for Decision released on: November 1, 2018
Counsel
J. Hodgins — counsel for the applicant
J. DeMarco — counsel for the respondent
Decision and Reasons on Respondent's Request for Damages
VICTORIA STARR J.:
[1] The court heard two motions on October 17, 2018. Orders have been made with respect to all issues on those motions, except for two. This is the court's decision and reasons with respect to one of those. The other issue is costs. Submissions on that issue have yet to be made. Directions in that regard are given below.
[2] As part of her motion the respondent mother seeks reimbursement of expenses in the amount of $107,000, which she claims she incurred as a result of the June 25 and 27, 2018 orders. Counsel's submissions are set out in section F of her factum for use at the hearing held on October 17, 2018.
[3] Counsel relies on Rule 40.03 of the Rules of Civil Procedure, RRO 1990, Reg 194. This rule addresses the issue of damages payable on motions for interlocutory injunctions or mandatory orders. It directs that when a party makes such a motion he or she, unless a court orders otherwise, undertakes to abide by any order that the court may make if it ultimately appears that the granting of the order has caused damage to the responding party for which the moving party ought to compensate the responding party. That civil rule has no application to this case.
[4] Family law proceedings are governed by the Family Law Rules, O Reg 114/99, not the Rules of Civil Procedure. The Family Law Rules embody a philosophy peculiar to a lawsuit that involves a family (see: Frick v. Frick, 2016 ONCA 799 at par. 11). There is no rule similar to Rule 40.03 in the Family Law Rules.
[5] Subrule 1(7) of the Family Law Rules addresses the approach the court is to take when a matter is not covered in the Rules. It directs as follows:
Matters Not Covered in Rules
1(7) If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.
[6] Counsel for the respondent did not make submissions in this regard or on this court's jurisdiction to make the order she seeks. Rather, she asserts that the applicant breached the duty of candour owed by parties on ex parte motions. She asserts that he omitted vital information, mischaracterized the facts and situation, and otherwise conducted himself improperly. In doing so, she asserts that he mislead the court to such an extent that it made two orders that it would not otherwise have made. That misbehaviour cost the respondent a great deal of money to defend the motion and ultimately have the ex parte and subsequent consent order set aside.[1] This type of behaviour would certainly fall into the category of unreasonable behaviour and/or in bad faith.
[7] The Family Law Rules clearly address the consequences for such behaviour through the vehicle of costs. They contemplate that the court may make an order for elevated costs, to the point of full recovery. It may do so in the event that one of the parties had acted in bad faith or very unreasonably in relation to the issues on the motion or if appropriate, the case. The court has wide discretion in that regard, in light of the principles of reasonableness and proportionality (see Beaver v. Hill, 2018 ONCA 840 at par. 12 and 13).
[8] In any event and most importantly, the Ontario Court of Justice derives all of its jurisdiction to make orders from the governing legislation, regulations and rules, and the Courts of Justice Act, R.S.O. 1990, c. C.43. There is nothing in any of these that confers on it the jurisdiction to grant interlocutory injunctions, or mandatory orders, let alone award damages. I simply do not have the jurisdiction to grant the relief requested.
[9] Given this it is not necessary, let alone appropriate for this court to turn to analogy. The request for relief in the form of damages or punitive costs is dismissed. This dismissal is without prejudice to her right to seek recovery of those fees and expenses which properly fall within the scope of costs that the Ontario Court of Justice may award pursuant to Rules 24 and if applicable, Rule 18.
Order
The respondent's request for relief as set out in paragraph 10 of her draft order and specifically her request to be reimbursed for expenses incurred as a result of the June 25 and June 27, 2018 orders in the amount of $107,000, is dismissed without prejudice to her right to seek recovery of those expenses and fees which properly fall within the scope of costs that can be awarded under Rules 18 and 24 of the Family Law Rules.
If the parties are not able to settle the issue of costs of the motion and cross-motion, they shall do the following:
(a) Exchange their respective bills of cost within 15 days of the date of this order;
(b) The Respondent shall serve and file her bill of costs, any authorities she wishes to rely on and written cost submissions by no later than November 23, 2018. Costs submissions shall not exceed 5 pages (not including offers to settle, legal authorities relied on, and bill of costs), be in 12 point font or greater with normal margins, and not spaced less than 1.5.
(c) The Applicant shall serve and file his bill of costs, any authorities he wishes to rely on and written cost submissions by no later than December 7, 2018. Costs submissions shall not exceed 5 pages (not including offers to settle, legal authorities relied on, and bill of costs), be in 12 point font or greater with normal margins, and not spaced less than 1.5.
(d) Any written submissions the Respondent wishes to rely on in reply shall be served and filed by no later than December 21, 2018. These submissions shall not exceed 2.5 pages (not including any legal authorities relied on), be in 12 point font or greater with normal margins, and not spaced less than 1.5.
Court Operations is requested to return this file to me in chambers on December 24, 2018.
The Judicial Secretary is requested to email a copy of this endorsement to both parties via their counsel.
Released: November 1, 2018
Signed: Justice Victoria Starr
Footnote
[1] The subsequent order is that made two days later on the initial return of the ex parte motion. The applicant consented to that order but now asserts she had no real choice in the matter given the representation she had at that time, the short notice (less than two days), and her inability to access and gather the evidence she needed to support her position.