Nallbani v. Turdiu, 2025 ONSC 1731

Nallbani v. Turdiu, 2025 ONSC 1731

COURT FILE NO.: FS-24-43754

DATE: 20250318

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ERALD NALLBANI

Applicant

– and –

NEJLA TURDIU

Respondent

Meysa Maleki and En-Yii Liew, for the Applicant

James B.C Edney, for the Respondent

HEARD: January 21, 2025

VELLA J.

REASONS FOR DECISON – Motion under Rule 1(8)

1The Applicant Father seeks a punitive order under r. 1(8) arising from the Respondent Mother’s nonpayment of a consent costs order made September 27, 2024 (the “Costs Order”). Specifically, the Applicant seeks an order that if the Respondent fails to pay the full costs within 2 days of this hearing, she be levied a fine in the sum of $250 per day until the costs are paid in full.

2For the following reasons, the motion is dismissed.

3By way of brief background, the Respondent sought to relocate the child of the marriage from Ontario to Florida, where the Mother had moved (with the child) to take up employment. The Father resisted the relocation and commenced an Application.

4The Respondent brought a long motion challenging the jurisdiction over the parenting issues relating to the child which was heard on September 19, 2024 (he “Jurisdiction Motion”), on the basis that the child was habitually resident in Florida with the consent or acquiescence of the Applicant, though the child was physically present in Ontario at the time of the hearing of the motion.

5The Respondent lost the Jurisdiction Motion and this court declared that it has jurisdiction. I ordered an urgent motion be scheduled for relocation of the child from Ontario to Florida, before me, subject to my availability (the “Relocation Motion”).

6On consent, the Respondent was ordered to pay costs of the Jurisdiction Motion in the sum of $32,500 (inclusive of HST and Disbursements) by December 3, 2024. The order bears post judgment interest at the rate of 6% per year.

7The Relocation Motion was not heard until December 3, 2024, due to counsel’s availability and then the court’s schedule.

8On December 13, 2024, I released brief reasons and granted the Respondent’s motion to relocate the child to Florida. I indicated that I would provide further reasons and thus have not received submissions as to costs of the Relocation Motion.

Framework for Analysis – Rule 1(8)

9Rule 1(8) states that the court may deal with a party’s failure to comply with an order “by making any order that it considers necessary for a just determination of the matter”. It then provides a non-exhaustive list of remedies which includes the payment of money to a party, or into court, as a penalty or fine (r. 1(8) (a.1)).

10The power to order a fine, or any remedy under r. 1(8), is discretionary.

11There is a three-step test for determining whether a remedy under r. 1(8) is warranted:

(a) There must be a triggering event; i.e.: non-compliance with a court order;

(b) If there is a triggering event, then the court must determine whether it ought to exercise its discretion in favour of the non-complying party by not sanctioning the non-compliance. This discretion will be exercised in favour of the non-complying party only in “exceptional circumstances” and should take into account the litigation history including particularly any past compliance or non-compliance by the non-complying party with court orders.

(c) If the court determines that it should not exercise in favour of the non-complying party, it must determine the appropriate remedy. The court exercises a very broad discretion to determine the appropriate remedy under r. 1(8). (Ferguson v. Charlton, 2008 ONCJ 1 (Ont. C.J.), at para. 64).

12As always, the court must exercise its discretion when applying the Family Law Rules in a manner that enables the court to deal with cases justly (r. 2(2)). This assessment will be guided by the non-exhaustive factors set out in r. 2(3) (Clark v. Clark, 2014 ONCA 175, at para. 66).

13A guiding factor for the exercise of discretion to impose penalties is proportionality. The remedy should be proportionate to the non-compliance.

14The cases relied upon by the Applicant for the imposition of a penalty relate to much different types of cases; namely, repeated failures to comply with disclosure orders or undertakings. None of the cases relied upon impose a penalty for a failure to pay a costs award.

15There is good reason for the absence of such caselaw. The cases attracting a penalty generally relate to enforcing compliance with orders, the failure of which paralyzes the moving party from proceeding with their case in a fair and expeditious manner; such as cases in which a non-compliant party is refusing to produce financial disclosure ordered by the court. Furthermore, the cases in which a penalty has been imposed generally reflect a history of persistent and repeated non-compliance with disclosure orders, without any satisfactory explanation. This reflects the requirement that a non-compliant party’s behaviour be egregious before the court will generally impose a remedy such as a penalty or fine.

16That said, a costs order is important to the party receiving costs. It is important because the “winning” party deserves to receive some measure of costs from the unsuccessful party and may need it to continue litigating. It is also important in light of the objectives of cost awards in the litigation landscape, including the objective of promoting settlement. It is also important because it is a court order. Parties cannot choose whether, and when, to comply with court orders. They must comply with court orders in accordance with the terms imposed, including the term for payment.

The Evidence

17The Applicant submits that the Respondent has, in his view, a “long history” of non-compliance with court orders. He notes that this is the second time that the Respondent has failed to pay a costs order in a “timely manner”. The Respondent paid the costs awarded by Justice Ramsay dated July 27, 2024, but late. The costs were payable by October 23, 2024, but were not paid until November 1 and 4, 2024 (in two installments amounting to $4,000).

18The Applicant also relies on the Respondent’s failure to comply “with a draft consent order” (both parties signed the consent) but this latter event does not constitute a triggering event for r. 1(8) as the order was never signed by the court. He submits that he had no choice but to bring this motion to enforce the costs set out in the Costs Order.

19Furthermore, the Applicant put the Respondent on notice by email dated December 18, 2024, that if the costs were not paid by December 20, 2024 (reflecting an extension of time), he would be bringing this motion.

20Thus, the Applicant claims that the Respondent has a pattern of not paying costs awards in a timely way, and generally ignores his requests for payment until a motion is brought.

21The Respondent acknowledges that she has not paid the costs ordered against her in the sum of $32,500 plus post judgment interest as at the date of the motion.

22The Respondent, however, explained in her affidavit that she effectively took a leave from her job in Florida because she had to remain in Ontario with the child pending the return of the Relocation Motion and its disposition, which was ultimately in her favour.

23In her affidavit, the Respondent lists various ways in which she has attempted to obtain the requisite funds, including applying for a line of credit and listing her Toronto condominium unit for sale.

24More specifically, the Respondent deposed that she applied for a line of credit in Canada but was not approved, in large part because she was not earning an income at the time of her application.

25The Respondent listed her Toronto condominium unit for sale in November 2024 and attached the listing with Zillow real estate as an exhibit to her affidavit. As at the time of the hearing, it had not yet been sold.

26The Respondent also deposed that she has made arrangements for financing by way of a personal loan from an arm’s length third party and anticipated that she would be able to pay the cost award on January 17, 2025. However, in the Applicant’s Reply affidavit, this was clarified to mean that the Respondent would “initiate” payment on or about January 17, 2025, but he would not receive it until on or about January 24, 2025, and the Applicant was unwilling to put off his motion. I have no evidence as to whether the costs award has now been satisfied. I also have no independent corroboration with respect to the personal loan obtained.

27However, the Respondent also provided the credible explanation, in her affidavit, that she was unable to earn income from her employment (located in Florida) for the period that she was in Ontario pursuing the Jurisdiction and Relocation Motions since July 2024 to January 6, 2025. During this period of time, she continued to incur living expenses on behalf of herself and the child and relied on her credit cards to finance this and has no credit left. She has only been able to resume employment in Florida at her position (which was the reason for the move to Florida in the first place) on January 6, 2025. She had reasonably expected the Relocation Motion to be heard earlier than it was, having proposed two dates in October 2024 when I was sitting, However, the Applicant’s lawyer was not available. This pushed the motion date to November, scheduled at TBST initiated by the Respondent’s lawyer. However, due to my schedule, and notwithstanding the urgent nature of the motion, it was not able to be heard until December 3, 2024, prolonging her period of unemployment.

28Hence, when the Respondent agreed to pay the Costs Order within 60 days from October 4, 2024, she reasonably believed that the Relocation Motion would be heard promptly given its urgent nature, after which she would be back in Florida earning income. This was a reasonable expectation, but the court was unable to schedule the motion until December 3, 2024.

29The Applicant has confirmed she will pay the full costs award plus post judgment interest, and that it was always her intention to do so. The steps she has taken to secure funds all predate this motion.

Analysis

30The Applicant submits that the only reason for non-payment is because the Respondent is awaiting the balance of the Reasons on the Relocation Motion and an opportunity to make submissions on the costs of that motion. The Applicant submits that the Respondent is anticipating receiving a costs decision in her favour which she will then unilaterally set off against the Costs Order.

31The Respondent denies that this is the reason for her non-payment.

32The fact that the Respondent was late in paying a prior cost award is a relevant factor. However, the fact that she was late by a matter of days mitigates the quality of the non-compliance. This was not an example of egregious behaviour. The Applicant overstates his position. There is not a long history of breaching court orders. At best, there is a prior incident in which the Respondent was late by a few days in paying a costs order. The Applicant did not bring a motion to enforce that costs order, nor would one have been warranted.

33While I agree with the Applicant that a party cannot unilaterally set off competing monetary awards, I reject the Applicant’s theory in this case. I find that the Respondent has demonstrated reasonable explanations for her inability to pay the outstanding cost award prior to resuming her employment and securing a personal loan, including her efforts to obtain the requisite funds and as evidenced, in part, by her lawyer’s representation relied upon by the Applicant that she had secured a personal loan and would be initiating payment on January 17, 2025, with a view to it being paid by in or around January 24, 2025. This representation was made notwithstanding that a decision on costs of the Relocation Motion is pending my release of the further Reasons on the Relocation Motion. At the motion, the Respondent’s lawyer stated that the costs award and post judgment interest would be paid on January 24, 2025.

34Another relevant consideration in this case is the fact that the Respondent is now the main income earner, and she has primary care of the child. The Respondent is not in a financial position to provide much child support. Indeed, I made it a term of the Relocation Order that the Applicant will have to pay some of the Respondent’s costs to exercise his parenting time with the young child. A punitive award such as suggested by the Applicant would have the unfortunate effect of adversely impacting the child’s quality of life.

35Applying the facts as I have found to the framework set out in Ferguson:

(a) There has been a triggering event; namely, the Respondent’s failure to pay the Costs Order within the 60 days stipulated, and which remained outstanding as at the date of the hearing of this motion and was overdue by about 7 weeks.

(b) Given the lack of a history of substantial noncompliance with court orders, the explanations of the Respondent which I accept including the Respondent’s efforts to secure funds to pay the Costs Order, and the fact that she is the primary earner and the child’s primary residence is with her in Florida, I am exercising my discretion in her favour, and against sanctioning the non-compliance of the Costs Order.

(c) There is no need to consider a remedy under r. 1(8) in light of my decision to exercise my discretion in favour of the Respondent.

36This is not to say that a remedy under r. 1(8), including a penalty, might be an appropriate, necessary and proportionate measure to enforce delinquent costs awards. For example, where the court finds that the payor has funds but simply is not paying to cause financial hardship or otherwise is showing blatant disrespect for a court order by demonstrating a manifest intention not to obey with a court ordered costs award.

37To the contrary, the Respondent has shown a manifest intention to pay the Costs Order through concrete steps she has taken to secure the necessary funds to date of the hearing of this motion. This is not a case which justifies the exercise of discretion to impose a punitive penalty.

38An adequate remedy, in the circumstances of this case, is the accrual of post judgment interest at the rate of 6% agreed to by the parties. The accrued post judgment interest compensates the Applicant for not having use of the money he is entitled to.

Conclusion and Costs

39The motion is dismissed without prejudice to the Applicant renewing his motion, should the Costs Order continue to remain outstanding.

40The parties should resolve the costs of this motion given that neither side is blameless in the circumstances giving rise to this motion. If they cannot, they may provide me with their respective cost outlines and written submissions (not to exceed 2 double spaced pages) within 10 days to be filed and sent to my judicial assistant at: maria.kolliopoulos@ontario.ca.