SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-10-359870

DATE: 20130423

RE: Alexandra M. Wentges, Applicant

AND:

Peter Nazir Faiz, Respondent

BEFORE: Czutrin J.

COUNSEL: Karen Ballantyne, for the Applicant

Reesa Heft, for the Respondent

HEARD: Written Submissions on Costs

ENDORSEMENT

[1] This endorsement deals with costs arising from my endorsements of March 12 and 13, 2013 dealing with the Applicant’s motion for a temporary order for custody, child and spousal support.

[2] The Applicant seeks costs of $12,000 and that I also find that 50% of the costs relate to support to allow for enforcement by the Family Responsibility Office (FRO).

[3] The Respondent submits that no costs should be awarded.

The Applicant’s Position on Costs

[4] The Applicant’s motion was originally scheduled for January 22, 2013 and original material served on January 14, 2013.

[5] Starting in June 2012, Applicant’s counsel sent letters attempting to resolve the matters at issue.

[6] The Respondent did not respond, instead unilaterally reduced support. The Applicant suggested mediation to resolve the parenting issues.

[7] In response to the Applicant’s motion, the Respondent served a request for information dated February 1, 2013, and served a cross-motion seeking to adjourn the motion to a date after a case conference.

[8] The motion resulted in a consent disclosure order and an order for appraisals by each party of their respective properties.

[9] The Applicant submits the result of the motion:

a. Respondent’s request for adjournment was denied.

b. Disclosure and appraisals were ordered.

c. While not ordering custody, I allowed the mother to take the child to counseling.

d. The Applicant’s request for an interim parenting schedule was granted.

e. The support ordered was based on a corporate financial statement produced two days earlier (and I stated that the amount was likely low).

[10] The Applicant submits that her cost for the motion was $14,406.

[11] The Applicant submits that she was the more successful party. Her success included the parenting schedule she sought, a disclosure order and while not receiving the quantum of support she sought, she did get an order for child and spousal support.

[12] Both parties served Offers to Settle.

[13] The Respondent’s offer served on February 13, 2013, offered:

a. Best efforts to complete disclosure by March 15, 2013.

b. He was not prepared to provide disclosure relating to 77 Ashburnham Road but it would be without prejudice to the Applicant seeking the disclosure at a later date.

c. The Applicant would provide disclosure in the Request to Admit and other items not requested in the notice of motion.

d. The balance of the motion would be adjourned to a case conference.

[14] The Respondent’s offer did not address custody, access, or support.

[15] The Applicant’s offer included:

a. No interim custody.

b. Acceptance of the Respondent’s proposed parenting schedule of equal time.

c. Respondent would satisfy the requested disclosure by April 15, 2013.

d. Would accept $3,000 per month uncharacterized support.

e. Return for case conference after disclosure.

f. All issues would be adjourned without prejudice including costs.

[16] The Applicant submits that the result was similar or better than what I ordered.

[17] The Applicant submits that she attempted to negotiate, mediate and resolve prior to bringing her motion, while the Respondent failed to provide meaningful disclosure until the motion was brought.

[18] The Respondent’s response to disclosure requests was a unilateral reduction of support, rude and abusive emails.

[19] The Respondent’s costs submissions commenced with an inappropriate effort at re-arguing the motion. In particular, he questions why I would not adjourn the motion to another case conference.

[20] There had already been a case conference and a considerable time had passed since the first conference. Parties should not need to have another conference to deal with the obvious. The obvious included the Respondent needing to make disclosure and to satisfy the court as to his income given the support issue and that he operated through a corporation.

[21] The Respondent submits that the Applicant did not get most of the relief she requested.

[22] However, he made no offers concerning parenting or support.

[23] The Respondent concedes that the support, as ordered, was marginally higher than the amount he decided to pay.

[24] The reference to post motion events is inappropriate.

[25] On August 18, 2010, Sanderson J. canvassed parenting issues only and noted that the parties were optimistic that they could work out other issues.

[26] Sanderson J. suggested that if they could not work out other issues a further case conference would be required. While the Respondent relies on this endorsement, his failure to make disclosure and to unilaterally decrease the level of financial support, his failure file an Answer and a financial statement made his position unreasonable.

[27] While the Applicant’s Application commenced June 7, 2010, the Respondent did not file his Answer until February 12, 2013.

[28] The Answer was not filed until after this motion was commenced.

[29] The affidavits satisfy me that the Applicant made serious efforts at attempting to resolve the parenting and financial issues by negotiation and mediation.

[30] The affidavits satisfy me that the Respondent did not make a reasonable, if any, effort to make the necessary disclosure to address financial issues.

[31] For nearly two years the Applicant did not press the disclosure issue, or the Respondent’s failure to file an Answer and a financial statement, however, commencing June 20, 2012, her current counsel commenced asking for disclosure and offered to return to mediation on the parenting issues.

[32] The requests were reasonable and should have been addressed. They were ignored.

[33] In the meantime, the Respondent, who had started by providing monthly payments of $6,000 per month (uncharacterized and no written agreement), unilaterally reduced the amounts to $5,000, then $4,000 per month, and after the July 2012 request for disclosure stopped payments. A further reduced amount was paid but not in any predictable and reliable manner.

[34] Without the benefit of disclosure, the Applicant and her counsel were understandably unable to reasonably determine what was an appropriate level of child and spousal support.

[35] The Respondent sent an email to the Applicant on November 20, 2012, offered $1,000 per month and told her that she would not see $3,000 in December.

[36] His email of November 23, 2012 was offensive, and would have left no doubt that the Applicant was left without choice but to seek assistance from the court.

[37] His emails in January did not get any better.

[38] On February 1, 2013, the Respondent for the first time request disclosure by way of a request for information. In the absence of an Answer, he was not in a position to make these requests as he had yet to set out his position. In fact, pursuant to rule 10(5) he was note entitled to participate:

(5) If a respondent does not serve and file an answer as this rule requires, or if the answer is struck out by an order,

(a) the respondent is not entitled to any further notice of steps in the case (except as subrule 25 (13) (service of order) provides);

(b) the respondent is not entitled to participate in the case in any way;

(c) the court may deal with the case in the respondent’s absence; and

(d) the clerk may set a date for an uncontested trial.

[39] The Respondent served a cross-motion for return February 19, 2013, dated February 12, 2013.

[40] In support of the motion his counsel’s law clerk signed an affidavit dated February 12, 2013.

[41] In a letter dated January 15, 2013, (after having requested an adjournment from the January 22, 2013 first return), counsel for the Respondent advised that her client “anticipates that he will be able to provide all items (of disclosure) … within 14 days.”

[42] Applicant’s counsel consented to the late filing of the Respondent’s Answer signed February 12, 2013 on February 14, 2013.

[43] In his Answer, the Respondent seeks to set aside a partial Separation Agreement dated February 26, 2010 dealing with some property issues for the first time.

[44] It in this Answer, for the first time, the Respondent suggests what his 2012 income was.

[45] His Financial Statement of February 13, 2013 (appears to be his first) suggests annual income of $126,000.

[46] His disclosure of his 2011 Income Tax Returns includes spousal support deductions of $32,400.

[47] Attached to the Respondent’s March 8, 2013 affidavit he provides, for the first time, a 2012 T-4, and a copy of his company’s 2011 Financial Statement.

[48] In looking at the application of the Rules, Rule 2 must at all times be considered:

PRIMARY OBJECTIVE

(2) The primary objective of these rules is to enable the court to deal with cases justly.

DEALING WITH CASES JUSTLY

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

DUTY TO PROMOTE PRIMARY OBJECTIVE

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective

DUTY TO MANAGE CASES

(5) The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.

[49] The expectation of Sanderson J. was that the parties would cooperate that I find must include making disclosure to be able to address the financial issues. It would be contrary to the objectives to have allowed the Respondent, who has failed to respond to reasonable requests, acted unilaterally, failed to file a financial statement and Answer, and then insist on another conference before addressing the reasonable requests as the conference could not have been productive.

[50] See by analogy rule 17(18):

(18) If a conference is adjourned because a party is not prepared, has not served the required brief, has not made the required disclosure or has otherwise not followed these rules, the judge shall,

(a) order the party to pay the costs of the conference immediately;

(b) decide the amount of the costs; and

(c) give any directions that are needed. O. Reg. 114/99, r. 17 (18).

[51] Rules 18 and 24 speak to costs.

[52] The suggestion that after not filing an Answer, failing to make and ignoring the disclosure requests, arbitrarily reducing support and sending the types of emails the Respondent sent, that a further conference would be first required is unreasonable and inconsistent with the objectives of the Rules.

[53] Counsel and parties are mistaken when they wait, or need a case conference to address disclosure or seek to resolve temporary issues. There is always an obligation to make the obvious disclosure and to settle issues.

[54] Case conferences are generally designed to avoid unnecessary motions and to have productive discussions. Absent disclosure and a filed Answer, particularly two and one-half years after the case began; little would have been served by a case conference without the disclosure and an Answer.

[55] The Applicant was prepared to adjourn to a case conference on reasonable terms and not far off of what I ordered to the next step being a Settlement Conference.

[56] This offer was made prior to the Respondent’s March 8, 2013 affidavit and some additional disclosure.

[57] I am satisfied that absent the motion, the Respondent would have continued to ignore the disclosure requests or to seriously consider the issues.

[58] Time will tell whether the court will make any retroactive spousal and child support, or adjust the current support once the Respondent’s current income is known and a determination is made of his guideline income.

[59] The Applicant’s offer was more generous on the parenting time than I ordered. It was the same as my disposition of custody, and while I did not address holiday access issues, I deferred that discussion to the Settlement Conference and allowed for the counseling.

[60] I am satisfied that the Applicant was more reasonable and it was the Respondent who forced the motion to compel disclosure, file an Answer and a Financial Statement. The Applicant is entitled to costs.

[61] In the circumstances, the Respondent shall pay the Applicant’s costs fixed at $8,000, inclusive of HST and payable within 30 days with 50% allocated to support and enforceable as a Support Deduction Order.

Czutrin J.

Released: April 23, 2013