Court File and Parties
COURT FILE NO.: FS-22-00029271 DATE: 20231031 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
James George Philip, Applicant – and – Kulbir Philip, Respondent Ikarameprethu Cherian Philip, Respondent Alleyamma Philip, Respondent
Counsel:
Self-represented (for James George Philip) Michael J. Stangarone and Vivian Merklinger, for the Respondent Kulbir Philip Farrah Hudani, for the Respondents Ikaremeprethu Philip and Alleyamma Philip Jean Hyndman, Agent for the Office of the Children’s Lawyer
HEARD: September 21, 2023
Justice M. Sharma
Endorsement
1The Respondent mother, Kulbir Philip, and the Children’s Lawyer bring this summary judgment motion against the Applicant father, Mr. Philip. The other respondents are no longer involved in this proceeding following a consent Order agreed upon on June 5, 2023.
2Ms. Philip seeks summary judgment granting her sole decision-making responsibility and primary residence of the children, child support, contribution towards s.7 expenses, an order for no equalization payment to be made, and orders dismissing Mr. Philip’s claim for spousal support and costs.
3The Office of Children’s Lawyer (“OCL”) acted on behalf of the parties’ two children, L and N (“the Children”), pursuant to s. 89 of the Courts of Justice Act. The parties’ eldest child, R, is over 18 and was not represented by the OCL, although she was interviewed. The OCL engaged a clinician, Carolyn Cahen, who provided affidavit evidence reporting on her interviews with the Children.
4As advocate for L and N, the OCL sought orders that the Children’s primary residence be with Ms. Philip, that Ms. Philip exercise sole decision-making with respect to the Children, that Mr. Philip have parenting time with N in accordance with her wishes, and that Mr. Philip’s consent be permanently dispensed with for (a) the Children to travel outside Canada and (b) the application or renewal of passports and any other government issued identification. The only difference between Ms. Philip’s position and the OCL’s position is that the OCL would seek an Order that L spend time with Mr. Philip, according to her wishes, and that N spend time with Mr. Philip according to her wishes and in the presence of a third party with whom N is comfortable.
5For the reasons that follow, I dismiss this summary judgment motion, but grant leave for it to return following a settlement conference and with fresh evidence. To grant summary judgment now would not result in a fair and just determination of the issues. I do make interim parenting orders. I also order a settlement conference and make other orders to ensure necessary information is available by the time of that conference.
Overview
6Mr. Philip and Ms. Philip were married on May 16, 2003. They have three daughters, R (aged 19), L (aged 16) and N (aged 10). The Children currently reside with Ms. Philip and attend school. R is attending Toronto Metropolitan University.
7Parties agree that they separated on February 24, 2022 following a heated interaction in front of the Children. Ms. Philip left the matrimonial home with the Children. She says Mr. Philip prevented them from returning by changing access codes to the locks. Mr. Philip says that Ms. Philip “had been given significant time to find alternate living arrangements prior to this day but chose to delay.”
8Ms. Philip works as the Vice-President at Woodbine Entertainment. Her 2022 income was $216,282.
9Mr. Philip is a By-Law Officer with the City of Toronto but is not working and is in receipt of long-term disability benefits, which he says is due to severe degenerative cervical myelopathy. His 2022 Line 150 income was $56,522, of which $13,952 represents CPP disability benefits.
10Mr. Philip was represented initially in this proceeding. He has been unrepresented at other appearances.
11Mr. Philip has entered into a consumer proposal, dated November 30, 2022, under which he pays $400 monthly. The effect of this consumer proposal is not clear. Mr. Philip asserts in his financial statement that his debt is not discharged until the final consumer proposal payment is made on November 30, 2027.
12The Children have been residing with Ms. Philip’s since separation. They rent a home. She has been covering all costs related to the Children.
13As explained under the procedural history below, interim and without prejudice orders granting Mr. Philip parenting time have been made, but the evidence appears to show he has not had parenting time since August 2022. Reunification therapy has also been ordered, but Mr. Philip states he cannot afford it. Ms. Philip says he withdrew from the process.
14Parties disagree about the historical role they played in caring for the children.
15There is evidence from Ms. Philip and the OCL which suggests that Mr. Philip has been overcome by anger. The OCL clinician reports that the Children have expressed fear and discomfort if forced to live with Mr. Philip. They wish to remain in Ms. Philip’s primary care. The Children’s views, as reported, align with the views expressed by Ms. Philip. L may be open to seeing her father. N may also be open to seeing her father, but only if someone she is comfortable with is also present. It is Mr. Philip’s position that he has been targeted by Ms. Philip resulting in the Children being alienated from him.
16Mr. Philip has been residing in his brother’s basement since separation. There is evidence in medical notes of him having significant disabilities, the admissibility of that evidence is challenged by Ms. Philip.
17Interim court orders have been made requiring the payment of child support by Mr. Philip and spousal support by Ms. Philip.
18Ms. Philip, despite covering all costs relating to the children, has not received child support from Mr. Philip as ordered. She has been paying spousal support as ordered. According to her Financial Statement, her monthly expenses exceed her income.
19Ms. Philip alleges there is outstanding disclosure from an Order made by Czutrin J. on August 21, 2023. Mr. Philip, in his affidavit on this motion, has provided some of the disclosure ordered.
Procedural History
20I recount the procedural history in this case as it is relevant to my assessment of whether summary judgment should be granted.
21On June 3, 2022, Kraft J. heard an urgent case conference in response to an urgent motion sought by Ms. Philip around parenting and alleged threats by Mr. Philip to remove the Children from Ms. Philip’s care. Among other orders made, Kraft J. ordered reunification therapy and that the Children have in person parenting time with Mr. Philip on Saturdays.
22On August 5, 2022, parties had a regular case conference before Kraft J. She made several orders for disclosure.
23On September 12, 2022, Kraft J. heard a continued conference and made orders for disclosure, granted Mr. Philip virtual parenting time, granted leave for child and spousal support, and fixed a settlement conference for February 8, 2023.
24On November 23, 2022, Lococo J. heard a motion brought by Ms. Philip for child support and payment of s. 7 expenses. Lococo J. ordered Mr. Philip to pay, on a temporary without prejudice basis, (a) child support in the amount of $1,400 per month, effective December 1, 2022, (b) s. 7 expenses in proportion to their incomes (75% by Ms. Philip and 25% by Mr. Philip). He also ordered disclosure, as previously ordered by Kraft J. on August 5, 2022.
25The scheduled settlement conference on February 8, 2023 did not occur. There was some evidence of either Ms. Philip or the OCL asking for this adjournment.
26On February 15, 2023, Akazaki J. granted Mr. Philip’s motion to vary the child support amount ordered by Lococo J., reducing the quantum of monthly child support to $1,061 per month. He also ordered, on a without prejudice basis, Ms. Philip to pay interim spousal support to Mr. Philip in the amount of $1,252 per month, commencing December 1, 2022. Ms. Philip was also ordered to provide listed disclosure.
27On August 21, 2023, Czutrin J. presided over a settlement conference. The Endorsement notes that Mr. Philip “did not participate in today’s conference although he was made aware of the time, date and location.” The Order of Czutrin J. from the same date fixes Mr. Philip’s arrears of child support ($9,549), and s. 7 expenses ($6,655.84), fixed a date for a summary judgment for September 21, 2023 (one month later), and ordered disclosure by September 1, 2023 of 14 items, including a vocational assessment, medical documentation verifying any alleged inability to work, proof of efforts to return to work on modified duties, and all job applications and interviews attended since the date of separation.
28I note that the Order of Czutrin J. of August 21, 2023 also granted substantive relief that the OCL sought on this motion, namely orders dispensing with Mr. Philip’s consent for (a) the Children to travel, and (b) the application for government documents for the Children. Czutrin J. also ordered Mr. Philip pay costs to Ms. Philip in the amount of $5,628.53.
Legal Principles
29To be successful on a summary judgment motion, the moving party must set out specific facts showing that there is no genuine issue for trial: r. 16(4), Family Law Rules (“FLR”). If there is no genuine issue for trial, the Court shall make a final order accordingly: r. 16(6), FLR.
30The leading Supreme Court of Canada decision on summary judgment is Hyrniak v. Maudlin, 2014 SCC 7 (CanLII, [2014] 1 SCR 87). At para 49, in interpreting a similar test under the Rules of Civil Procedure, the Court said:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
31At para 50, the Court continued:
These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
Application
32From Hyrniak, an overarching consideration on a summary judgment motion is fairness. There will be no genuine issue requiring a trial when a judge is able to reach a fair and just determination on the merits. However, a process that does not give a judge confidence in his conclusions can never be the proportionate way to resolve a dispute.
33In this case, I am not satisfied that the process engaged for this motion can give me confidence with respect to the final orders I am being asked to make. As a result, I am not capable of making a fair and just determination on the merits. My reasons are as follows.
34At the hearing of the motion, I stated that I was concerned about this motion being scheduled exactly one month prior, without input from Mr. Philip. I was concerned because:
a. Mr. Philip’s affidavit on this motion indicated that on August 15, 2023, he asked counsel for Ms. Philip and the OCL for an adjournment of the August 21, 2023 settlement conference. He states that he also never agreed to the August 21, 2023 date in the first place.
b. Mr. Philip attached to his affidavit:
i. An email he sent on August 14, 2023 to opposing counsel and the Family Trial Office advising that he will not be well enough to attend the August 21, 2023 conference because he was dealing with a disability. He sought an adjournment. It appears the Family Trial Office may have then vacated this date, as a result. Ms. Merklinger for Ms. Philip responded to the Family Trial Office the same date stating: “The August 21, 2023 Settlement conference date was booked on April 20, 2023…We are proceeding.” Ms. Hyndman for the OCL indicated she was not aware of the date being vacated and would not have consented to it.
ii. An email he sent on August 15, 2023 advising opposing counsel he is not well and that he was seeking an adjournment.
iii. Again on August 15, 2023, Mr. Philip emailed the Family Trial Office indicating that he advised opposing counsel he was not well, and he asked for an adjournment.
iv. A Conference Confirmation Form, signed by Mr. Philip on August 20, 2023, which again requested an adjournment due to his disability, chronic pain and mobility issues. He requested a new date in October 2023.
c. There was no indication in Czutrin J.’s Endorsement or Order of August 21, 2023 that Mr. Philip had requested an adjournment. Nor was there any evidence of the Family Trial Office providing a Zoom link to allow Mr. Philip to participate virtually on August 21, 2023.
d. Mr. Philip’s affidavit notes that Ms. Philip was granted at least one adjournment in the past by this Court when her counsel was ill. He questioned why the same courtesy was not afforded to him.
e. There is compelling evidence in Mr. Philip’s affidavit that he suffers from several ailments and that he is disabled. He attaches letters from doctors advising that Mr. Philip has symptoms of degenerative cervical myelopathy (numbness, weakness, balance difficulties, pain, lack of sleep, reduced mobility), and other chronic conditions (coronary artery disease, obesity, asthma, sleep apnea, gout, Type 2 diabetes, hypertension). While it would be preferable and usually necessary on a summary judgment motion for such evidence to come within an affidavit from one or more physicians, it is not disputed that Mr. Philip is in receipt of long-term disability benefits and CPP disability. Mr. Philip attached to his affidavit a printout from his insurer, Manulife, advising that he has been in receipt of long-term disability since August 26, 2020 which will continue to March 31, 2040. His receipt of long-term disability strongly suggests he is, in fact, unable to work.
35When asked by the Court at the motion, Ms. Merklinger and Ms. Hydeman confirmed that Czutrin J. was aware of Mr. Philip’s request for an adjournment. However, it is not clear that Czutrin J. was aware of the reason for Mr. Philip’s request for an adjournment, or that he was aware of the significant nature of Mr. Philip’s disabilities that would reasonably have prevented him from attending the courthouse on August 21, 2023 for the settlement conference.
36I am concerned that disposing of this summary judgment, on one month’s notice to Mr. Philip and with Mr. Philip’s current disabilities, would not be fair. In fact, he had much less than one month to respond. According to the timetable fixed at the settlement conference, Ms. Philip was given until September 14, 2023 to deliver her motion material, and Mr. Philip was only given four days (after Ms. Philip’s material was due) to deliver responding material (by September 18, 2023). Mr. Philip was not represented. On this motion, he produced significant evidence of disability that would have impeded his ability to gather material in this timeframe.
37As this was a summary judgment motion, it was incumbent on the parties to put their best foot forward: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONCA 878. A responding party may not rest on mere allegations or denials but shall set out in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial: r. 16(4.1), FLR. In the circumstances, this would have been challenging for Mr. Philip.
38Mr. Philip ultimately uploaded to CaseLines a 385-page affidavit, including exhibits. He also attached a further 25 documents, some of which was evidence of others corroborating his historical parenting role. He participated in this motion virtually. Despite being given guidance by the Court on how to present his case, he struggled in advancing any sort of compelling oral argument. His materials were not well organized.
39In these circumstances, the Court was shocked by the extent to which Ms. Philip’s counsel at the motion: (a) attacked Mr. Philip for his failure to produce affidavit evidence from Mr. Philip’s physicians, arguing that the Court should not consider any of the medical evidence to support Mr. Philip’s claim he was disabled and unable to work; (b) accused Mr. Philip of not providing the extensive disclosure ordered by Czutrin J. from a month prior, some of which would have to be obtained from third parties (e.g., expert vocational assessment, medical reports); and (c) accused Mr. Philip of exceeding page limits and filing deadlines, especially when Ms. Philip’s 34-page factum exceeded the 25-page limit fixed for factums.
40With the greatest of respect to all concerned, this case was not ready for disposition by way of summary judgment. There were too many competing facts in the motion material, notably around financial issues. Each side accused the other of not valuing a significant asset – their pensions – which was necessary to determine equalization. There had been no discussions with a settlement conference judge to understand what medical or financial disclosure was outstanding. It was evident that both Mr. Philip’s and Ms. Philip’s motion materials were prepared in a rushed fashion.
41In my view, counsel ought to have consented to an adjournment of the settlement conference, possibly to a peremptory date. The issues needed to be vetted more closely by a judge at a settlement conference with all parties present, with a view to obtaining any outstanding disclosure and to narrow issues for disposition by trial or summary judgment. Furthermore, upon review of Mr. Philip’s material, it appears that some of the missing disclosure has since been disclosed, creating new opportunities for meaningful settlement.
42I am grateful for the concise and well-organized motion material prepared by Ms. Hyndman as the Children’s lawyer. I am mindful that a decision to dismiss this summary judgment motion may result in uncertainty for the Children, and that this uncertainty is not in the children’s best interests. However, Czutrin J. has already made orders dispensing with the consent of Mr. Philip with respect to the Children’s travel and obtaining government issued identification. The Children continue to reside with Ms. Philip. The urgency of making final orders is not apparent.
43There is clear evidence of the Children’s wishes. L is of an age (16) where any parenting time order would be significantly informed by L’s wishes. She currently wishes to decide when to see her father. N is younger (10). She also wants to decide when to see her father, but she wishes someone else to be present when she has parenting time.
44Mr. Philip argues there has been parental alienation. It is not possible to assess these allegations on the affidavit record. The Children’s evidence was that their mother did not seek to influence their views. However, I am mindful of N’s young age, and the possibility that she may have been pressured by her mother or siblings. Furthermore, the role of the Children’s Lawyer in this case was as the Children’s advocate under s. 89 of the Courts of Justice Act. A clinician conducted interviews with the children, but the Office of the Children’s Lawyer was not engaged to conduct a s. 112 investigation regarding parenting orders. I find that I cannot, with confidence, fairly dispose of the allegation of parental alienation by way of summary judgment based on the material provided.
45If I ordered a mini-trial with testimony from the parties, it would likely not resolve this issue. The evidence of a third party, such as a therapist, is likely necessary. The parties at an appearance before Kraft J. had consented to reunification therapy. Unfortunately, that process did not unfold, either because the parties could not afford it or because Mr. Philip backed out of the process. I am persuaded that Mr. Philip cannot afford it, nor can Ms. Philip. It appears to me that another creative solution or therapeutic process should be considered at a settlement conference before making final parenting orders in the Children’s best interests, and which takes into consideration the views and needs of the Children.
46For these reasons, I decline to make the final parenting orders requested.
Interim Parenting Order
47There will be delay in the lives of the parties and their Children until final parenting orders are in place. The prospect for delay is real. This is because Mr. Philip is unrepresented, has a limited income, suffers from illness that may render him disabled, and according to one doctor’s note, Mr. Philip may undergo significant surgery for which he will require support at home. While Kraft J. did order in person parenting time on an interim basis, that was changed to virtual parenting time by court order on September 12, 2022. There was some evidence that Mr. Philip did not agree to the change to virtual parenting time. For these reasons and at this time, a clear interim parenting order replacing prior interim parenting orders is necessary.
48In considering an interim parenting order, I have considered the Children’s views as set out in the affidavit of Ms. Carrolyn Cahen, a clinical investigator on behalf of the OCL. I have also considered the affidavit evidence of the parties. After considering the best interests of the Children and the factors in s. 16(3) of the Divorce Act, I make the following interim parenting orders:
a. L and N shall have their primary residence with Ms. Philip.
b. Ms. Philip shall have sole decision-making for L and N, with Mr. Philip to be informed of decisions in a timely manner, and subject to L’s right to make her own decisions with respect to medical treatment where the doctor or medical professional is satisfied that she has the capacity to do so.
c. Both parties shall be entitled to information directly from schools, doctors and other care providers, subject to each child’s right to consent or not consent to the release of medical information to either or both parents.
d. If either child engages in counselling, neither parent shall have the right to information about what is disclosed in counselling without the written consent of that child.
e. L shall have parenting time with Mr. Philip in accordance with her wishes as to the form of contact, length and frequency, including not having any contact.
f. N shall have parenting time with Mr. Philip, to be supervised by a third party agreeable to the parties and whom N is comfortable with, according to N’s wishes.
g. Neither parent shall denigrate the other to or in the presence of the children, or question the children about the other parent, nor allow others to do so. Mr. Philip shall not discuss his wishes for specific parenting time with the Children or share his opinions regarding the reasons for the breakdown of their relationship, nor question the Children about their wishes.
h. If Mr. Philip seeks to send a loving message, note or gift to the Children, Ms. Philip shall cooperate in ensuring the Children are advised and receive the message, note or gift. Mr. Philip shall respect any response received from the Children which states they do not wish to have contact with him at this time.
49I make these orders for the following reasons:
a. The orders are substantially consistent with the Children’s wishes. The Children are of an age where their views should be given weight. A parenting time order that significantly exceeded the Children’s wishes might backfire, resulting in the Children not wanting to spend any time with their father.
b. The OCL’s interviews with the Children and Ms. Philip’s affidavit provided significant evidence of Mr. Philip’s angry outbursts.
L indicated that she had a good relationship with her father, but that it has deteriorated and now she is not interested in seeing him until he undergoes counselling to “work on himself first.”. L denied that Ms. Philip was doing anything to turn L against her father. L is no longer willing to engage in reunification therapy.
N also recounted angry outbursts by Mr. Philip, and feeling “sad” and “scared” when her father yells. N would like to see Mr. Philip, but she does not want to go alone and she is not in a rush to do so. N stated that things are going well with her mother and sisters.
c. In light of the evidence of Mr. Philip’s anger issues, I am not persuaded that joint decision making is feasible for the parties at this time.
d. There is no evidence of a concern with respect to Ms. Philip’s capacity to care for the Children. Ms. Philip has made arrangements in her new rented home to drive the Children to and from school and has been supporting the children in their education and extra-curricular activities.
e. There is evidence of Mr. Philip having challenges in his capacity to care for the Children. In addition to his anger, Mr. Philip states in his own affidavit that due to his current health, he is confined to his bed for most of the day.
f. While there was some evidence of the Children having a close relationship with their father in the past, the more current evidence is that that relationship is strained. While the cause of the strain may be due to Ms. Philip’s alleged alienation, the evidence from the Children does not support that conclusion, and the fact remains that the relationship is strained.
g. L and N reported to the OCL clinician that their father did not reach out to them, and at one point, this saddened one or both of them. Should Mr. Philip be inclined to do so, and for the Children’s benefit, he should be entitled to send loving messages to them.
h. By making these orders on an interim basis, a period of clarity now exists for the parties, and Mr. Philip’s claim that Ms. Philip has alienated the Children remains open for adjudication.
50I decline to make an order that Mr. Philip attend counselling for his anger. While there is sufficient evidence of Mr. Philip’s anger to justify such an order, counselling in my view, would not be productive unless there is a willingness on Mr. Philip’s part to address this issue. Furthermore, Mr. Philip appears to suffer from greater health concerns and his physical capacity to attend counselling is in question. To the extent Mr. Philip is able, the Court would encourage Mr. Philip to seek the mental health supports that he needs, including counselling for any alleged anger.
Financial Issues
51Because of the fairness concerns identified, I am not inclined to make any final financial orders. In addition, there are many disputed factual issues which cannot be determined on the motion material presented. They include Ms. Philip’s past income, Mr. Philip’s ability to work, the cost of s. 7 expenses, whether one of the parties earned income from a jet ski business, and whether deductions are made from Mr. Phillip’s income. There is also still outstanding at least one pension valuation. Because I decline to make final financial orders, the interim financial orders regarding child support, s. 7 expenses, and spousal support remain in place.
52The following impediments prevent a final resolution of the parties’ financial issues:
a. A determination of the Family Law Value of Mr. Philip’s pension. Parties argued at the motion who is to blame for the necessary paperwork not being completed and submitted to allow for this valuation to be determined. Czutrin J. has already made an Order on August 21, 2023) that Mr. Philip provide his pension valuation by September 1, 2023 (whether this was possible in the short interval allotted is unknown). This is a ridiculous fight to be having at a summary judgment motion that could potentially finally dispose of the parties’ financial dispute.
b. Whether Ms. Philip accepts that Mr. Philip has a disability that prevents him from working. He has attached compelling medical notes about his inability to work, plus confirmation from his insurer that he is receiving long-term disability benefits. In my view, the only basis upon which Ms. Philip could seriously question Mr. Philip’s inability to work is if she questioned the authenticity of this evidence or the insurer’s conclusion that Mr. Philip qualifies for long-term disability benefits. Her argument that a finding should be made that Mr. Philip is capable of working because he has not obtained third party reports since August 21, 2023 is disproportionately harsh.
c. Copies of Mr. Philip’s bank statements for the past three years.
53This is critical disclosure needed to resolve the parties’ financial affairs. I am not persuaded that Mr. Philip has been given sufficient time to produce some of this disclosure. To dispose of this case without it, by way of summary judgment or mini-trial, would not be fair.
54I make the following disclosure orders to allow for this case to have a meaningful settlement conference:
a. Within 30 days, Mr. Philip shall sign and submit the Application for Family Law Value form, found at Exhibit G to Ms. Philip’s affidavit (found at CaseLines Master B1091), and shall provide a copy of the signed form to Ms. Philip’s counsel.
b. Within 10 days, Ms. Philip shall advise Mr. Philip whether she objects to the authenticity of the medical evidence Mr. Philip provided and whether she continues to take the position he is capable of working. If she holds this position, she shall propose the name of 3 vocational assessors, and Mr. Philip shall select one and make prompt arrangements to undergo an assessment at the earliest possible date. The uninsured cost of the assessment shall be paid for by Ms. Philip, subject to re-apportionment by agreement or court order.
c. If within 10 days, Mr. Philip has not or fails to provide, in an organized fashion, copies of his bank statements for the past three years confirming deposits he receives from all income sources, Ms. Philip (or her counsel) shall forthwith deliver to Mr. Philip a draft Authorization and Direction addressed to all banks in which Mr. Philip has or had an account (as listed on his Financial Statement), and Mr. Philip shall sign the Authorization and Direction and return it to Ms. Philips (or her counsel) within 10 days of receipt from Ms. Philip. This will allow Ms. Philip to independently confirm all deposits to Mr. Philip’s accounts.
d. Ms. Philip shall email the trial coordinator to request the first available settlement conference date, copying Mr. Philip. Parties shall attend the first available conference date, subject to their availability. The date shall be peremptory, once fixed. It shall be held via Zoom. An adjournment will only be granted in the event of a medical emergency. Parties are expected to have filed a complete and updated Financial Statement, Net Family Property Statement, and Offer to Settle.
55It appears the Applicant has disclosed his 2022 income tax return, T4s, and Notice of Assessment, as ordered by Czutrin J. They are attached to his affidavit at Tab B.
56Finally, I am mindful that Mr. Philip has not made his child support payments as ordered, but Ms. Philip has made her spousal support payments as ordered. Both parties argue that they cannot afford to pay these amounts. Ms. Philip argues that if financial issues are not determined by way of summary judgment, at least her higher interim spousal support payment should be set off by the smaller interim child support payment that Mr. Philip has been ordered to pay. I decline to make that order because:
a. I have determined that I am not granting summary judgment and that the interim support orders remain in place.
b. Akazaki J., in his February 15, 2023 Endorsement, already considered this argument. He ruled against setting off the amounts. To make a different order now on an interim basis would be a collateral attack on Akazaki J.’s ruling.
57Mr. Philip, however, is warned that court orders are not suggestions. They demand compliance. As Mr. Philip receives an amount in spousal support that exceeds the amount of child support he has been ordered to pay, this Court at a future hearing may seriously question his willingness to comply with court orders and may impose consequences.
Disposition
58For these reasons, Ms. Philip’s summary judgment motion is dismissed, however, I grant leave for this motion to be returned with fresh evidence once a settlement conference has occurred.
59If I have erred in my application of summary judgment principles under r. 16, I would order that this summary judgment motion be adjourned to a new date fixed by a settlement conference judge, after a settlement conference is heard, and I would permit fresh evidence to be adduced. Under rule 25(19)(e) of the FLR, the court may change an order that was made with notice if an affected party was not present when the order was made because the party was unable to be present. I am satisfied that Mr. Philip was unable to be present at the settlement conference on August 21, 2023 due to his medical issues.
Costs
60A successful party is presumptively entitled to costs. The OCL is not seeking an award of costs.
61As final orders were not granted as requested by Ms. Philip, she was not the successful party, although interim parenting orders were made consistent with the final orders that she and the OCL sought.
62Mr. Philip has not uploaded a Bill of Costs. Unrepresented litigants may be entitled to reasonable costs associated with their time and out-of-pocket expenses.
63I decline to make an award for costs. Even though this motion was scheduled quickly and with little notice to Mr. Philip, he has been in breach of orders around payment of costs, child support, and certain disclosure. This behaviour should not be rewarded with a cost order. Similarly, while interim orders were granted in favour of Ms. Philip, the aggressive approach she took at this motion was unreasonable and unfair to Mr. Philip. This behaviour should also not be rewarded with a cost order.
64For these reasons, I decline to award costs to any party.
Justice M. Sharma Released: October 31, 2023
COURT FILE NO.: FS-22-00029271 DATE: 20231031 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
James George Philip, Applicant – and – Kulbir Philip, Respondent Ikarameprethu Cherian Philip, Respondent Alleyamma Philip, Respondent Children’s Lawyer
REASONS FOR JUDGMENT Mohan Sharma, J.
Released: October 31, 2023