Court File and Parties
NEWMARKET COURT FILE NO.: FC-18-56775-01
DATE: 20210129
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: David Natale, Applicant
AND:
Christina Crupi, Respondent
BEFORE: A. Himel J.
COUNSEL: M. Tweyman, Counsel for the Applicant
A. Schild, Counsel for the Respondent
HEARD: January 29, 2021, in chambers
RULING ON 14B REQUEST TO RE-OPEN THE COSTS DECISION
[1] On December 21, 2020, I issued lengthy reasons setting out my ruling in respect of costs. I ordered the Applicant (the “father”) to pay costs in the amount of $35,000 in response to the Respondent’s (the “mother”) request for costs in the amount of $105,842.66 (2020 ONSC 8007).
[2] I found that the mother was successful on all significant issues, however, the requested costs were not reasonable or proportionate. For that reason, I discounted the costs materially.
[3] The father brings a 14B motion to re-open the costs decision on the basis that his former counsel failed to include two offers dated October 13, 2019, in respect of the pending motion and a November 5, 2019 offer to settle all issues.
[4] The father blames his former counsel for this “slip”, however, I am not prepared to make a finding of responsibility one way or the other. What the father opted to include in his submissions is an issue between himself and his former counsel.
[5] In any event, I placed no weight on the mother’s October 2019 offer, which was also in respect of the pending motion. I would treat the father’s offers to settle in the same manner.
[6] If the father had put the November 5, 2019 offer to settle before me, I would not have found it particularly helpful in my determination of costs. The father’s offer to settle required that the parties return to 50/50 parenting at a time when his access was limited to supervised visits on Saturdays and there were various outstanding criminal charges. Moreover, the terms of the Father’s offer to settle were not severable and the offer expired at the commencement of the case conference on November 15, 2019.
[7] Subsequent to the expiry of the father’s offer to settle, the Office of the Children’s Lawyer (the “OCL”) conducted an investigation. In April 2020, the OCL recommended a schedule that provided the father with materially less time than he had proposed in his November offer to settle.
[8] The Minutes of Settlement executed by the father in October 2020 provide for a 5/14 overnights regime.
[9] I accept the mother’s submission that this 14B motion is the father’s attempt to take another “kick at the can.”
[10] The mother states that on January 5, 2021, the father served a Notice of Motion seeking leave to appeal the costs Order in the Divisional Court. Moving to appeal the Order is the appropriate step if the father disagrees with same. However, from the mother’s perspective the motion for leave to appeal is another “kick at the can.”
[11] Rather than allowing the parties to find peace after the litigation, the mother believes that father finds reasons to continue the litigation. That is very concerning.
[12] Notwithstanding that the father is employed as a high school teacher, the mother states that he is in arrears of child support in the amount of $6,428. She also attests that he is failing to remain current with his ongoing child support obligations.
[13] In other words, the father has opted to invest in the ongoing litigation rather than pay child support.
[14] The mother argues that the father should not have an audience of the Court if he is in breach of court orders. I agree.
[15] The 14B is a waste of the Court’s time and the mother’s financial and emotional resources. As stated by Pazaratz J. in Berta v. Berta, (2021 ONSC 605):
“We can no longer permit or tolerate inefficient or cavalier approach toward judicial resources. We can no longer overlook or gloss over oppressive, reckless or malicious behaviour.” (para 43)
[16] Collectively, the parties have incurred 332 hours of legal fees, plus this 14B motion (5.5 hours for the mother and an undefined number for the father), as well as the leave to appeal expenses.
[17] The Motion to Change was before the Court for 16 months. During that time the Court dealt with five urgent motions, one urgent motion request, one case conference, four urgent conference requests and five settlement conferences. That does not include the adjudication of costs or this 14B to reconsider costs. This case exemplifies the excessive waste of judicial resources that was lamented by Pazaratz J.
[18] I re-state my recent decision in Schieder v. Gajewczyk, (2021 ONSC 635) as my comments apply to this matter as well:
“The case is indicative of the culture of unreasonableness that plagues the Court. This culture is particularly problematic given the current challenges and delays faced by litigants in gaining access to justice. (para 11)”
“Enough is enough. (para 14)”
[19] The mother has unnecessarily incurred legal fees responding to the 14B motion, which includes her affidavit, a review of the father’s caselaw and the inclusion of legal arguments and caselaw to support her position. The mother requests full indemnity costs which is both reasonable and proportionate in the circumstances.
Order to go as Follows:
The father’s request to re-open the costs decision is dismissed.
The father shall pay the sum of $2,300 inclusive of HST to the mother on account of costs, within seven days.
The father may not bring any requests for relief from the Court until he is no longer in breach of any child support order or costs order.
If, once in compliance with paragraph 2 above, the father seeks any relief from the Court, he shall direct the 14B motion to my attention for leave. A copy of this Endorsement shall be attached thereto. Any such request shall comply with any relevant practice direction. The mother need not respond unless/until she receives an Endorsement requesting a response.
In the circumstances of the Covid-19 emergency, this Ruling is deemed to be an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed Order.
Justice A. Himel
Date: January 29, 2021