Court File and Parties
COURT FILE NO.: 16/19 DATE: 2019 06 03 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Elena Ligia Guma, Applicant/Respondent AND: Nick Nedelcu, Respondent/Appellant
BEFORE: Conlan J.
COUNSEL: Theresa MacLean, Counsel for the Applicant/Respondent Diana Vasilescu, Counsel for the Respondent/Appellant
APPEAL BOOK ENDORSEMENT
I. Introduction
1The Appellant father, Nick Nedelcu (“Nedelcu”), is appealing an order made by Madam Justice Parent of the Ontario Court of Justice in Brampton. In question is Her Honour’s Order, made by way of a handwritten Endorsement, dated December 17, 2018.
2The jurisdiction of this Court to hear the Appeal is not in dispute.
3The parties, Nedelcu and the Respondent mother, Elena Ligia Guma (“Guma”), were in a common law relationship for a few years and share a six year-old daughter. Guma has sole custody of the child. No formal access order is in place.
4Nedelcu had brought a 14B Motion asking leave to commence a Motion to Change the existing custody order, hoping to obtain access only. The said 14B Motion was filed in the face of outstanding costs orders against Nedelcu.
5The 14B Motion, heard in writing, was denied by Parent J. for two reasons – (i) Nedelcu, without reasonable explanation, had not paid anything towards the outstanding costs orders, and (ii) he had not appealed any of those orders.
6The Notice of Appeal alleges that the decision under review is patently unreasonable and wrong in law.
7Nedelcu’s materials state that he is on long-term disability and receives $42,000.00 per year, gross. He alleges that he cannot afford to pay the outstanding costs orders, which total $2600.00, plus HST on one of the orders.
8Nedelcu relies on case law, primarily the decision of Ricchetti J. in Rego v. Santos, 2017 ONSC 4616, which stands for the proposition that “an order which provides for an absolute prohibition against further proceedings involving issues of custody and access [that is, not even the opportunity to seek leave from the court to issue process] unless a cost order is paid is unenforceable” (paragraph 13). Note that the words in the square brackets above are mine but are taken from the said decision cited.
9It is worth mentioning that it is not the decision of Justice Parent under review that prohibits Nedelcu from bringing any court proceeding until all costs orders are paid in full. Rather, that Order was made by Justice Sullivan on June 23, 2017, and that Order was not appealed. No reasonable explanation has been offered to date by or on behalf of Nedelcu for his failure to appeal the said Order of Sullivan J.
II. Analysis and Conclusion
10The Appeal fails. I have not been persuaded on a balance of probabilities that there is any reason to interfere with the decision under review.
11This case is very different than that which confronted Justice Ricchetti in Rego v. Santos, supra.
12First, in that case, the judge at first instance refused to even consider the request for leave to bring a new court proceeding. Instead, the judge simply directed staff to send the documents back to the party seeking leave.
13In our case, Parent J. considered the 14B Motion, reviewed the materials filed (including Nedelcu’s Affidavit and his sworn Financial Statement) and gave a written decision, with reasons, for declining the request for leave.
14Second, in Rego v. Santos, supra, there was no reason to doubt that the appellant was putting forward an accurate history of the litigation.
15In our case, Nedelcu has not been complete or forthright in his recounting of the litigation history. He is in arrears of not one, not two, but three court orders for costs. He has paid not a cent of the consent order made by Parent J. on January 31, 2017 ($250.00), and not a penny of the $2000.00 ordered by Parent J. on March 24, 2017, and nothing towards the $350.00 plus HST ordered by Justice Sullivan in June 2017.
16Third, in Rego v. Santos, supra, the costs order that had to be complied with was truly a crushing one, $126,860.00, of which at least $30,000.00 had to be paid before the litigant could bring any further proceedings in court.
17In our case, we are talking about a little more than $2600.00, outstanding in full for approximately two years now.
18Fourth, in Rego v. Santos, supra, there was no reason to doubt that the party requesting leave was unable to comply with the costs order that had been made.
19In our case, Nedelcu’s own Financial Statement shows that he chooses to spend more than $100.00 per month on tobacco and alcohol. That money should have been put towards the outstanding costs orders. The bottom line is that Nedelcu is hardly a man of wealth, but he earns much more than a minimum wage worker, for example, and his disability benefits are tax-free.
20Fifth, and perhaps most important, in Rego v. Santos, supra, it was found that there was a reasonable basis for the proposed Motion to Change to be brought. The party seeking leave had demonstrated a genuine desire to actively participate in the court proceedings, and, on some of the issues, the proposed Motion to Change was determined to have merit.
21In our case, Nedelcu requested and was granted an adjournment of the lower court proceeding by Parent J. on January 31, 2017. The adjournment was on terms. None of the terms was complied with by Nedelcu, both in relation to filings and the payment of costs. Then he failed to even appear at Court on the return date, March 24, 2017. An order was made in his absence, and his pleadings were eventually struck. He has certainly not shown in the past that he wants to be an active part of court proceedings regarding his daughter.
22On the merits of the proposed Motion to Change, I simply do not accept the implication that Nedelcu is being completely shut-out of his daughter’s life. On the evidence of both parties, he sees the child. If he is dissatisfied with the quantity and/or quality of his current access that is by agreement between the parties, and he wants a court order to formalize his access, then he is not barred from bringing a further leave motion in the future. If he does so, I strongly recommend that he put a better foot forward than he did in late 2017 when he filed his 14B Motion that was considered and rejected by Justice Parent.
23To summarize, there is nothing patently unreasonable about Parent J.’s decision made in December 2017. It is not infected by any legal error. It does not amount to an outright prohibition against even seeking leave to raise an important issue on custody and/or access until costs are paid, which I agree with Justice Ricchetti is an unenforceable directive.
24I must mention one further item. In oral submissions at Court on June 3, 2019, in reply, counsel for Nedelcu, for the first time, raised what sounded like an argument about alleged insufficiency of reasons. Given the way in which the Appeal was presented, I decline to entertain that submission. I will state simply that the handwritten Endorsement of Parent J. made in December 2017 outlines bases for the decision that are capable of meaningful appellate review.
25The Appeal is therefore dismissed.
26On costs, both sides filed Bills. The Bill on behalf of Nedelcu’s lawyer, less experienced than the other side’s counsel, shows about $3600.00, total, as full indemnity. The Bill on behalf of the successful Respondent, presumed to be entitled to costs, requests just over $6000.00, total, as full indemnity.
27I think that a fair, reasonable, proportionate and just quantum of costs is $3600.00, on a partial indemnity scale, in favour of the Respondent mother, and I order that Nedelcu pay those costs forthwith.
Conlan J.
Date: June 3, 2019
