NEWMARKET COURT FILE NO.: FC-11-38935-02

DATE: 20221102

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Sasan Amid, Applicant

AND:

Behnaz Houdi, Respondent

BEFORE: The Honourable Mr. Justice R. Kaufman

COUNSEL: T.M. Roll, Counsel for the Applicant

Respondent – Self-represented (acting in person)

HEARD: June 22, 2022

ruling on motion

[1] The Respondent seeks Orders for costs against the Applicant on a full recovery basis and emotional hardship.

[2] In addition, she seeks dismissal of the Applicant’s two requests to enforce a Family Arbitration Award, both dated October 23, 2020 or, in the alternative, an Order that the two Awards of April 14, 2020 and August 5, 2020 were satisfied in payments. My understanding is that the Respondent relies on a set-off of section 7 expenses owed to her by the Applicant against the costs that she owes to him arising from Arbitrations conducted by Ms. Goldhart.

[3] The Motion indicates that it is made pursuant to my Order of December 18, 2020. Therein, the parties, both acting in person, disputed everything in issue between them. To suggest that this is a high-conflict case is an understatement. On December 18, 2020, the issue was whether the Applicant could enforce his costs Awards granted by Ms. Goldhart within the Arbitration process. The Respondent acknowledged that partial costs were owing by her but that the overall costs Awards should be reduced by the outstanding section 7 contribution allegedly owing by the Applicant. The Respondent further submitted that her efforts to remit the amounts owing (totalling $586.87) were rejected by the Applicant.

[4] My Endorsement of that date indicates that the issues of the set-off for contribution to section 7 expenses against the outstanding costs would be submitted to a DRO Hearing and that pending that attendance, any attempts by the Applicant to enforce the Arbitral Costs Awards would be stayed. The Applicant had the onus to prove that he had satisfied a costs Award against him which was imposed by Justice McGee and the Respondent had the onus of establishing the existence of section 7 arrears whereafter she was required to pay to the Applicant the amounts of outstanding costs stated above prior to the DRO Hearing.

[5] I reserved the costs of having to deal with this matter and assuming that the DRO was unable to resolve the issues, the costs were to be addressed by me on a motion to be scheduled by the Trial Coordinator.

[6] The DRO Conference Report clarified the disputed issues and noted that all other issues relating to the payment of additional expenses are to be dealt with my Ms. Goldhart and not this court. The alleged facts, as submitted, regarding the DRO’s opinion is not binding upon a court.

[7] Furthermore, in support of her motion, the Respondent has filed a Confirmation and affidavit dated June 14, 2022. Her affidavit indicates that the Applicant has accepted the set-off but that the issue of costs remains outstanding. She adds that further arrears have accrued for section 7 expenses that have been approved but not paid and that there are arrears of yet another Arbitration Costs Award from Ms. Goldhart dated May 30, 2022. Regardless of the veracity of these submissions, they do not relate to issues before me. I can only suggest that at some future date, there be an attempt to obtain a court Order that section 7 expenses be enforced by the Family Responsibility Office. If awarded by the Arbiter, consideration should be to have the Award enforced by a court Order.

[8] The Confirmation filed by the Respondent indicates that the Applicant filed his Confirmation without conferring with her. Unsurprisingly, for this file, the Applicant claims in his Confirmation, filed by Ms. Roll, that communication with the Respondent cannot be conducted. It is alleged that the Respondent has a history of booking dates without notice or consent, that she is supposed to post concerns on Our Family Wizard (“OFW”) but refuses to do so, preferring to book unnecessary court and arbitration appearances. It is alleged that this date was booked by the Respondent without advising counsel as to the purpose of the motion. The materials were served on June 14, 2022 contrary to the Practice Direction for Central East Region requiring 30 days notice. The Confirmation further notes that the issue of costs was settled on OFW and that this matter is an abuse of process and should be dismissed.

[9] Materials included by the Respondent indicate an original date was booked in April but that Ms. Roll was unavailable so the date of June 22 was chosen. I cannot determine, with clarity, if the date of June 22 was communicated to the Applicant. Suffice it to say, there was ample time for the Applicant to file his Confirmation that does not include a request for an adjournment. When the motion proceeded, by virtual platform, the Applicant had not responded to the motion materials.

[10] Before commenting further on oral argument presented by the parties well beyond the allotted one hour time frame (I note the Applicant’s Confirmation indicated 10 minutes in total required for the Motion), I find that the Applicant was not provided sufficient time to respond to the motion materials in accordance with the Practice Direction. I also note that the Respondent’s affidavit indicates that the Case Conference Brief that she filed for the DRO Hearing consisted of 144 pages. This, too, offends the Practice Direction which restricts page limits absent a prior court Order obtained by 14B, on notice, allowing for additional pages. Not to be outdone the Applicant has filed a three page affidavit dated July 21, 2022 with 193 pages of attachments, well in breach of the Practice Direction in the absence of a court Order allowing same.

[11] I also have been informed that the Applicant has issued a Motion to Change and a Response has been filed. Again, unsurprisingly, a number of 14B’s associated with the new matter have been filed. In accordance with the primary objectives of the Family Law Rules, I intend to avoid further technical arguments and deal with the 14B’s herein. The parties are directed to review the primary objectives. Once done, they should both readily discover that both of them have offended the legislation that requires the court to deal with cases justly. Frequent fliers within the judicial system tend to monopolize court resources to the exclusion of the need to give resources to other files. Whereas the parties can refer matters to Ms. Goldhart as long as she is able to hear them, and as long as her retainer is replenished, Ms. Goldhart has the ability to make costs Awards for abuses of her time as reflected in her awards. This court does not have the luxury of continually inviting or promoting return engagements before it in situations where the word “compromise” is not-existent.

[12] In the course of argument on the one-hour motion before me on June 22, 2022, a motion that consumed in excess of two hours of court time notwithstanding Ms .Roll’s Confirmation estimating 10 minutes of court time was required, I am able to extract the following:

(a) the thrust of my April 5, 2022 Endorsement was to determine if the Applicant’s attempts to enforce the two costs Awards from Ms. Goldhart should be stayed (or struck) on the basis that the Respondent had satisfied those costs Awards by paying or tendering payment totalling $586.87 and setting off the balance by subtracting the outstanding contributions to section 7 expenses owed by the Applicant;

(b) in addition, the Respondent’s motion ,which was dismissed without prejudice to being reinstated following service of my Endorsement upon the Applicant, sought an Order striking out the Applicant’s Motion to Change (filed with the court as extension 3 under the current court file number) on the basis that leave to commence the Motion to Change had not been requested as required by the Order of Justice McGee dated February 25, 2019;

(c) additionally, the Respondent wished to bring contempt motions against the Applicant on the basis of breaches of not only Justice McGee’s Order but also that of Justice Bennett, dated January 22, 2020 which dealt largely with further disclosure to be provided by the Applicant;

(d) Justice McGee’s Order did not grant leave to the Applicant to bring a contempt motion against the Respondent. Costs of $1,000 were assessed against the Applicant, which costs have since been paid. The Applicant was not allowed to take further steps in “this proceeding or related proceeding” unless granted leave by a 14B motion on 10 days notice;

(e) the Applicant did not interpret Justice McGee’s Order as precluding a Motion to Change the 2015 final Order. Much as I have interpreted that Order as not precluding the enforcement of the costs Awards from Ms .Goldhart (I have opined that the enforcement did not constitute “further steps”), I do not foresee that the Respondent would succeed in a finding of contempt in this instance and I direct the Respondent to carefully review and consider Justice Charney’s decision in this case[^1] where it was stated that to make a finding of contempt, the court must be satisfied as to three elements of the alleged contempt:

i. the order must be clear and not subject to different interpretations;

ii.the acts stated to constitute the contempt must be wilful rather than accidental; and,

iii. the events of contempt must be proven beyond a reasonable doubt.

(f) the Respondent has not satisfactorily explained her decision to serve her motion materials on June 14, 2022, just six days prior to the return of the motion. The fact that the Practice Direction was not implemented until June 1, 2022 is not a defence as its predecessor Direction contained a similar provision requiring service of materials at least 30 days before the motion;

(g) the Respondent maintains that the Applicant is in breach of Justice Bennett’s disclosure Order dated January 22, 2020 and the Applicant says that he is not in breach and has complied with that Order as supposedly established in his 193 pages of disclosure and his affidavit dated July 21, 2022;

(h) the Applicant states that he is not pressing the enforcement of the Arbiter’s costs Awards. When further pressed in that response, the Applicant indicates that following the DRO Hearing, he conceded that the outstanding section 7 expenses owed by him plus the cheque tendered to him by the Respondent fully satisfied the Arbiter’s costs Awards. To state these disputes in simple words, the Arbiter issues two costs Awards, the Applicant moves to enforce them by court Order, the Respondent says nothing is owing (based on setting off the Applicant’s arrears of section 7 expenses), the Applicant initially rejected that argument but changed his mind after the DRO Hearing (and perhaps after hearing the recommendations of the DRO) and the issue is now resolved but for the costs incurred regarding these issues;

(i) the issues submitted to Ms. Goldhart were to determine appropriate section 7 expenses (in terms of reasonableness and necessity) and to hear disputes about the parenting schedule. She was not authorized to change the parenting schedule;

(j) the purported Motion to Change seeks to change the 2015 Order regarding parenting time and child support and the proportionate sharing of section 7 expenses;

(k) the Respondent has already filed her Response to the Motion to Change which includes a Request for a change as well;

(l) each party accuses the other (or counsel) of being disrespectful towards one another;

(m) there are a number of 14B’s outstanding, namely that of the Applicant dated May 3, 2022 (seeking leave to issue the Motion to Change dated January 25, 2022), that of the Respondent dated May 9, 2022 (seeking an Order dismissing the Applicant’s May 3, 2022 14B) and another by the Applicant dated September 19, 2022 (filed in extension 3 and which is identical to the May 3 14B) and finally, a 14B from the Respondent dated September 29, 2022 seeking to dismiss the Applicant’s 14B dated September 19, 2022 based on concerns that the Applicant’s disclosure is incomplete and dishonest. As an aside, the Respondent acknowledged receipt of the $2,000 awarded by Justice Bennett for costs;

(n) the Applicant maintains that he was never served with my ex parte Endorsement of April 5, 2020 but the Respondent submits an affidavit of service on May 9, 2022 to the contrary; and

(o) the level of animosity between the Respondent towards Ms. Roll is palpable. The level of mistrust between the parties is destined to take this case to trial. The lack of decorum of the parties in the presence of a Judge cannot and will not be further tolerated.

[13] The issue of costs which is the subject matter remaining in the motion before the court is to be addressed in writing. Orally, I provided timelines for the exchange of submissions. The Respondent complied and filed her submissions by July 21, 2022. The Applicant’s submissions were due by August 22, 2022. In fairness, there appears to have been some unintentional confusion as the Applicant could not file submissions without receipt of this Endorsement since an award of costs is predicated on Rule 24 of the Family Law Rules. Rule 24(1) provides that there is a presumption that the successful party is presumptively entitled to costs. The focus is on the relief requested by the Respondent in the motion as particularized in the paragraphs above. I have opined on the requested Order for relief for emotional hardship.

[14] The Applicant shall file his costs submissions by November 30, 2022. Orally, I ordered submissions restricted to three pages, 12 point font, double spaced in addition to Bills of Costs. The Respondent has filed four pages so the Applicant may do likewise. Submissions are to be filed on the portal and with my Judicial Assistant. It is also time for the parties to start utilizing CaseLines and I am requesting submissions already filed and to be filed shall also be filed in that manner.

[15] Regarding the proposed Motion to Change, I have opined on the meaning of “catastrophic” as used in paragraph 67 of the final court Order. I did so for the benefit of the Respondent so that she is not misguided by the improper context for this adjective. Commencing June 1, 2019, the support was capable of being adjusted in accordance with the Guidelines without a need to find a catastrophic change in circumstances. Prior to that time, it appears that the Order represented the parties wish for a respite from the litigation. My opinion is not binding on the Respondent but legal advice is strongly recommended on this issue.

[16] There is a dispute on the sufficiency of the financial disclosure provided by the Applicant in response to the Order of Justice Bennett dated January 22, 2020. The Applicant submits to filing in excess of 300 pages together with an income valuation from Mr. Steven Rayson. The Respondent alleges that some of the documents have been doctored or are inaccurate. She also indicates that the Applicant has not provided that which was ordered. In the course of argument, I was inclined to bypass a Case Conference and proceed to a Settlement Conference but am reminded of the decision of Justice Jarvis in Ni v. Yan, 2020 ONSC 594 in which my learned colleague articulates that a Settlement Conference should not be the forum to dispute and adjudicate upon disclosure issues where there are numerous items in dispute the relevance and proportionality of which can only be determined by a motion.

[17] Exhibit “B” to the affidavit of the Respondent dated May 9, 2022 is a document entitled “Applicant’s Status of Disclosure” pursuant to the Order of Justice Jarvis (sic). There will be an OTG that the Respondent is to provide, in chart form, her position as to what is missing, without any commentary regarding truthfulness or authenticity of the document. The issue is not whether or not the Respondent agrees with the disclosure but whether or not the ordered disclosure has been provided. The Applicant shall be entitled to Reply to the Respondent’s submissions notwithstanding that at this stage, the matter will proceed by 14B. The Respondent’s submissions shall be provided within 20 days and the Applicant’s 30 days thereafter. I am utilizing the Applicant’s affidavit dated July 21, 2022 together with the attachments and the 14B dated September 19, 2022 for the purposes of this determination as to whether or not the disclosure, as provided, is sufficient to enable the Motion to Change to proceed. As I indicated to the parties if, after reviewing the submissions I believe that the argument is too complicated to proceed by a 14B motion, I will convert it into a regular motion to be scheduled by the Trial Coordinator. I am not necessarily seized of any further matters once the submissions are received and reviewed by me.

[18] I anticipate that following my decision, further costs submissions will be required regarding the disclosure issue.

[19] I confirm that Ms. Roll is on Record for this matter relating to the Motion to Change and may be served with all materials.

[20] Once the disclosure issue is resolved, in the event that the Applicant is given leave to proceed with his Motion to Change, the DRO Hearing will not be scheduled and the matter is likely to proceed directly to a Settlement Conference.

[21] All submissions are to be filed on CaseLines to assist future courts in readily accessing documents.

Justice R. Kaufman

Date: November 2, 2022

[^1]: Found at 2016 ONSC 2849. Also, see my decision in this case at 2017 ONSC 3049.