SUPERIOR COURT OF JUSTICE
FAMILY COURT
B E T W E E N:
RODRIGUEZ JOEL ORLANDO LOPEZ
Applicant
- and -
LAURA KELLY LOPEZ
Respondent
R E A S O N S F O R D E C I S I O N
DELIVERED BY THE HONOURABLE JUSTICE P.E. ROGER
on January 13, 2023, at L’ORIGNAL, Ontario
APPEARANCES:
J. Guindon
Counsel for the Applicant
F.P. Huard
Counsel for the Respondent
SUPERIOR COURT OF JUSTICE
FAMILY COURT
T A B L E O F C O N T E N T S
REASONS FOR DECISION
1
REASONS FOR DECISION AS TO COSTS
8
Transcript Ordered:
January 18, 2023
Transcript Completed:
January 18, 2023
Approved by Roger J.:
January 25, 2023
Ordering Party Notified:
January 25, 2023
FRIDAY, JANUARY 13, 2023
R E A S O N S F O R D E C I S I O N
ROGER J. (Orally):
The father’s motion is dismissed.
The father’s affidavit does not tell the Court why equal parenting time and joint decision-making is in the best interest of the children. His affidavit is focused on the ongoing dispute and difficulties between the parties and provides very little evidence about the children.
During submissions, references were made to the factors at s. 16 of the Divorce Act, but the father’s affidavit contains very little evidence relevant to these factors. What was argued by the father were general principles and generally what is in the best interest of the children, but on such a motion what is generally true or generally in the best interest of the children is rarely relevant. What is relevant and what matters for such a motion is the evidence about the children’s best interests and here there is little, very little evidence in the father’s affidavit about why the factors at s. 16 of the Divorce Act support his argument that a 2-2-3 is what is in the best interests of the children.
As an aside, because the above is sufficient to dispose of this motion, I note that what the father seeks on this motion is essentially what he seeks in his application. In his application, he seeks joint decision-making responsibility and progressively building up to equal parenting time. Seeking what is in your application, seeking the entirety of the relief sought in your application or the relief sought in your application, if sought on a final basis, is comparable to bringing a motion for summary judgment. The important distinction here is that the father seeks this relief on a temporary basis. However, even if sought on a temporary basis, if a party obtains all of what that party seeks in his or her application on a temporary motion, the practical outcome may in many cases not be all that dissimilar to a final decision, considering the status quo that will then invariably set in. Yet, here, there are so many issues requiring a trial and practically none have been sufficiently addressed by the father who makes little efforts in his materials to try and alleviate these concerns such that I would be concerned granting the order sought, even if on a temporary basis. It would make sense that if you move on a temporary basis for all of the relief sought in your application, that you have a strong evidentiary record that what you seek is in the children’s best interests. Here, that is missing.
Again as an aside, when you bring a motion for summary judgment, which is by definition on a final basis, you have to show that there is no genuine issue requiring a trial. If you seek the relief that is in your application, on a temporary basis, you are bringing what is practically a disguised motion for summary judgment because you are still asking exactly for the relief sought in your application, although on a temporary basis. When you do so, you should have a strong evidentiary record that addresses the genuine issue requiring a trial, which was not done on this motion. I say that as an aside because I am dismissing this motion on the basis that there is no evidence showing that what is sought is in the best interests of the children, but I say that as an aside because, from my perspective, it is an important point as we see too many of these motions for temporary relief identical to what is ultimately sought by the party in circumstances where the evidence does not show that it is in the best interests of the children. That is rarely the purpose of a temporary order.
Another thing that I wish to address as an aside because it is an important point, is that when a party brings a motion, that party must outline in his or her notice of motion what the relief that he or she is asking is. That is your obligation as a party when you bring a motion, to tell the other side what it is that you are asking, what the relief that you are asking is, and it is that you are entitled to that relief.
Here, the father in his notice of motion seeks equal parenting time in the form of a 2-2-3 and he seeks shared decision-making responsibility, exactly what he seeks in his application. In his notice of motion, he seeks no alternative remedy, only the above. As a result, from the perspective of the other side, the other side has no notice that the father will be seeking anything else – no notice whether the father might be asking the Court, when oral arguments are made at the time of the motion to order anything else. Despite seeking only the above in his notice of motion, during oral arguments the father asked the Court to order, if the court would not order a 2-2-3, in the alternative anything that the Court considered in the best interests of the children.
From my perspective, that is not fair to the other side. When the other side prepares their responding materials, they prepare their materials with a view to what is being sought by the moving party. They draft their affidavit with a view to what is being sought by the moving party, and so if alternative relief is being sought, it should be outlined in the notice of motion and it should be supported in the affidavit. That is fair because it allows the other side to respond to it in their responding materials, to provide the Court with all the evidence that is required.
Coming to court and telling the Court that “despite the fact we are asking for an equal parenting regime, really anything else that is an improvement would be helpful is not, from my perspective, helpful because it is not fair to the other side and because it would leave the court guessing about what might be in the children’s best interest. There is not a fulsome record before the Court addressing these alternative remedies that are not outlined in the materials or even orally and the Court is left to come up with some scenario that is not addressed by the evidence and reflected by the notice of motion.
Moving parties have to remember that this is an interim motion, not a final motion. It is not brought as a motion for summary judgment, it does not seek a final order. It is an interim motion for interim relief. An interim motion is designed to put the parties in some acceptable and not too uncomfortable position that they can reasonably continue to be in up until the trial occurs. It is some position that they are not necessarily happy with, but that is acceptable nonetheless in the circumstances. So, if you seek interim relief, then my suggestion is that you seek it in your notice of motion such that the other side can respond to it clearly.
Now the parties have agreed on a without prejudice temporary order for child support, and I will make that order. It is made on an interim basis, without prejudice, and it is based on disclosed rather than proven income.
A concern of the Court raised by the materials is that the Applicant Father is not bringing the children to their extracurricular activities. From the perspective of the Court, this is not acceptable. What is important is the best interests of the children. The best interests of children who are of the age of 12 and 8 and who have extracurricular activities that they enjoy, what is in their best interest is to go to their extracurricular activities. I appreciate that, at the moment, those may have been chosen by one of the parents and that the other parent may not be happy with these activities, but these activities are there for the children. They are not overly exaggerated in the sense that there is not a multiplicity of them. There is, I understand, ringette for the two eldest daughters that they participate in. What is in the best interests of the children is that they have consistency, a similar routine as much as possible in both households, and this means that despite whoever they are with, they go to their extracurricular activities.
It cannot be in the best interests of the children to go to their extracurricular activities when they are with the mother but not to go when they are with the father. That will only result in difficulties for the father because, if the children enjoy these activities, and I am sure they do, then they may resent the parent who is not bringing them to these activities and that cannot be helpful. One of the best interests of the children is to ensure consistency, and this requires that they go out to their extracurricular activities irrespective of the parent who has them, irrespective of who that parent is, and I will make an order to that effect.
Consequently, the following is ordered:
The father’s motion is dismissed.
On consent of the parties, on a temporary and without prejudice basis, the Applicant Father shall pay child support to the Respondent Mother monthly in the amount of $783 starting on February 1, 2023, based on his stated income for 2021 of $38,757.
The Applicant Father’s parenting time with his three children is every Wednesday from 4:00 to 7:00 p.m., and every second weekend from Saturday at 9:00 a.m. to Sunday at 5:00 p.m. when Monday is a school day or to Sunday at 8:00 p.m. when Monday is not a school day.
During his parenting time, the Applicant Father shall take the children to their extracurricular activities.
THE COURT: Now, the next paragraph, 5, will deal with costs but before that obviously I must hear submissions. I don’t know where you are on costs. So what is the situation on costs, Mr. Huard?
...SUBMISSIONS ON COSTS
THE COURT: Thank you. All right, Ms. Guindon.
...SUBMISSIONS ON COSTS
THE COURT: Thank you.
R E A S O N S F O R D E C I S I O N
A S T O C O S T S
ROGER J. (Orally):
On the issue of costs, I have decided that what is a fair, reasonable, proportionate amount within the expectations of the parties is the amount of $3,500 payable by the Applicant Father to the Respondent Mother in the next 60 days. That is my order on the costs of this motion.
The reason I come to this - an amount of $5,000 is sought for the full indemnity costs of this motion, that is about $4,950 for fees and HST. I am mindful that the full amount is not for the assistant and the student as well, but this is not, as I say, a complicated motion and one counsel’s fee is sufficient.
$5,000 is however an extremely reasonable amount for this motion, and I have no issue whatsoever with this amount.
The only reason I am reducing it is because I come from the civil bar and I prefer, subject to appropriate circumstances, partial indemnity scale of costs, unless something happened. Here nothing happened. Of course, I am mindful that in family such a scale of costs is not applicable but what is fair and reasonable is. And such an amount is fair.
So that is how I arrived at $3,500. It is slightly more than partial indemnity and slightly less than substantial indemnity. I believe it is a fair and reasonable amount of costs in the circumstances of this motion, but it is in no way a critique of the amount sought. The amount sought was, from my perspective, reasonable but the circumstances of this motion do not warrant full indemnity costs.
The amount ordered should be within the reasonable contemplation of the parties, and I believe any party bringing such a motion would expect that if he or she loses, he or she might very well have to pay at least $3,500 in costs to the other side. And I am making that payable within 60 days. If more time is required, I don’t mind saying 90 days, Ms. Guindon. I just don’t want to have an order that is not respected.
MS. GUINDON: Sixty day is respected, Your Honour.
THE COURT: Okay, so I make it for 60 days.
THE COURT: I have prepared a very brief endorsement and the language can be made better, but the endorsement reads:
Order to go for reasons read on the record:
The father’s motion is dismissed.
On consent and on a without prejudice temporary basis, child support $783 starting February 1. [You can add all the language that is based on the father’s income, etc. etc. This is just a very cursory endorsement. I said more in my oral Reasons.]
The father’s parenting time with his three children shall be every Wednesday from 4:00 to 7:00 p.m., and every second weekend from Saturday at 9:00 a.m. to Sunday at 5:00 p.m. if Monday is a school day or to 8:00 p.m. if Monday is not a school day.
The father shall bring the children to their extracurricular activities during his parenting time.
Costs of this motion payable by the Applicant Father to the Respondent Mother in the amount of $3,500 in the next 60 days.
So, as I said, it is a very cursory endorsement, but at least you have something in writing, and I am sending that to my Registrar right now and she will put that in a more appropriate endorsement and she will send that out to the parties maybe next Monday, probably next Monday considering the time that it is now.
FORM 3
CERTIFICATE OF TRANSCRIPT
EVIDENCE ACT, subsection 5(2)
I, Lynn Carrière, Authorized Court Transcriptionist, ACT ID 2366775200, certify that this document is a true and accurate transcription, produced to the best of my skills and ability, of the recording of Rodriguez Joel Orlando Lopez v. Laura Kelly Lopez in the Superior Court of Justice held at 59 Court Street, L’Orignal, Ontario, taken from Recording No. 3411_CR02_20230113_ 092640_10_ROGERP, which has been certified in Form 1 by Sara Santos-Vigneault.
January 18, 2023
Date Electronic signature of
Lynn Carrière, ACT ID 2366775200
Ontario, Canada
- This certification does not apply to the Reasons for Decision which were judicially edited.
A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.