Court File and Parties

Newmarket Court File No.: FC-21-1574-00 Date: 2023-01-25 Ontario Superior Court of Justice

Between: Jennifer McArdle-Toll, Applicant And: Warren Wright, Respondent

Counsel: Geoffrey Wells, Counsel for the Applicant Cheryl Williams, Counsel for the Respondent

Heard: January 25, 2023

Ruling on Motion

A. Himel J.:

[1] The only motion properly before the Court is the Applicant’s (“mother”) motion for the release of her 50% interest in the net proceeds of sale from the jointly owned matrimonial home, in the amount of $546,417.87. This motion was discussed with MacPherson J. as per the December 16, 2022 endorsement. Specific timelines and page limits were provided in that endorsement.

[2] The parties commenced their cohabitation on September 9, 1989, married on August 26, 1995 and separated on June 17, 2019. They have two children, ages eighteen and twenty-one.

[3] The parties have significant assets, although less today than at the date of separation. The mother attests that she is owed a significant equalization payment whether, or not, the father succeeds with his claim for an unequal division of net family property.

[4] That motion was effectively resolved by way of the Respondent’s (“father”) affidavit dated January 10, 2023 when he states, “I do not oppose this motion”.

[5] Frankly, this motion should have resolved at the settlement conference on December 16, 2022, or at least by January 10, 2023.

[6] Rather than vacate today’s motion date, the father opted to use his concession to bring a cross-motion dated January 10, 2023. The cross-motion (that was properly rejected by the Court filing office) requests the release of his 50% interest in the net proceeds of sale. The father argues that his right to the release of the funds was contemplated as part of today’s motion. The father concedes that the requested cross-motion does not comply with the procedures set out in the Central East Practice Direction dated July 1, 2022 (paragraph 40).

[7] The mother disagrees with the father’s request stating that this motion, which was scheduled in August 2022, specifically relates only to her request, as confirmed in the MacPherson J. endorsement. I agree.

[8] The father argues that his cross-motion should proceed today, given the delay in booking a further motion and the availability of today’s time slot. He states that the mother addressed some of the issues relating to equalization and assets in her affidavits, such that the matter should be heard. I disagree.

[9] The mother would be disadvantaged if required to argue the cross-motion today, as her reply was limited to five pages. She has not fulsomely responded to the issues. If a cross-motion had been properly booked, two time slots would have been issued and the parties would have had sufficient time and page limits to address both parties’ requests.

[10] While the mother’s request for funds is not opposed, it is very clear that the father’s request is opposed. The mother states that if the father receives his share of the net proceeds of sale, she will be highly prejudiced as he does not have sufficient assets to pay the prima facie equalization payment and support and costs with the current assets. The issues respecting the father’s claims for an unequal division of funds (arising from considerable post-separation date losses of investment funds from 2019 to 2022), and what is owed to the mother on account of equalization, are highly contentious.

[11] As counsel are well-aware a cross-motion can only be scheduled through the trial co-ordinator. Demand for motion dates in Newmarket is high and judicial resources are limited. Parties must comply with the proper procedures including, timelines, font size, page limits and time limits as set out in the Family Law Rules (“Rules”)[1], the Practice Directions and prior endorsements/orders.

[12] The father’s attempts to substitute his cross-motion into the slot booked by the mother on August 8, 2022, is not reasonable. He is effectively trying to jump the queue.

[13] The father has been on notice of the issues with his cross-motion as follows: (a) as stated in communications with the mother; (b) her Reply affidavit; (c) her Amended Confirmation, and, (d) the standard email that is sent from my office in advance of all appearances which reminds the parties of key components of the Rules and Practice Directions.

[14] With respect to costs, the mother seeks full recovery in the amount of $9,200. She relies on the father’s unreasonable and obstructionist behaviour, as well as her offer to settle dated November 1, 2022. The mother correctly identifies that she has met her offer: on an unopposed basis her 50% interest in the net proceeds of sale are being released and, by default, the father’s share shall continue to be held by the Court until there is a further court order or an agreement.

[15] I reject the father’s argument that he was incapable of accepting the above offer to settle, and his argument that the mother should be awarded costs of $500. He incurred costs of at least $5,400 to prepare one affidavit. The mother incurred costs for the notice of motion and two affidavits. Her counsel also wasted time attempting to persuade the father that his cross-motion was not properly before the Court and could not proceed.

[16] Family Law litigants are encouraged to settle their disputes without resort to the courts and to seek reasonable compromise whenever possible. Sections 18(14) 1, 3-5 and 24(1), (5) and (12)(a) and (b) of the Rules deal, respectively, with the exchange and non-acceptance of Offers to Settle. The principles guiding the court’s exercise of its discretion pursuant to the Rules are well-established. The primary objective, of course, is to enable the court to deal with cases in a fair and timely manner. Four fundamental purposes are served: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants;[2] and (4) to ensure that cases are dealt with justly.[3]

[17] Family law litigants must act in a reasonable and cost-effective way: they should, and will, be held accountable for the positions they take in their litigation.[4] As observed by the Court of Appeal in [Beaver v. Hill][5] reasonableness and proportionality frame the exercise of the court’s discretion: the amount to be awarded is what the “court views as a fair and reasonable amount that should be paid by the unsuccessful [party]”: [Boucher v. Public Accountants Council for the Province of Ontario][6].

[18] Some amount close to full recovery is warranted considering the offer to settle and the father’s unreasonable actions. However, the requested amount is higher than what is typically awarded for a short motion. Moreover, some parts of the mother’s affidavits can be incorporated into her trial affidavit, so there will be a measure of cost-savings in that regard.

[19] In the totality of the circumstances, I find that the sum of $7,500 is reasonable and proportionate. This amount is payable within 7 days.

[20] As directed by MacPherson J., the next step is the TSEF conference. A May/June 2023 trial will follow.

[21] Order to go as signed by me this day.

Justice A. Himel Date: January 25, 2023

[1] O.Reg.114/99. [2] Serra v. Serra, 2009 ONCA 395. [3] Mattina v. Mattina, 2018 ONCA 867 at para. 10. [4] Heuss v. Sarkos, 2004 ONCJ 141; Peers v. Poupore, ONCJ 615. [5] 2018 ONCA 840, at para. 4. [6] (2004), 71 O.R. (3d) 291, 48 C.P.C. (5th) 56, 188 O.A.C. 2001, [2001] O.J. No. 2634, 2004 CarswellOnt 521 (Ont. C.A.).