Toms v. Toms, 2020 ONSC 5274

OSHAWA COURT FILE NO.: FC-20-524-00

DATE: 20200902

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Brooke Suzanne Toms

Applicant

– and –

Christopher Eric Toms

Respondent

Erica B. Kalichman, for the Applicant

Lori Dubin, for the Respondent

HEARD: August 31, 2020

REASONS FOR DECISION

CHARNEY J.:

Introduction

1The respondent, Christopher Toms, brings this motion for a variety of relief relating to the possession of the matrimonial home, the residence of the children, and access to the children.

2After hearing submissions with respect to the issue of urgency and undue hardship, I dismissed the respondent’s motion on the ground that it was not urgent and should not proceed before the first Case Conference, scheduled for October 9, 2020. I advised that written reasons would follow. These are those reasons.

Procedural History

3While this case was only commenced in the end of May, 2020, it has already been the subject of numerous motions and orders. A review of the procedural history will be helpful to understand the context in which the respondent’s motion is brought.

4This case began on May 26, 2020, when the applicant brought an urgent ex parte motion for an interim restraining order against the respondent. Initially the restraining order was refused by Fryer J. on May 27, 2020, although she did find that the motion was urgent and grant a temporary order prohibiting the parties from speaking “disrespectfully or unkindly or in a manner that in any way denigrates the other parent whether or not the child is within earshot”. The May 27, 2020 Order was served on the respondent on June 1, 2020.

5The court received a second ex parte motion from the applicant on June 2, 2020, again requesting a restraining order. Fryer J. concluded that the evidence demonstrated that the respondent had not complied with her May 27, 2020 Order and granted a temporary restraining order on June 2, 2020.

6A review of the June 2, 2020 Order was conducted by Fryer J. on June 9, 2020. Counsel for the respondent had just been retained the day before, and the review of the ex parte order was adjourned to June 17, 2020. The restraining order remained in force on a temporary, without prejudice basis pending the June 17, 2020 review.

7On June 9, 2020 the applicant filed her Application.

8On June 17, 2020, following a review hearing in which both parties were represented by counsel, the restraining order was vacated and replaced with the following order by Fryer J.:

1. My Order of June 2, 2020 is hereby vacated.

2. On a temporary basis, the parties shall communicate only through Our Family Wizard, through counsel or through another mutually agreeable third party.

3. On consent, the parties shall list the matrimonial home for sale with a mutually agreeable agent.

4. On consent, the Respondent (Father) shall not enter the matrimonial home property except in the presence of a mutually agreeable third party and except at mutually agreeable dates and time to do those things necessary to prepare the home for sale as recommended by the parties’ real estate agent or for any other purpose agreed upon in advance.

5. Costs are reserved to be dealt with by the trial judge or as part of a final settlement.

9On July 28, 2020, Rowsell J. issued a consent order requesting the appointment of the Ontario Children’s Lawyer.

10On August 13, 2020 the applicant brought an urgent motion to find the respondent in contempt of court for alleged violations of para. 4 of the June 17, 2020 Order of Fryer J. In particular, the applicant alleged that the respondent had come on to the matrimonial home property on August 4 and 5, 2020 without her consent. This motion, which was originally scheduled for August 31, 2020, was settled by the parties on August 28, 2020, and did not proceed.

11To date no Case Conference has been conducted. There is, however, a Case Conference scheduled for October 9, 2020.

The Respondent’s Motion

12The respondent brought the present motion (described as a cross-motion) on August 25, 2020.

13In this motion the respondent seeks the following relief (summarized):

(a) An Order vacating para. 4 of the Endorsement of Fryer J. dated June 17, 2020.

(b) An Order that the children (aged 8 and 5) shall have primary residence with the respondent.

(c) An Order permitting the respondent to return to the matrimonial home to reside with the children, and an order that the applicant vacate the matrimonial home.

(d) In the alternative, an order that the children shall reside with the respondent at his current residence.

(e) An order limiting the applicant’s access to the children.

(f) In the alternative, an order permitting the respondent to access the matrimonial home in the company of an adult third party upon giving the applicant 24 hours notice.

(g) An order that the applicant not consume alcohol 24 hours prior to her and during her parenting time with the children and participate in regular alcohol testing.

14The respondent complains that he has not been permitted to meet with the real estate agent or property stager at the matrimonial home. He acknowledges that the applicant did agree to permit him to attend the matrimonial home on August 15 and 20, 2020. While at the home he found the following things in “disrepair”:

(a) A kitty litter box that had not been cleaned.

(b) A torn garbage bag.

(c) Spoiled and mouldy food in the refrigerator.

15In support of his motion the respondent has filed an affidavit by a law clerk employed by his counsel. The law clerk states that the respondent is concerned about the children’s health and safety because of the “toxins being emitted from the garbage, rotting food and animal feces”. The law clerk also states that the respondent alleges that there are “unexplained markings” on the children’s bodies. There is no expert evidence to support any of the law clerk’s hearsay allegations. The law clerk has also attached to his affidavit photographs taken by the respondent in the home. These photographs show a kitty litter box, food in a refrigerator, and a torn garbage bag.

16The father contacted the Children’s Aid Society regarding his concerns “for the children’s safety and serious signs of neglect”. Counsel for the applicant advised that on the morning of the hearing she received a letter from the Durham Region CAS stating that they had completed their investigation and found no verified concerns for the children’s safety or well being. The letter specifically states that the CAS consulted a physician and there are no respiratory concerns from the presence of the litter box.

17The respondent has also included the correspondence between himself and the stager hired by the real estate agent to prepare the house for sale. In this text the stager simply states: “I know that Roger left her with a list of things he wanted done. Basically just decluttering and when she was done she was to call him and we would begin staging.”

18Finally, the respondent has indicated that he is concerned for the safety of his children because the applicant works full time in a nursing home in which 31 patients died as a result of COVID-19. Again, no expert evidence is provided to support his safety concerns.

Motions Before Case Conferences

19As a general rule, the Family Law Rules do not permit parties to bring motions before the issues have been dealt with in a case conference. Rule 14(4) provides:

(4) No notice of motion or supporting evidence may be served and no motion may be heard before a conference dealing with the substantive issues in the case has been completed.

20Rule 14(4.2) provides an exception for situations of urgency or hardship:

(4.2) Subrule (4) does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.

21Rule 14(6)(b) provides another exception for a motion for a contempt order.

22The first issue to be addressed in this case is whether the respondent’s motion meets the “urgency or hardship” requirement of Rule 14(4.2).

23“Urgency or undue hardship” contemplates issues such as abduction, threats of harm, and dire financial circumstances (Rosen v. Rosen, 2005 480 (ON SC), at para. 50).

Analysis

24In my view, the evidence relied on by the respondent to support his allegation of “urgency or undue hardship” falls well short of the mark. It is apparent that the respondent is simply trying to reargue the motion that was before Fryer J. on June 17, 2020, in the hope of obtaining a different result than the consent order made.

25While interference by one party with a court ordered sale of the matrimonial home may qualify as “urgency or hardship”, no evidence was presented on this motion that the applicant has interfered with the sale of the home. The stager’s correspondence relied on by the respondent expresses no concerns regarding the preparation or staging of the home for sale. Nor is there any evidence that the real estate agent has any concerns in this regard. The respondent argued that he wants to meet with the stager at the home, but there is nothing in the correspondence to suggest that the stager or real estate agent think such a meeting is necessary. There is nothing stopping the respondent from communicating any of his ideas or concerns directly with either the real estate agent or the stager, and he has provided no explanation as to why he feels that he must meet with either of them at the home.

26There is no reason to believe that, as professionals chosen by the parties, the real estate agent and the stager will be unable to perform their respective jobs without the respondent’s assistance.

27The presence of a kitty litter box, a torn garbage bag, and expired food in the refrigerator does not qualify as urgency or undue hardship. There is no expert evidence that these items, whether individually or cumulatively, pose a real health risk to the children. Indeed, the respondent’s overwrought allegation of “toxins” (made through the law clerk) undermines his credibility on this motion.

28The concerns expressed by the respondent regarding the applicant’s employment at the nursing home are identical to those set out in his affidavit evidence that was before Fryer J. on June 17, 2020. The 31 deaths referred to all took place prior to that motion, and there have been no COVID-19 related deaths since the motion was heard. The applicant is routinely tested for COVID-19 and has never tested positive. Given the lack of expert evidence to support the respondent’s concerns, and given that the evidence he relies on is identical to the evidence that was before Fryer J. on June 17, 2020, these concerns do not rise to the level of urgency required to bring this motion prior to a case conference.

29Finally, the applicant has provided a letter from her therapist for the past two years confirming that the therapist has noted no concern with respect to the applicant’s alcohol consumption or her parenting.

Conclusion

30The respondent’s motion does not meet the test for urgency or hardship, and is not otherwise required in the interests of justice, and must, therefore, be dismissed.

31The applicant is presumptively entitled to costs for this motion: Rule 24(1) of the Family Law Rules. The applicant requests $5,263.00 on a full recovery basis.

32The applicant did offer to settle the respondent’s motion on August 24, 2020. The applicant offered to agree to a withdrawal of the motion on a without costs basis. The offer remained open until noon on August 27, 2020. The offer to settle on a without costs basis included a true element of compromise.

33While the applicant did obtain an order as favourable as her offer, her offer to settle did not meet the requirements of Rule 18(14)3 because it did not remain open until the hearing began on August 31, 2020. Accordingly, while the offer is a relevant consideration under Rule 24(12)(a)(iii), it does not attract the costs consequences of Rule 18(14).

34The respondent argues that much of the material filed by both sides in relation to the respondent’s motion was also relevant to the applicant’s contempt motion that was settled by the parties before the hearing. As such, the respondent argues that the amount claimed by the applicant includes some overlap between the two motions and should be discounted on that basis. Having reviewed the affidavit material filed by both parties, there is some merit to this position. The respondent also argues that his motion was brought in response to the applicant’s contempt motion, and even though the contempt motion was settled, the respondent’s motion must be considered in that context.

35While the respondent’s motion was not successful, this is not, in my view, a case that merits full recovery costs. Costs in family law proceedings are generally payable on a partial recovery basis. Costs are recoverable on a full recovery basis only in prescribed and limited circumstances (Beaver v. Hill, 2018 ONCA 840, at paras. 11 and 13) that do not apply in this case. Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs (Beaver at para. 12).

36The respondent’s motion was brought too soon after the June 17, 2020 order of Fryer J., and too soon before the October 9, 2020 scheduled Case Conference. While it may have been a response to the applicant’s contempt motion, the respondent should have accepted the offer to settle on a without costs basis. Considering the various factors listed in Rule 24, I conclude that $3,000 is a fair and proportionate costs award in this case.

37Counsel for the respondent advises that her client does not have resources available to pay the costs of this motion as a result of the current COVID-19 pandemic. If the proceeds of the sale of the matrimonial home have not been distributed by the date of this decision, the costs ordered in this decision shall be added to the applicant’s share of the net proceeds of sale and paid from the Respondent’s share of the proceeds of the sale of the matrimonial home.