Court File and Parties
Newmarket Court File: FC-14-46184-00 Date: 20160926 Ontario Superior Court of Justice
Between: Elahe Ranjbar, Applicant Elena Mazinani, for the Applicant
- and -
Ali Aminfar, Respondent Jason W. Gottlieb, for the Respondent
Heard: In writing
Ruling
Jarvis J.:
Introduction
[1] This Ruling deals with the Endorsements made August 25 and 26, 2016, and costs arising from them. In addition, it deals with the request made by the father in his cross-motion for an Order dealing with payment of certain household expenses.
The Matrimonial Home Expenses
[2] The Order made of August 25, 2016 dealt with the sale of the matrimonial home, a process which had been too long delayed. Reference was made in that Ruling to the likelihood that when Bird J. ordered the husband to maintain the household expenses, the court expected far more timely compliance than resulted. Tied to that obligation was the expectation that the husband would be able to acquire acceptable accommodations for the child to reside with him.
[3] The husband was then, and remains now, a person of modest means. The wife claimed that she was unemployed, last working on or about October 6, 2015. She says she cannot pay the mortgage: the husband said that he cannot pay the mortgage and afford to pay for his own separate accommodations. Neither side is able to pay the mortgage. The choice is stark: mortgage payments or a child's relationship with a parent. The parties cannot expect that, in circumstances like these, the court will make an Order that will prejudice the child's best interests. The parties must deal with each other about the mortgage payments.
[4] Accordingly, the Order of Bird J. is varied on a without prejudice basis as follows:
(1) Starting September 1, 2016, the husband shall pay to the wife child support in the amount of $336 monthly. This is based on the husband earning $38,000 (estimated) a year and the wife being paid $546 bi-weekly. (2) No Order shall be made as to spousal support at this time. (3) No Order shall be made with respect to either party's obligation to pay the mortgage. (4) All current and arrears of property taxes owing on the property shall be paid from the proceeds of sale of the property, prior to the division of the proceeds for equalization, disbursement to the parties or any other purpose save and except for any costs arising from this Ruling. (5) The husband shall continue to pay the monthly home insurance payments. (6) Commencing October 1, 2016 the mother shall pay the monthly Rogers Mobile account. (7) A Support Deduction Order shall issue.
Costs
[5] Each party claims substantial success of their motion. The wife claims costs of $5,000 inclusive of HST or, in the alternative, that costs be in the cause: the husband claims costs of $6,257.94 inclusive of disbursements and HST.
[6] Each party delivered Offers to Settle.
[7] The wife’s Offer was dated August 23, 2016. In essence, it sought to maintain the financial status quo set out in the temporary Order of Bird J. made January 15, 2016.
[8] The husband delivered two Offers. They were dated August 18, 2016 and September 3, 2016. Only the former Offer is acceptable as the second Offer post-dated the substantive Ruling made on August 25, 2016. That did not comply with Rule 18(14)1 of the Family Law Rules even though this court afterwards dealt with the issue of the matrimonial home expenses. Neither of the husband's Offers addressed the expenses issue in any event.
[9] Even though success was divided, there was no urgency associated with the motion brought by the mother which was heard by Douglas J. August 4, 2016. Nor was this court impressed with the mother's unilateral conduct in secretly arranging counselling for the child without notice to the father.
[10] Conduct such as was displayed by the wife is unacceptable, and only escalates the stresses and tensions typically associated with parenting litigation. Parties are responsible for their litigation conduct.
[11] The wife shall pay to the husband costs fixed in the amount of $1,500 inclusive disbursements and HST, the payment of which shall be made from her share of the net proceeds of sale of the matrimonial home once that is completed. Interest on the costs awarded shall accrue from and after the completion date of the sale only.