Citation: Gray v. Gray, 2017 ONSC 5028

OSHAWA COURT FILE NO.: FC-04-2384-02

DATE: 20170824

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

GAIL MARY GRAY Applicant

– and –

MIKE COSTAS GRAY Respondent

Michael H. Tweyman, for the Applicant

Andrew Feldstein, for the Respondent

HEARD: April 10, 2017 with Supplementary Submissions Received May 24, 2017

DECISION - MOTION

L.E. FRYER, J

I. Introduction

[1] The Respondent, Mike Gray has brought a motion to set aside the order of Magda J. dated May 25, 2016 pursuant to Rule 25(19) of the Family Law Rules: O. Reg. 114/99 (“FLR”).

[2] On May 25, 2016 this matter was called to trial before Magda J. Mr. Gray did not attend the trial as he had just obtained a job after a long period of unemployment and May 25 was his first day of work. Mr. Gray sent a friend to the court to request an adjournment on his behalf.

[3] Magda J. did not adjourn the trial but rather treated the matter that morning as a default hearing or uncontested trial pursuant to the terms of the Trial Scheduling Endorsement. Magda J. granted judgment in favour of the Applicant, Mary Gray including awarding child support retroactive to 2007 totalling $191,924 and imputing an income of $120,000 to Mr. Gray for prospective child support based on the income analysis prepared by Mrs. Gray’s expert, Jason Kwiatkowski.

[4] Mr. Gray appealed the decision of Magda J. Mrs. Gray moved to quash the appeal on the basis that the proper procedural route was a motion to set aside the judgement pursuant to Rule 25(19)(e) of the FLR. In the decision of Gray v. Gray 2017 ONCA 100, the Court of Appeal clarified the previous jurisprudence and held that Rule 25(19)(e) is the more appropriate procedural route in this case.

[5] Mr. Gray’s appeal was suspended pending the hearing of this motion. If I do not set aside Magda J.’s decision, Mr. Gray is entitled to proceed with his appeal.

II. Background

[6] The basic factual background is succinctly set out in the Court of Appeal’s decision at paragraphs 4 -15. I have set out below only some supplementary factual information that is pertinent to the decision before me.

[7] Mr. Gray had been unemployed for some time prior to trial. Mr. Gray suffers from multiple sclerosis and according to him it is difficult to find work in construction that will accommodate his health concerns. He was offered a job in construction on May 20, 2016. Although the matter had been set down for a 4-5 day trial in the three-week trial sittings, the Trial Coordinator had not yet contacted Mr. Gray about a specific trial date. Mr. Gray was aware that he needed to be available for trial at any time during the three-week sittings nevertheless he told his employer that he would be available for his first day of work on May 25, 2016.

[8] Mr. Gray had retained a paralegal to assist him with trial preparation. The paralegal told him that if he sent an agent to court he would be granted an adjournment.

[9] Mr. Gray asked his friend Ms. Targatt to attend in court for him to request the adjournment. Ms. Targatt was also on Mr. Gray’s witness list. She was initially not permitted to enter the court. Later, when Mr. Gray could not be located, she attended before Magda J. and explained why Mr. Gray was not present. Magda J. adjourned for approximately 30 minutes to review Mrs. Gray’s expert income analysis and her Trial Opening Statement, the evidence upon which he proposed to grant judgment. Ms. Targatt was still unable to contact Mr. Gray. Magda J. proceeded to grant default judgment.

[10] Magda J.’s order included the following terms:

(a) The Respondent shall pay to the Applicant increased child support retroactive to January 1, 2007.

(b) The Respondent owes arrears of child support to the Applicant for 2007, 2008, 2009, 2010, and 2011 fixed in the amount of $108,924.00.

(c) Income shall be imputed to the Respondent for child support purposes for the following years as follows; $178,000 for 2012; $223,000 for 2013; $63,000 for 2014; $74,000 for 2015.

(d) The Respondent owed arrears of child support to the Applicant for the years 2012, 2013, 2014, and 2015 fixed at $83,000.00 and shall be paid as follows; $74,000 to be paid to the Applicant; $9,000 to be paid to the Region of Durham.

(e) The Respondent shall pay ongoing child support for the three children in the amount of $2,159.00 per month based on an average annual income of $120,000.00.

(f) The Respondent shall pay his proportionate share of all special and extraordinary expenses for the children retroactive to February, 2016 and on-going.

(g) The Respondent shall pay the Applicants' costs in this action fixed in the amount of $42,461.17 inclusive of disbursements and HST.

[11] Mr. Gray has since declared bankruptcy. His only assets were two vehicles. His debts not including arrears of child support totaled $208,000. As of the hearing of this motion, the arrears of child support were approximately $258,000.

[12] Mr. Gray was unemployed at the time of the motion but hoping to find work in the construction industry.

[13] Mrs. Gray remains on social assistance.

III. Analysis

[14] Rule 25(19)(e) of the FLR provides that: “the court may, on motion, change an order that…was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present”.

[15] Prior to the Court of Appeal’s decision in Gray the jurisprudence in the family context was unclear as to whether Rule 25(19)(e) applied to motions to set aside a final order made on an uncontested basis or whether it was necessary to resort to the Rules of Civil Procedure, RRO 1990, Reg 194 (“RCP”).

[16] After determining that Rule 25(19)(e) should be interpreted broadly to encompass motions to set aside, the Court of Appeal in Gray went on to hold that:

[29] Finally, and most importantly, this interpretation of r. 25(19)(e) promotes the underlying philosophy, scheme, and purpose of the Family Law Rules. As Benotto J.A. stated in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321 (Ont. C.A.), at para. 11:

The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.

[30] Rule 2(2) states that the “primary objective of these rules is to enable the court to deal with cases justly.” While r. 1(7) permits a court to refer by analogy to the Rules of Civil Procedure where the family rules do not adequately cover a matter, such instances will be “rare”: Frick, at para. 12. The Family Law Rules are intended to be a complete procedural code.

[31] An interpretation of “change” as including “set aside” best promotes the efficient and just resolution of family law matters. On a motion under r. 25(19)(e), the court may decide that the most efficient remedy is to vary the order at issue without setting it aside. However, the court may instead determine that the order needs be set aside entirely; a variation of the order at issue would not produce a just result. For example, a new hearing on the merits may be required.

[32] There is no need to further consider the provisions and language from the Rules of Civil Procedure in this case, such as whether the trial judge’s order is analogous to a “default order”. An analysis of such terms would only confuse the scheme and narrative that are unique to family law litigation. Rule 25(19)(e) adequately covers the matter in this case.

(a) Issue to be Decided

[17] The two fold question for this court is: although he had notice of the trial, has Mr. Gray provided a reason satisfactory to the court that he was unable to be present for trial on May 25, 2016 and if so, should the judgment of Magda J. should be set aside in whole or in part pursuant to Rule 25(19)(e)?

(b) Positions of the Parties

[18] Mrs. Gray would say the answer to both parts of the question is no. Firstly, she should not bear the consequences of Mr. Gray’s failure to attend in court that day; she is an innocent party to whatever occurred. Secondly, Mr. Gray does not come to court with clean hands as he was, according to her obstructionist with respect to disclosure and he should “not now be thrown a lifeline”. Thirdly, if Mr. Gray is given another chance, he will abuse this to further delay. Lastly, if Magda J.’s decision is set aside Mr. Gray will now be in a better position to challenge the evidence in Mr. Kwiatkowski’s report and this will put her at a further disadvantage.

[19] The Region of Durham supports Mrs. Gray’s position to the extent it has an interest in the retroactive child support.

[20] Mr. Gray’s position is that he should have been afforded an opportunity to put his case forward at a trial and that he was denied that opportunity through an error in judgment on his part but one that could have remedied with minimal impact to Mrs. Gray and the court process.

[21] Mr. Gray also takes issue with Magda J.’s decision on a number of grounds:

• Magda J. accepted into evidence Mrs. Gray’s Trial Opening Statement that had not been served upon Mr. Gray.

• Magda J. adopted Mrs. Gray’s expert report with respect to his income which report was only served on Mr. Gray days prior to trial. The report contained erroneous assumptions regarding his income.

• Magda J. awarded child support going back 9 years without undergoing the analysis required by the decision in D.B.S. v. S.R.G. 2006 SCC 37.

• Magda J. did not provide sufficient reasons for his decision.

[22] If I do not set aside the order, Mr. Gray shall continue with his appeal before the Court of Appeal.

(c) Mr. Gray’s Reason for Failing to Attend the Trial

[23] Mr. Gray was clearly physically able to attend the trial on May 25, 2016. He made a decision to attend for work rather than attending the trial. He also acknowledges that he was not prepared for the trial even though he had been pushing for the trial to be heard, and he had refused Mrs. Gray’s adjournment requests.

[24] Mrs. Gray submits that Mr. Gray has put forward no meritorious reason for his failure to attend examples of which would include illness, emergency or a genuine lack of knowledge of the court date. She referred me to the decision of Kissin v. Kissin, 2005 27898 (SCJ) wherein the court stated at para 11 that the moving party must show that he or she failed to appear out of accident, mistake or insufficient notice. This test would suggest that the court requires the moving party to demonstrate some new or additional information that was not available to the court when judgment was granted. However Kissin was decided under Rule 38.11(1) of the RCP and the Court of Appeal in Gray specifically rejected the adoption of the analysis under the RCP in family law cases: Gray at para. 32.

[25] Furthermore, this narrow or strict interpretation of Rule 25(19)(e) is not consistent with the Court of Appeal’s earlier decision in Ketlaars v. Ketlaars 2011 ONCA 349 referred to by the Court of Appeal in Gray. In Ketlaars judgment had been granted on an uncontested basis after Mr. Ketlaars pleadings had been struck. Based on the test set out in Kissin however a motion to set aside the judgment would not be open to Mr. Ketlaars, the Court of Appeal quashed Mr. Ketlaars’ appeal finding that he had not exhausted the “procedures available in the Superior Court to change, vary or set aside such a default order”: para. 5.

[26] To the extent that the Court of Appeal’s decision in Gray was limited to the procedural question rather than a specific finding with respect to the merits of Mr. Gray’s motion to set aside, I find that Rule 25(19)(e) is broad enough to apply to Mr. Gray’s predicament. The fact that he was able to but chose not to attend in court on the first day of trial is not in of itself a bar to success on this motion.

[27] Mr. Gray retained the services of a paralegal, Helen Gross to assist him with trial preparation. Mr. Gray and Ms. Targatt both depose that Ms. Gross advised Mr. Gray that if he sent an agent to court, he would be granted an adjournment as a matter of course. I note that paralegals are not licensed to provide legal advice with respect to family law matters.

[28] I accept and find satisfactory, Mr. Gray’s reason for failing to attend in court on May 25, 2016.

(d) Should the Decision be Set Aside

[29] Under Rule 25(19)(e) of the FLR, if the moving party has provided a satisfactory reason for being unable to attend in court, the court may exercise its discretion and set aside the decision made all or in part.

[30] As emphasized by the Court of Appeal in Gray Rule 25(19)(e) of the FLR must be construed in light of the primary objective set out in Rules 2(2) and 2(3). Rule 2(3) states:

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.

[31] Where, as is more often than not the case, a party is self represented, the court must also be mindful of the Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council and endorsed by the Supreme Court of Canada in the recent decision of Pintea v. Johns 2017 SCC 23. These principles include the following:

• Access to justice for self-represented persons requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient and accommodating.

• Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.

• Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.

• Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable effort to prepare their own case.

• Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.

• Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

[32] For all intents and purposes Mr. Gray was self-represented for much of the prior proceeding.

[33] I have set out below the factors that I considered in determining whether or not Magda J.’s decision should be set aside having regard to the broader principles set out in Rules 2(2), 2(3) and 25(19)(e) of the FLR as well as the Statement of Principles on Self-represented Litigants.

(i) Fairness to the Parties

[34] The FLR must be interpreted and applied in a manner that is fair to both parties whether or not a party is represented by counsel.

[35] Mrs. Gray submits that to set aside Magda J.’s decision would be unfair to her. She is correct in stating that she is the innocent party in this matter. She has been raising the parties’ three children with historically limited financial support from Mr. Gray. She has had to resort to social assistance hence the Region’s interest in this matter. According to her, Mr. Gray has obfuscated his true financial picture and delayed the progress of this matter.

[36] Mrs. Gray did not stress that she would be specifically prejudiced in a way that could not be compensated for in costs if the decision was set aside other than that she has lost a tactical advantage as Mr. Gray will now have had time to respond to her expert’s report. This element of prejudice is not something that this court would consider as weighing in her favour.

[37] Mr. Gray’s position is that the process that led to the decision was unfair to him as a self-represented party.

[38] In order to understand the events of May 25, 2016 in context for the purpose of this motion, it is necessary to look at the history of the litigation leading up to that first day of trial.

[39] Mr. Gray commenced the original Motion to Change seeking to reduce his child and spousal support obligation. He defended Mrs. Gray’s cross Motion to Change. Both parties requested adjournments from time to time. Mrs. Gray requested to adjourn the trial twice as her expert Mr. Kwiatkowski needed further disclosure from Mr. Gray.

[40] Mrs. Gray asserts that Mr. Gray was not forthcoming with respect to disclosure. When Rowsell J. permitted Mrs. Gray to late file her expert’s report, he noted that, “delays in disclosure did occur”. However the evidence does not suggest that Mr. Gray was wilfully or chronically in breach of disclosure orders and at the time of the Trial Management Conference, it was noted that his disclosure obligations were complete.

[41] Mr. Gray admits that he made a grave mistake in not attending at trial on May 25, 2016. However, he submits that, particularly given the history of the litigation, there were options open to the court to address this mistake. The trial had been set for several days; even if he missed the first day of the trial, he could have attended the next day and participated in the remainder of it. Alternatively, the trial could have been adjourned for a day to permit Ms. Targatt to contact him so that he could attend and the prejudice to Mrs. Gray could have been addressed in costs.

[42] Mrs. Gray referred me to one of the only other decisions of this court under Rule 25(19)(e) since the Court of Appeal’s decision in Gray: Arnold v. Deere 2017 ONSC 1936. In Arnold, Kershman J. declined to set aside the order made at an uncontested trial after Mr. Deere’s pleadings were struck. Arnold is distinguishable from the case at bar in that Mr. Deere had not complied with several disclosure and costs orders despite being given several chances over a lengthy period of time and he waited a year before moving to set aside the order.

[43] When reviewed as whole, Mr. Gray’s behaviour during the litigation leading up to the trial is such that he should be given the benefit of the doubt in terms of the exercise of the court’s discretion.

(ii) Saving Expense, Time and Balancing Court Resources.

[44] The FLR dictate that the Rules must be interpreted so as to save expense and time for both the litigants and the court. Rule 2(3)(d) of the FLR also requires the court “to consider giving appropriate court resources to the case while taking account of the need to give resources to other cases”.

[45] It is important for a party against whom an uncontested order was made to move expeditiously under Rule 25(19)(e) to set it aside or to change it. The greater the span of time that elapses after judgment is granted, the more likely there will be an increase in cost and time for both parties to prepare to litigate afresh. The party who obtained judgment is entitled to some certainty and peace of mind. If a party does not move promptly under Rule 25(19)(e), this will be factor weighing against him or her.

[46] It was not disputed that Mr. Gray moved expeditiously following Magda J.’s decision. He retained counsel to launch an appeal and to bring this motion. Although it took some time to schedule this motion, this delay is not attributable to either party.

[47] The other consideration for this court in terms of saving time and expense is the alternative court processes that could be engaged if the judgment is not set aside.

[48] If Mr. Gray is not successful on this motion, he intends to proceed with his appeal before the Court of Appeal. If he is successful with his appeal then this matter could still be remitted back to this court for a trial.

[49] If Mr. Gray is not afforded an opportunity to put forth his own evidence with respect to his income and the associated child support obligation, there will always be a question as to his ability to pay. In cases, where a party steadfastly refuses to participate in the court process or abuses the court process by failing to provide income disclosure as was the case in Arnold, the court may have no other reasonable alternative but to proceed with an uncontested trial. In this case however, Mr. Gray had for the most part participated appropriately in the court process, he had provided disclosure and was – but for his poor decision – prepared to advance his own case.

[50] In the circumstances of this case, not setting aside the default order could lead to further, unnecessary court proceedings, for example if Mr. Gray were to continue to try to “correct” the order through future Motions to Change. The foundation of Magda J.’s decision with respect to Mr. Gray’s imputed income could make it difficult for Mr. Gray to establish that he has met the threshold for a material change in circumstances; see Gray v. Rizzi, 2016 CarswellOnt 2663 (Ont. C.A.).

[51] Mr. Gray has not been able to satisfy the ongoing child support and arrears payments as he does not appear to have sufficient exigible income. Eventually the Family Responsibility Office will commence the usual enforcement proceedings and this will inevitably result in further court attendances.

[52] In this particular case, there are benefits in terms of overall expense, time and court resources to both parties and to the court in a decision being reached on its merits rather than on default.

(iii) Importance and Complexity of the Case

[53] As part of the analysis under Rule 25(19)(e), it is necessary to consider the strength of the moving party’s overall claim.

[54] In Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, a decision under the RCP to set aside a default judgment, the Court of Appeal held that the defendant must demonstrate an “arguable defence on the merits.” Although the test in Mountain View Farms is not strictly applicable to family law proceedings following the Court of Appeal’s decision in Gray, in my view, this wording appropriately expresses the threshold for a moving party to demonstrate under Rule 25(19)(e). If the party moving under Rule 25(19)(e) is unable to demonstrate that he or she has an arguable case on the merits, then it may not be an appropriate use of court resources to set aside the original order to allow for a further hearing.

[55] The more important and/or complex the case, the more difficult it may be to find that the moving party lacks an arguable case on the merits and the more likely the case should be determined following a full hearing.

[56] Mr. Gray seeks to set aside Magda J.’s decision, specifically his findings with respect to his income and the determination of his retroactive child support variation. Mr. Gray commenced his Motion to Change seeking to retroactively reduce his child support obligations among other things; he ended up owing even more retroactive child support totalling almost $109,000 for the period from 2007 to 2011 plus a further $83,000 in retroactive child support for 2012 to the date of trial. Magda J. also imputed an income of $120,000 to him for the payment of prospective child support.

[57] Magda J. adopted the findings set out in Mr. Kwiatkowski’s report. Mr. Kwiatkowski estimated that Mr. Gray’s three-year average income before unreconciled deposits was between $21,000 and $27,000 per year. His three-year average income including unreconciled deposits was between $69,000 and $120,000 per year.

[58] Mr. Gray’s position is that he was denied the opportunity to explain the source of the unreconciled deposits that he says include RRSP withdrawals and gifts from his Father. He acknowledges that Mr. Kwiatkowski asked him for this information around April 20, 2016 but he was not able to provide it to Mr. Kwiatkowski prior to the report being finalized.

[59] Mr. Gray also seeks to advance his position with respect to retroactive child support having regard to the principles set out in D.B.S. and Punzo v. Punzo, 2016 ONCA 957.

[60] Mr. Gray’s stated income was approximately $34,000 in 2016 and less than that at the time of the motion. He is bankrupt and claims that he has no assets. Mr. Gray has not been making the full child support payments ordered by Magda J.; the arrears of child support are now approximately $258,000 and steadily accruing.

[61] Mr. Gray has demonstrated that he has an arguable case on the merits should Magda J.’s decision be set aside. Furthermore, the issues in this case are of sufficient importance and complexity that it is preferable that they should be determined through a contested hearing with evidence provided by both parties. See Boers v. Boers 2010 ONSC 2064.

(iv) Summary

[62] Mr. Gray was effectively self-represented for the relevant period of time. He made a bad decision to go to his first day of work rather than attending at trial. Although not a determining factor, it is of concern to the court that he received poor advice from a paralegal who was not qualified to provide advice in family law matters. I find Mr. Gray’s reason for failing to attend at the trial satisfactory for the purposes of Rule 25(19)(e).

[63] The history of Mr. Gray’s conduct in this matter was not such to disentitle him to a hearing on the merits. He participated in the proceedings for the most part appropriately and, importantly, by the time of the Trial Management Conference, he had satisfied his disclosure obligations according to the endorsement of Rowsell J.

[64] Mr. Gray moved expeditiously to address the default order by commencing an appeal and by bringing this motion.

[65] Having regard to the Statement of Principles on Self-represented Litigants among other things, to decline to set aside Magda J.’s decision would be particularly unfair and prejudicial to Mr. Gray whereas any prejudice to Mrs. Gray can be addressed relatively easily through an award of costs.

[66] The court’s resources are precious and already stretched thin. The alternative to setting aside the order could lead to a multiplicity of proceedings. In this case, it is more expeditious and cost-effective to permit Mr. Gray to put his case forward at trial where his evidence and his position can be tested.

[67] Lastly, the nature of the issues namely a determination of Mr. Gray’s income from self-employment for child support and his obligation to pay child support retroactive to 2007 are issues that are sufficiently important and complex that they should be considered after hearing evidence from both parties.

[68] Mr. Gray has demonstrated that he has an arguable case on the merits.

[69] Rule 2(1) of the FLR states that: “The primary objective of these rules is to enable the court to deal with cases justly”. Having regard to the specific factors under Rule 2(2) and 25(19)(e) of the FLR as well as the Statement of Principles on Self-represented Litigants, the decision of Magda J. shall be set aside in its entirety.

[70] It is appropriate to attach some terms to this decision to ensure that this longstanding case comes to an expeditious conclusion. I am prepared to make a temporary without prejudice order for child support as suggested by Mr. Gray. The quantum of child support is based on his income for last year as set out in his sworn Financial Statement filed on this motion.

[71] I do not have sufficient evidence nor do I deem it appropriate to wade into making partial, final orders including with respect to the quantum of arrears that accrued prior to Magda J.’s decision.

[72] Although Mr. Gray was the successful party on this motion, it was his own poor choice that necessitated these additional steps. He should not benefit at Mrs. Gray’s expense through an award of costs: Rules 24(4), (5) and (7) of the FLR.

[73] If Mrs. Gray delivered an offer to settle that complies with Rule 18 of the FLR and she wishes to make submissions with respect to costs of this motion, I will consider her request. Alternatively, this may be a case where costs, if any, in favour of Mrs. Gray should be determined by the trial judge.

IV. ORDER

[74] The order of Magda J. dated May 25, 2016 shall be set aside in its entirety.

[75] This matter shall be set down for the trial sittings commencing November 22, 2017 peremptory of the Respondent (Father).

[76] The Applicant (Mother) shall within 14 days set a further Trial Management Conference before Rowsell J. on a mutually agreeable date prior to the trial sittings. If the parties have difficulty obtaining a date prior to the sittings from the court, they may submit a 14B motion to me or to Rowsell J.

[77] Commencing January 1, 2017, on a temporary, without prejudice basis Mr. Gray shall pay child support in the amount of $671.00 per month based on his income for 2016 of $34,227.70 for the three children: Alexis Priscilla Gray (born March 1, 1998), Bailey Gail Gray (born April 20, 2000) and Jada Samantha Gray (born September 23, 2003).

[78] There shall be no costs payable to the Respondent (Father) with respect to this motion.

[79] If the Applicant (Mother) served a Rule 18 offer to settle and she wishes me to fix costs, she shall deliver a copy of her offer along with brief submissions with respect to costs not to exceed two pages (excluding a bill of costs) on or before September 8, 2017. The Respondent (Father) shall have until September 22, 2017 to deliver responding costs submissions not to exceed two pages (excluding his bill of costs and any offer to settle). The Applicant (Mother)’s reply submissions not to exceed one page to be delivered on or before October 6, 2017. A duplicate of the costs submissions are to be e-mailed to my assistant Karen Hamilton at Karen.hamilton@ontario.ca.

[80] If the Applicant (Wife) does not seek a ruling with respect to costs from me, shall still be entitled to seek costs with respect to this motion from the trial judge at the conclusion of trial.

JUSTICE L.E. FRYER

Released: August 24, 2017