SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-12-18059

DATE: 20130328

RE: IP, Applicant

AND:

RI, Respondent

BEFORE: Czutrin J.

COUNSEL:
Esther L. Lenkinski, for the Applicant

Sheila Gibb, for the Respondent

HEARD: February 7, 2013 - Costs based on Written Submissions Received

ENDORSEMENT

[1] This endorsement deals with the issue of costs arising from a consent order made by me on February 7, 2013.

[2] Except for the contested adjournment I heard on January 24, 2013, I did not have to decide between the parties on the merits of the competing motions. I granted the Respondent’s request to adjourn and fixed a timetable for filing material.

[3] According to the Applicant/father, the Respondent/mother refused to negotiate regarding parenting issues unless the father agreed to the issue of costs of the motion being reserved.

[4] The mother submits that given the substantial costs to which the mother was put to by the father by, being short served the original motion, forcing the first attendance on January 24, 2013, making no offer to settle (or any proposal whatsoever) until the motion, and then settling on terms very similar to those proposed in the mother’s offer to settle, the mother is seeking her full costs of the motion, $22,376.83.

[5] The father request costs in the amount of $10,237.80 inclusive HST for the motion of February 7, 2013, on a full recovery basis.

[6] With the exception of the adjournment issue, it will be necessary for me to first establish success, consider offers to settle and whether there was any bad faith in order to determine costs.

[7] Both parties claim success on the motion, the mother submits:

That pursuant to Rule 24 (1) Of the Family Law Rules:

There is a presumption that a successful party is entitled to the cost of a motion.

On the competing motions, the mother was the successful party, s the parenting agreement arrived at on February 7, 2013 was very similar to her offer to settle, and that her offer and the parenting agreement was markedly different from the terms requested in the father’s notice of motion.

[8] The father puts his success as follows:

The father was substantially successful on the issues in the motion of February 7, 2013. He was successful in obtaining a schedule that granted him longer visits, including overnight visits with the child, the number of access exchanges per week was drastically reduced from 12 exchanges per week to six. The result also provided a reasonable, albeit temporary, solution the problem of who is to facilitate access exchanges.

[9] The father submits that while the number of hours parenting time proposed by the father’s motion, as compared to that suggested by the mother in her motion, could give the impression that the mother was more successful, such a comparison would fail to recognize what issues were primary and of urgent importance; specifically, reducing the number of access exchanges and providing a solution for who was to conduct exchanges.

[10] Father responding to the mother’s costs submissions points out that the father’s contempt motion and support motion have not been heard and they have been adjourned to June 24, 2013 and, therefore, it is improper to raise any costs associated with those outstanding motions.

[11] On January 24, 2013, I made the following endorsement:

Adjourned for February 7, 2013 at 10 AM on the issue of change of access and terms only for one hour (before me) if having read the material it will require a longer, I will set date on return.

I also set dates for return of financial and contempt issues.

[12] Reply on access only to be served and filed by February 4, 2013 at 10 AM. Any reply by February 6, 2013 at 2 PM.

[13] To put these motions into context the history of this case and the previous endorsements need to be considered and particularly Kruzick J.’s endorsement on June 27 and 29, 2012. The June 29, 2012 endorsement indicated that the parties were making efforts to reconcile and have entered into without prejudice and temporary minutes of settlement.

[14] That was the last court activity on this case until the father’s motion.

[15] The father served two motions returnable for January 24, 2013 on the mother’s counsel midmorning of January 22, 2013. The dates were not cleared with counsel and the time for service was short and contrary to the Family Law Rules.

[16] According to the mother despite the mother’s counsel being unavailable, and despite the alleged contempt, having been purged before the motion materials were, prepared the father refused to grant an adjournment without the mother’s agreement to certain conditions such as termination of support (despite the father failing to respond to request for financial disclosure sent by mother’s counsel two weeks earlier on January 8, 2013).

[17] I have reviewed the notices of motion dated January 21, 2013 prepared by the father. I note that with respect to the first notice of motion sought an abridgment of time for service and a finding of contempt against the mother with respect to the order of Kruzick J. dated June 29, 2012 with respect to a parenting schedule. The father also was seeking an order terminating the father’s obligation to maintain the expenses on the matrimonial home and terminating his support obligations. The notice of motion notes that the father is relying on affidavits sworn May 24 and 28, 2012.

[18] The father’s affidavit of January 21, 2013, without specifying a specific date deposed that until recently, the parties were attending marriage counseling and actively pursuing reconciliation. He also deposed that recently, the mother began denying him access to the child (last week). He claims that this was inconsistent with the without prejudice order of Kruzick J. dated June 29, 2012.

[19] He goes on to suggest that on January 3, 2013, he had his lawyer write to mother’s lawyer that he could not afford to continue to pay support and asked to discuss the issue of ongoing support. The without prejudice letter raised issues concerning finances and asked for reply by Wednesday of the following week.

[20] It appears that the mother on January 8, 2013 went to the police to make allegations about the father. This police spoke to the father on January 9, 2013 and he was asked to come in to speak to them about mother’s allegations. Father was cautioned by the police not to attend at the matrimonial home or be near the mother.

[21] On January 10, 2013 father’s counsel again wrote mother’s counsel stating that the mother had contacted the police and made false allegations against the father. As a result, she asked the mother to make arrangements for pickup and drop-off of the child at the father’s parents’ home. Mother’s counsel responded to father’s counsel on January 11, 2013, and suggested the father continue to attend at the lobby of the condominium for the exchange that would allow supervision of the access exchange by the condominium security as well as being videotaped.

[22] The father made the effort to try to see the child, but the mother was not t at the home for the exchange.

[23] Continued attempts at access appeared to have failed.

[24] When the father attended at the police station and January 14, 2013. He was charged with assault, sexual assault and threatening death. Pursuant his promise to appear the father was not allowed to be within hundred meters of the matrimonial home (the condominium).

[25] While there were some continuing discussions between counsel to arrive at access agreements by January 16, 2013, the mother offered to allow the father’s brother to pick up the child.

[26] According to the father, pursuant to the current schedule that child spends four hours with him every Monday, Wednesday and Friday and three hours on Tuesdays and Thursdays.

[27] His affidavit makes clear that he wanted to increase the time he has with the child. He also expressed concerns about the mother’s ability to care for the child.

[28] Commencing at paragraph 72 of the January 21, 2013 affidavit the father speaks to his financial situation and attaches a report from an expert concerning his income dated October 1, 2012. (This was a period of time where the parties were still allegedly pursing reconciliation efforts.)

[29] The father’s affidavit is 114 paragraphs long and contains 13 exhibits, including an expert’s report that run seven pages, and provides an opinion that shows income of the father from a projected low of $26,000 per year in 2012 to a high of $613,000 in 2010 and $419,000 in 2011.

[30] While it would appear that the parents’ reconciliation efforts have failed and allegations are flying, it is most unfortunate that rather than bringing the motions and cross-motions, that absent agreement given all that had transpired counsel did seek to return to conference the issues. Over six months had passed since they talked of reconciliation with Kruzick J.

[31] At minimum counsel should have cleared dates for return of any motions and agreed to adjournments and attempted to create a timetable for exchange of affidavits.

[32] The motions and cross-motions escalated the matter unnecessarily. Having the opportunity to meet in person with experienced counsel the parties were able to resolve a new parenting schedule.

[33] I was reminded that on May 30, 2012 I granted an order with respect to access by the father and exclusive possession by the mother and put restrictions with respect to travel.

[34] The matter was set to be returned before me on June 11 for an update on the status of the case in compliance with the terms of my May 30, 2012 order.

[35] When the parties returned before me on 11 June 2012, they agreed that I would be seized of all motions until the settlement conference and that they would attend a case conference and exchange financial statements later in the month.

[36] On June 27, 2012. The parties attended at a case conference before Kruzick J., and they both expressed a desire to reconcile. The mother’s affidavit contains the consent order reach before Kruzick J., which was ultimately issued by the court on 25 September 2012.

[37] The order provided that the parties were to attend marriage counseling with Dr. Fidler and made some changes to the parenting schedule.

[38] According to the mother, the attempted reconciliation began to fail in late December 2012 into early January 2013.

[39] On December 21, 2012 mother’s counsel wrote to father’s counsel confirming a four-way meeting that was held between the parties and their counsel.

[40] Of significance was the notation that the parties would still attempt to reconcile and will schedule numerous appointments with Dr. Fidler soon as possible. They appear to have also been in agreement with respect to a reduced support amount.

[41] The mother expressed surprise that while talking reconciliation the father was engaging the services of an expert to calculate his income. Correspondence between counsel confirms that they were interruptions in the parties’ marriage counseling.

[42] The mother now questions the father’s sincere commitment to reconcile and suspect that he wanted to gain litigation advantage by asking the mother to sign a marriage contract, postpone the date of separation seeking to strategically arrange his financial affairs and to structure his business interest to make it seem that he was doing very poorly to try to terminate temporary support arrangements and to try to move back into the matrimonial home.

[43] The mother’s allegations in paragraph 30 of February 3, 2013 affidavit, if true, are very concerning.

[44] She alleges that the father indicated to her that she had to be taught a lesson and that he would show her (gave several examples), lawyers would drag you case on for years and years. She alleged that no one will be interested and he will win.

[45] Correspondence between counsel makes it quite clear to me that that there were negotiations through correspondence between the parties as late as January 23, 2013, when mother’s counsel wrote to father’s counsel as follows: “We cannot agree to shorten the time for service of your materials.” Mother’s counsel advised that given the scope of relief sought on the motion and the fact that much information is located in India the proposed timeline was very short.

[46] The mother proposed many of the father’s family to deal with access exchanges.

[47] Father’s counsel indicated that they were prepared to agree to an adjournment to January 31, 2013, provided that respondent materialist were received by January 28.

[48] In the father’s reply affidavit of February 5, 2013 he concedes that the parties argued on December 21 (at a time mother alleges he made his threats) but suggests that the argument was not personal or vicious or as the mother alleges. He claims that the mother at that time emailed Dr. Fidler seeking further counseling appointments.

[49] He went on to say that he continued to speak to the mother until January 6, 2013.

[50] In all of the circumstances I do not find the motions were necessary or that counsel could not have agreed to a motion date, if settlement efforts failed,

[51] Given the short service and all that had transpired, it should not have come as any surprise that any judge would have granted an adjournment. There was no urgency to this motion. I would have considered requiring a further case conference based on what transpired. The father was seeking in effect a change in previous orders.

[52] The fact that the parties with their counsel were able to negotiate a consent order more in line with the offer to settle that was prepared by the mother dated January 30, 2013 and that no offer came from the father until February 6, 2013 leads me to conclude that the mother was more successful on the motion heard so far and that the father and her counsel should have agreed to the adjournment date without the without the necessity of the attendance. Time will tell. As to the sincerity of the reconciliation efforts and whether or not mother suspicions are correct or not, when credibility issues between the parties can be resolved by a full examination of the issues at trial (although it would be hoped that notwithstanding recent events that once full disclosure and questioning is completed might be able to settle.

[53] In the circumstances pursuant to the Family Law Rules the mother is entitled to costs as the more successful party and my conclusion that the motions were not necessary, dates should have been agreed to and the parties should have conferenced the issues if they could not resolve at a four way meeting as they did.

[54] The time allocated to the contempt motion is reserved to the motion for contempt and support. The Mother is entitled to full indemnity for the adjournment. The offer rule is not engaged and therefore no full indemnity for the motion heard to date. The father shall pay to the mother her costs of the motion (except the support and contempt motion, including any time related to those outstanding issues $10,000 inclusive of HST.

Czutrin J.

Released: March 28, 2013