CITATION: Niechcial v. Vidler, 2017 ONSC 7516
COURT FILE NO.: FS-127-11
DATE: 2017-12-20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rosemary Niechcial, Applicant
AND:
Mark Vidler, Respondent
BEFORE: The Honourable Mr. Justice P.J. Flynn
COUNSEL: Anna Towlson, Counsel for the Applicant/Responding Party
Kelly Hooper, Counsel for the Respondent/Moving Party
HEARD: November 15, 2017
ENDORSEMENT
[1] The Respondent moved to set aside the Final Order of Sloan J., made September 7, 2017, without notice and to require the Paquette Travers law firm to keep holding in trust the proceeds ($272,367.33) of the sale of the family home.
[2] The September 7th Order (the Sloan Order) struck the Respondent’s pleadings “with prejudice and he has no further status in these proceedings” and further ordered that the proceeds of sale, above, be entirely released to Ms. Niechcial.
[3] The hearing of this motion opened with the Court questioning its jurisdiction.
[4] The Sloan Order is labelled as final and disposes of all issues between the parties. Sloan J. is a judge of this Court.
[5] While there is clear authority for this Court to hear appeals of certain decisions from the Ontario Court of Justice, appeals of orders made by justices of this Court lie to the Divisional Court (in the case of temporary orders) or to the Court of Appeal (in the case of final orders).
[6] While it is styled as a motion to “set aside” the Sloan Order, it is, in effect, an appeal of that Order. And since that Order is a final Order, disposing of all the issues outstanding between the parties, to reverse it requires an appeal to the Court of Appeal.
[7] It seems plain, then, that the parties are in the wrong forum.
[8] If I am wrong and the Sloan Order is not really a final Order, then the appeal must be brought in Divisional Court.
[9] For those reasons, I dismiss the motion.
[10] In spite of my jurisdictional misgivings, I heard the parties’ arguments on the merits. If I am wrong in my conclusion above, I would still dismiss the motion.
[11] It is clear to me that the Respondent was never going to willingly participate in the proceedings.
[12] It required an Order for disclosure against him in September 2012, with which he failed to comply.
[13] Then the parties agreed to mediation/arbitration with Mr. Donald McIntyre. But that was not successful. And in spite of Mr. McIntyre twice giving the Respondent to opportunity, he failed to pay McIntyre’s requested retainer.
[14] Three years passed when the matter was dormant. The Respondent continuously failed to provide income or tax disclosure. The arbitration never commenced.
[15] Meanwhile the Respondent caused a lien to be placed on the family home prior to closing.
[16] In seeking to “set aside” the Sloan Order, he seeks to bind the Applicant to arbitration.
[17] Even though he has remained invisible for service purposes throughout - and this is demonstrated by the title pages of his material here - and did not formally put his counsel on record, he complains that the motion without notice ought to have been served. He, in fact, refused twice to provide an address for service. His reason for doing this lacks merit.
[18] Moreover, the Respondent’s motion to “set aside” is supported not by his Affidavit but by one sworn by his counsel’s legal assistant – without explanation or any legal justification.
[19] Furthermore, a reply is not permitted in the case where a Form 14B motion form starts the process and a Response has been delivered.
[20] The conduct of the Respondent is what hoists him on his own petard. His truculent approach to the lis between the parties was his way of demonstrating that he would not be told or controlled by spouse or court. He has cut off his nose to spite his face.
[21] The Respondent relinquished any right to rely on the Arbitration Agreement and to insist on a stay of the process in this Court.
[22] While the Respondent brought his motion promptly after it learned of the Sloan Order, he has not provided a plausible explanation for any of his recalcitrant conduct in the months leading up to it, including his default in the required retainer. Nor was he provided any documentation to support his financial/tax position.
[23] Finally, the Respondent has not made out an arguable case for child or spousal support or for a right to any of the house sale proceeds.
[24] Accordingly, the Respondent’s motion is dismissed and his request for a stay is refused.
Costs
[25] The Applicant has been completely successful. Rule 24 speaks to her entitlement to costs. At the completion of the hearing, she provided the court with a Bill of Costs. Within days, I was delivered an Amended Bill of Costs for a slightly different amount. It seeks $10,976.13 on a Full Recovery basis, or $8,437.87 on a Partial Recovery basis.
[26] The Respondent, too, delivered a Bill of Costs at the close of the argument on November 15, 2017. If successful, he sought $19,401.16 on a Substantial Indemnity scale or $11,787.21 on a Partial Indemnity Scale. That Bill of Costs was accompanied by an Offer to Settle dated October 24, 2017.
[27] The Offer to Settle is meaningless in these circumstances. In any event, I see nothing that warrants a full recovery award.
[28] Members of the Family Bar should consider delivering Costs Outlines like their Civil sisters do, with brief arguments on their claims.
[29] Taking into account the factors in subrule 24(11) and the reasonable expectations of the losing side (as is evidenced by his Bill of Costs), I find the Applicant’s claim for Partial Recovery costs of $8,437.87, all inclusive, to be fair and reasonable and I accordingly order that that amount be paid to the Applicant by the Respondent within 30 days.
Date: December 20, 2017
P.J. Flynn J.