Bottoni v. Bottoni, 2012 ONSC 4812

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-07-14889
DATE: 20120823

RE: GUERRINO BOTTONI, Applicant

AND:
UMBERTA BOTTONI, Respondent

BEFORE: Justice Spies

COUNSEL:
Michele O’Connor, for the Applicant
Umberta Bottoni, Respondent in Person

HEARD: August 21, 2012

ENDORSEMENT

1The parties resolved all issues before the court in this matter by a comprehensive Separation Agreement dated March 22, 2012. This included a detailed joint custody/parenting plan that names Jan Schloss as the Parenting Coordinator (“PC”) and assigns her arbitraral authority for dispute resolution as necessary. The terms of the Separation Agreement required the parties to schedule their intake appointments by April 23, 2012 so that the PC would be in place to help them resolve future issues as they arose instead of a need to return to court. The Respondent Mother was represented by counsel at the time the Separation Agreement was entered into. Her counsel and the Applicant Father’s counsel had a joint telephone conference with Ms. Schloss after execution of the Agreement. The Father has taken all steps to retain and complete the intake questionnaire and process. The Mother has refused to comply despite letters to her former counsel and to her directly. As a result the Father has brought this motion requesting an order incorporating the terms of the parenting plan and an order that the Mother immediately complete the intake process with the PC and pay her share of the retainer in the amount of $3,250. Ms. Schloss had offered that the Mother pay this in two installments, although I do not know if that offer is still open.

2The Mother attended the motion without counsel. She declined my suggestion that she seek the advice of Duty Counsel. She stated that she had received advice with respect to the matter. She submitted that there has been a material change in circumstances to allow a variation of the Separation Agreement because of the lack of proper communication between her and the Father and the fact that she cannot afford Ms. Schloss as a PC.

3The Mother made some submissions suggesting that she had not been properly represented by her former counsel in the negotiation of the Separation Agreement and in particular that she was not made aware of the cost of Ms. Schloss. Whether she was or was not made aware of the cost, she had counsel and she executed the Separation Agreement. Any issue between the Mother and her former counsel, is not an issue that has been properly raised before this court.

4The Mother’s only other issue with respect to the order sought by the Father is her assertion that she cannot afford her share of the retainer of Ms. Schloss. The Mother, however, has not filed a further or an updated financial statement since her statement sworn September 26, 2011, nor has she provided any evidence of any change in circumstances. She has not proven any unanticipated change in her financial circumstances since the Separation Agreement was entered into. I therefore do not accept this submission.

5The Mother has also suggested that a different PC be appointed who would not be as expensive as Ms. Schloss and has provided two names to Ms. O’Connor. I understand that their hourly rate may be less than Ms. Schloss’ but they would still require retainers and Ms. O’Connor is not familiar with these people. I understand Ms. Schloss is an experienced parenting coordinator with arbitraral experience and training. She is the PC selected by the parties with the advice of counsel and I see no basis to vary the Separation Agreement in this regard.

6The parties went to considerable expense to negotiate a detailed Separation Agreement and parenting plan and on the evidence before me I have serious doubts as to whether or not the Mother ever intended to comply with it. In her responding affidavit dated August 7, 2012, she makes a number of allegations including her belief that the Father makes more money than he officially declares, that she has serious concerns about the joint custody arrangement that was agreed upon, that she has serious concerns regarding the care the Father has for Matthew when he exercises his parenting time, and asks in her affidavit, among other things, that the court grant her sole custody of Matthew on an interim basis and have the OCL appointed to conduct a custody and access assessment. In other words, the Mother wants to go back to square one. The purpose of the parenting plan of course was because the parents could not communicate.

7I am satisfied that the terms of the Separation Agreement, negotiated between the parties, both represented by counsel, are in the best interests of Matthew and as such an order will go in the form attached to the Father’s factum incorporating the terms of the parties’ parenting plan, requiring the Mother within seven days of this order to pay her share of the retainer to the Parenting Coordinator, Jan Schloss and that the Mother complete the intake process/questionnaire and sign all other documents forthwith and attend such interviews as are necessary by Jan Schloss. Order may go in accordance with draft order attached to Father’s factum and approval of the draft order by the Mother is dispensed with.

8The Father has been successful on this motion and is entitled to costs. Both parties submitted bills of costs. I note that the Mother provided a copy of a final statement from a lawyer who on a limited retainer assisted her with drafting her affidavit. For that service she incurred a charge of $2,000. This is further evidence that her position on this motion was not really about the cost of Ms. Schloss, but rather an attempt to resile from the terms of the Separation Agreement.

9The Father served an offer to settle the motion but in effect it provided that the Mother agree to the relief that he requested and that there be no cost consequences, provided she did so seven days before the return date of the motion. This was not an offer to compromise on any of the issues. Nevertheless the Father is entitled to costs on a partial indemnity basis. Given the factors set out in Rule 24(11), in my view a reasonable aware for costs is $3,000. Since by virtue of the terms of my order the Mother must pay her share of the retainer to Ms. Schloss within seven days, she shall have thirty days to pay this costs award, from the date of this order.