ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-05-0407-00
DATE: 2014-03-06
B E T W E E N:
LEANNE FILLION
Self -Represented
Applicant
- and -
MATTHEW HAMRE
Michael Mauro, for the Respondent
Respondent
HEARD: March 6, 2014,
at Thunder Bay, Ontario
Mr. Justice D.C. Shaw
Decision on Motion
[1] On March 16, 2007, an order was granted in this court, pursuant to Minutes of Settlement, requiring Mr. Hamre to pay child support to Ms. Fillion. The order required Mr. Hamre to provide to Ms. Fillion by April 30 of each year his income tax return and notice of assessment. It also required Ms. Fillion to provide Mr. Hamre with her income tax return and notice of assessment by April 30 of each year if she was receiving or seeking contribution to expenses under s. 7 of the Child Support Guidelines. Mr. Hamre was also required to maintain extended health coverage for the children.
[2] On January 28, 2014, Ms. Fillion served Mr. Hamre by mail with a notice of motion, for an order requiring Mr. Hamre to produce his income tax returns and notices of assessment for 2011, 2012 and 2013, for an order adjusting child support and for contributions to extended health coverage for their children.
[3] On February 13, 2014 Ms. Fillion and Mr. Hamre attended in court on Ms. Fillion’s motion. An order was granted, on consent, that Mr. Hamre produce his income tax notices of assessment for 2011, 2012, and 2013. The motion was otherwise adjourned to today to allow Mr. Hamre to file his responding material.
[4] Mr. Hamre retained Mr. Mauro as counsel. Mr. Mauro wrote to Ms. Fillion on February 25, 2014. He advised her of his position that her motion was procedurally improper. He advised that he would seek a dismissal of the motion and, if he was required to attend at court to speak to the matter, that he would seek costs. He asked Ms. Fillion to contact him before the return date of March 6 to provide him with her position, failing which he would attend at court on March 6 to seek dismissal of the motion and recovery of legal costs incurred for having to attend court. He advised that he was prepared to deal with the issues by negotiated agreement. He enclosed Mr. Hamre’s notices of assessment for 2011 and 2012 and requested Ms. Fillion’s notices of assessment.
[5] Ms. Fillion did not respond. Mr. Mauro followed up with a telephone call on March 4 repeating his request. Ms. Fillion did not agree to withdraw her motion and indicated that the matter would proceed as scheduled on March 6.
[6] Ms. Fillion submitted that she was unaware that her motion had been improperly brought. She stated that she had been given the motion documents by the court staff and was following what she understood from them to be the proper procedure.
[7] She submitted that she understood from the judge’s endorsement on February 13, 2011 that the matter had to proceed in court on March 6.
[8] During a break in proceedings today, Ms. Fillion was able to speak to duty counsel. After that break, Mr. Mauro and duty counsel jointly advised that the matter would be resolved outside of the court proceedings, and that the parties agreed the motion should be dismissed. The only issue outstanding was Mr. Mauro’s request for costs in having to attend court. He requested costs of $250.00.
[9] I agree with Mr. Mauro’s submission that the motion was not properly brought under the Family Law Rules. This proceeding should have been brought as a motion to change a final order under Rule 15, within which Ms. Fillion could have requested an order for production of income information. However, I accept Ms. Fillion’s submission that she was following what that she understood from the court staff was the proper procedure. I also note that although the matter was not properly brought, a consent order was nevertheless made on February 13, 2103 and that the court adjournment the matter to today’s date.
[10] The difficulty for Ms. Fillion, as I see it, is that Mr. Mauro told her of the procedural error and warned, both in his letter of February 25 and his telephone call of March 4, that he would be required to seek dismissal of the motion and legal costs for attending in court if Ms. Fillion did not agree to resolve the problem without requiring him to attend court.
[11] On March 6, the matter was concluded, by approximately 11:30 a.m. after waiting for other matters to be heard, Mr. Mauro attended court for approximately 1 ½ hours. I accept that he would also have had some modest preparation time.
[12] I am satisfied that although Ms. Fillion cannot be criticized for bringing the motion, she was expressly alerted to the consequences of continuing with the proceeding. Mr. Hamre is entitled to some contribution to his legal costs. The sum of $250 is modest and will only partially indemnify Mr. Hamre.
[13] The motion is dismissed. Ms. Fillion shall pay to Mr. Hamre costs, fixed in the sum of $250, payable within 30 days.
___”original signed by”
The Hon. Mr. Justice D.C. Shaw
Released: March 6, 2014
COURT FILE NO.: FS-05-0407-00
DATE: 2014-03-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LEANNE FILLION
Applicant
- and –
MATTHEW HAMRE
Respondent
DECISION ON MOTION
Shaw, J
Released: March 6, 2014
/nf