Citation: Davids v. David, 2017 ONSC 3766

Newmarket Court File No.: FC-13-43603-00

Date: 20170616

Superior Court of Justice - Ontario

Re: Joanna Davids, Applicant

And: Samuel David, Respondent

Before: The Hon. Madam Justice R.A. Wildman

Counsel: E. Moaveni, Counsel, for the Applicant

Mr. David, Self-Represented

Heard: In chambers

Endorsement

[1] This endorsement relates to Mr. David’s request for a further extension of time to file his cost submissions.

[2] On March 29, 2017, I released a lengthy decision following a trial, which extended for 27 days, from September 30, 2015 to November 15, 2016. The main issue in the trial was whether Ms. Davids should be able to relocate to England with the four children, who aged from four to 10 years old.

[3] The trial originally ended on January 15, 2016. As I was preparing to release my decision in the late spring of 2016, I wrote to all counsel about an outstanding issue. Ms. Davids was requesting a custody and relocation order for one child, Jacob, who was not Mr. David’s biological child. At the end of the trial, Ms. Davids’ counsel had undertaken to serve Jacob’s father, Derek Pyne, with the custody claim or bring a motion to dispense with service. The decision could not be released until the issue of service on Mr. Pyne had been addressed.

[4] After I wrote to counsel, Ms. Moaveni advised that Mr. Pyne had been located and, apparently, wanted to make a claim for custody of Jacob. There were some procedural irregularities with his attempts to put forward his claims but Ms. Moaveni had received a letter alleging that Ms. Davids had hidden Jacob from his father, leaving him “heartbroken”. Mr. David’s counsel, Ms. Bhardwaj, requested an opportunity to reopen the case to call Mr. Pyne as a witness. Ultimately, an agreement was reached to have the case reopened. The court was to hear that evidence in September of 2016.

[5] Ms. Bhardwaj then wrote to advise that, after 25 days of trial, she was no longer Mr. David’s counsel. Mr. David subsequently retained Mr. Caspersz. The trial was delayed until November to allow Mr. Caspersz time to prepare. A last minute motion by Mr. Caspersz to get off the record was denied by Justice McGee and the trial was completed November 14 and 15, 2016.

[6] The trial decision was released March 29, 2017. Ms. Davids was given authority to relocate with the children, once certain conditions were met. The court set a deadline for filing cost submissions of April 5 for the applicant and April 10 for the respondent. Cost submissions were to be limited to 10 pages plus any Bill of Costs, Offers to Settle, or caselaw that the parties wished to provide. In order to reduce expense, I advised that caselaw was not necessary but, if provided, should be limited to five cases per side.

[7] The short deadline for costs submissions had been intended to accommodate the Jewish holidays but it was understandably problematic for counsel. Ms. Moaveni was granted an extension to file Ms. Davids’ cost submissions and new deadlines were set: May 3 for Ms. Davids and May 24 for Mr. David.

[8] On behalf of Ms. Davids, Ms. Moaveni’s submissions were submitted to the court May 3. They are seven pages long, plus Offers to Settle. Two cases are cited but no copies were attached. There is no Bill of Costs. Total costs for the 27-day trial are calculated at $245,000 plus HST of $31,850 for a total of $276,850.

[9] I draw attention to the brevity of Ms. Moaveni’s submissions, not to criticize her in any way. The court had purposely tried to make the filing of submissions a relatively straightforward task, given the limited resources of these clients, the amount of money that had been expended in legal costs already, and the practical problems anticipated in collecting any cost award that might be made.

[10] The point is that responding to these relatively straightforward cost submissions is not a task that should take months to complete.

[11] On May 25, one day after the filing deadline for Mr. David’s cost submissions, the court received an email from Ms. Alison Dennis, indicating that she was Mr. David’s new counsel. She said neither she nor Mr. David had a copy of Ms. Moaveni’s cost submissions. This made sense, as Mr. Caspersz was still Mr. David’s solicitor of record, so he had presumably been served with Ms. Moaveni’s cost submissions.

[12] Ms. Dennis indicated that Ms. Moaveni had agreed to email the submissions to Ms. Dennis. Ms. Moaveni had also extended the courtesy to Ms. Dennis of consenting to her requested extension for filing Mr. David’s cost submissions to June 12, 2017. Given that agreement, the court extended the deadline for the filing of Mr. David’s cost submissions to June 12 but ordered that this date was peremptory on Mr. David.

[13] On May 26, Ms. Dennis wrote to advise that she was no longer Mr. David’s solicitor.

[14] On June 7, 2017, Mr. David wrote to my assistant and requested a “further 30-40 days” to file his cost submissions, as he was without counsel.

[15] The court wrote to both Mr. David and Ms. Moaveni (reminding them to copy each other on any emails to my assistant[^1]). I explained that, given the delays that had already been caused by Mr. David’s multiple changes of counsel, the court was reluctant to delay the completion of this matter any further. I asked Mr. David to explain how he thought the court could be reassured that he would be able to retain counsel and have his submissions filed in the requested timeframe. I also asked Ms. Moaveni to advise as to her position.

[16] Ms. Moaveni has written to confirm that she opposes any further extension. Her email indicates:

…Mr. David’s request is unreasonable given circumstances that exists (sic) at this time. My client’s costs continue to increase as Mr. David shops around for counsel, whilst at the same time, he threatens motions against Mrs. Davids, etc.

We take the position that Mr. David has caused significant unnecessary delays in the hearing and finalization of this matter, and the matter should be closed as soon as possible.

[17] Mr. David has responded. He has not addressed my question about how he can, realistically, retain new counsel (who will know nothing about the trial other than what is contained in my decision) and get cost submissions completed in the requested timeframe. His letter focuses primarily on complaints about Ms. Davids and confirms that he intends to file an “emergency motion in the very near future” relating to access. He also repeats his complaints that “my kids are being verbally abused and physically abused by her husband until the day in an on going basis (sic).”[^2]

DISCUSSION AND DECISION

[18] In short, we do not seem to be much further ahead than we were during this very difficult trial. The daily turmoil and “crises” of this family kept taking the trial off on one twist and turn after another. The court needs to exercise some control over this endless litigation and, once again, try to bring some finality, if not peace, to this family.

[19] Since the trial ended in January of 2016, Mr. David has repeatedly delayed matters by changing counsel. His submissions were originally due April 10, then May 24, then June 12. In other words, he has already had the benefit of extensions of over two months from the original date.

[20] The last date (June 12) for filing costs submissions was made peremptory on Mr. David. Yet, he did not arrange for Ms. Dennis to continue as his lawyer. He has already discontinued his retainer with his original lawyer (Ms. Bhardwaj) and his second lawyer (Mr. Caspersz).

[21] It is not reasonable to give Mr. David another lengthy delay to try to find another lawyer. It is unrealistic that he will be able to find someone to take this matter in time to meet the filing deadlines. In addition, Ms. Davids has a right to have a decision made about costs of the last round of litigation before Mr. David is permitted to have her incur any further costs for new litigation.

[22] Having made the decisions he did about multiple changes of counsel, Mr. David is now self-represented. He has Ms. Davids’ submissions to respond to, which gives him some framework as to how to prepare his own submissions. The court has already explained the general approach it will follow in deciding costs, in paragraphs 763 to 766 of the trial decision.

[23] It is up to Mr. David to either find counsel to help him or prepare his costs submissions himself. Perhaps he can find someone who is prepared to review his draft submissions on an “Unbundled Services” or “Limited Scope” retainer before they are submitted to the court. If the Toronto or York Regions courts, Law Society, Legal Aid or some other resource cannot help Mr. David to locate lawyers who offer this type of service, there is a list available from the FLIC office in Barrie of lawyers who provide Unbundled Services. However, he needs to act quickly, as the court is only prepared to grant him one more extension of just over two weeks.

[24] Mr. David’s cost submissions will now be due Tuesday July 4, 2017 at 2 p.m. This date is peremptory on him, with or without counsel. The submissions may be filed by email a copy to my assistant, with a copy to Ms. Moaveni, and filing the original with proof of service in the court file in Newmarket. If they are not received by that deadline, the court will make a decision about costs based on Ms. Moaveni’s submissions, the Offers to Settle that she provided, and my own knowledge of what transpired in the trial.

[25] I am choosing July 4 as that week is my last non-sitting week before the end of October and I want to devote it to completing the costs decision in this matter. I wish to decide the matter of costs for the parties before the summer begins, as it may have an impact on motions over the summer. It seems to me that responsibility for, and payment of, any outstanding costs order may have some bearing on the ability to continue with further litigation.

[26] There are to be no more motions brought by Mr. David until cost submissions have been filed. Thereafter, unless I order otherwise in my costs decision, there are to be no more motions by him, without leave of the court. Any motion for leave should provide the evidence referred to in my trial decision and should also address whether or not there should be security for costs paid before the motion is allowed to proceed.

ORDERS

[27] Paragraphs 24 and 26 shall be made into an order of the court forthwith.

WILDMAN J.

Date: June 16, 2017

[^1]: The courtesy of allowing direct email correspondence to my assistant about procedural matters had been granted when all parties were represented by counsel to address the impracticality of filing 14B motions in this file in Newmarket, given that I am chambered in Barrie.

[^2]: Similar, if not identical, complaints were previously investigated several times by the JFCS and found to be unfounded. The Court found in the trial decision that Mr. David’s obsession with Ms. Davids’ new husband, and Mr. David’s repeated false allegations against him, were primary reasons why it was in the best interests of the children to allow Ms. Davids and her husband to move to England with the children.