Gurzi v. Elliot, 2011 ONCJ 158

Milton Registry No. 361/10 DATE: 2011·III·17 CITATION: Gurzi v. Elliot, 2011 ONCJ 158 ONTARIO COURT OF JUSTICE BETWEEN: MELISSA JANE GURZI, Applicant, — AND — ROBERT ALAN ELLIOT, Respondent. Before Justice Roselyn Zisman Endorsement inscribed on 17 March 2011 STATUTES AND REGULATIONS CITED Child Support Guidelines, O. Reg. 391/97 [as amended],

section 7. Family Law Rules, O. Reg. 114/99 [as amended], subrule 17(23) and subrule 24(7). CASES CITED Entwistle v. MacArthur, , 157 A.C.W.S. (3d) 773, [2007] W.D.F.L. 4904, [2007] O.J. No. 1958, 2007 Cars​well​Ont3149 (Ont. Fam. Ct.). Susan N. Berry .............................................................................. counsel for the applicant mother William A. Jones ......................................................................... counsel for the respondent father For previous proceedings, see Gurzi v. Elliot, 2009 ONCJ 697, [2009] O.J. No. 5981, 2009 Cars​well​Ont 8882 (Ont.

C.J.), per JusticeRoselyn Zisman. [1] JUSTICE R. ZISMAN (endorsement):— The applicant, Melissa Gurzi, seeks costs for attendances at the settlementconferences on 1 November 2010 and 9 December 2010. Costs were reserved at the request of the applicant. The applicant also seekscosts of the settlement conference on 23 December 2010 in which the parties settled all matters except costs. [2] The applicant seeks full indemnity for the settlement conferences of 1 November 2010 and 9 December 2010, pursuantto subrule 24(7) of the Family Law Rules, O.

Reg. 114/99, as amended, on the basis that the respondent was not prepared to deal with thefinancial issues on 1 November 2010 and he failed to appear on 9 December 2010. She seeks partial indemnity for the 23 December2010 appearance at which time the parties reached a final settlement. In total, the applicant seeks $4,969.73 inclusive of legal fees,disbursements and applicable taxes. [3] It is the position of the respondent, Robert Elliot, that there should be no order of costs.

He submits that the entirelitigation would not have been necessary if the applicant had abided by one of the fundamental provisions of their separation agreementnamely, that she not move the child‘s residence out of the jurisdiction of the City of Burlington in the Region of Halton. [4] By way of brief background, the applicant began a motion to change on 23 April 2009 to vary the terms of a separationagreement dated 30 April 2001 to grant her sole custody of the child Jaimie Lynne Elliot (born on 17 February 1999) and permit her tomove to Grimsby where she had already purchased a new home.

As a result of the move, she also wished to change the child’s schooland remove her from the French immersion program. The applicant also sought a retroactive increase in child support and adjustment to

the respondent’s contribution to some expenses under

section 7 of the Child Support Guidelines , O. Reg. 391/97, as amended. [ 5 ] On 25 August 2009, on a temporary basis, the parties agreed that the applicant could move with the child to Grimsby on terms that they would continue to have joint custody and retain the residence

schedule that was in place. Although it was agreed that Jamie was to continue to attend Pineland Public School in the French immersion program, this was without prejudice and to be in accordance with the rules of the Halton School Board. The financial issues were to be dealt with at a later time after the exchange of relevant financial information.

At a further court attendance, the parties reached a temporary agreement regarding an increase in the ongoing child support. [ 6 ] A contested motion was heard on 23 December 2009 as the applicant wished to moved Jaimie’s school to Grimsby as of January 2010 and thereby to remove her from the French immersion program. The respondent opposed the change. I released my written ruling on this issue on 5 March 2010, having advised the parties that I was not prepared to grant the applicant’s motion.

The applicant was ordered to pay $2,000.00 in costs. [ 7 ] In the subsequent court attendances, it continued to be the applicant’s position that Jamie should be permitted to change schools and be removed from the French immersion program. The parties also disagreed about the number and nature of the extra- curricular activities in which Jamie should be enrolled. The Office of the Children’s Lawyer was appointed. In total, there were 9 court attendances, not including the 3 attendances for which costs are being sought.

The attendances almost exclusively related to Jamie’s schooling and extracurricular activities and included the involvement of the Office of the Children’s Lawyer and a psycho-educational assessment. Except for one attendance, the applicant was represented by counsel. [ 8 ] The respondent was only represented by counsel on the 25 August 2009 attendance and thereafter he represented himself, although he had counsel with whom he was consulting and who assisted in preparing his court documents.

On 1 September 2010, the parties along with counsel for the child entered into to a final settlement regarding Jamie’s school, her extracurricular activities and agreed to retain and each pay half of the cost of a parent co-ordinator and the cost of counselling for Jaimie. The respondent’s counsel attended this settlement conference.

At that time, I endorsed that the matter was adjourned to 1 November 2010 for a settlement conference on the outstanding financial issues. [ 9 ] Unfortunately, by 1 November 2010, counsel for the child had ended her involvement as the parties had entered into a final settlement on the child-related issues. However, the parties had not engaged the parent co-ordinator and disagreed on the

interpretation of their settlement regarding the number of extra-curricular activities in which Jamie was enrolled. Although I had endorsed that the settlement conference on 1 November 2010 would deal with the outstanding financial issues, quite naturally the respondent and his counsel focused on the child-related issues and their position that the applicant had breached the terms of settlement. It was reasonable that the respondent would wish the court’s input on the

interpretation of the very order that the court made rather than simply defer to the parent co-ordinator to interpret the order. I therefore find no fault with the respondent’s use of the settlement conference to attempt to clarify the issue of the number of activities in which Jamie should be enrolled and whether the applicant had breached the spirit of the settlement if not strictly the terms. [ 10 ] However, I agree with counsel for the applicant that the respondent had not filed sufficient financial documentation so that the financial issues could be settled.

The applicant’s counsel prepared a detailed brief with a breakdown and supporting documents to substantiate her claim for a retroactive adjustment in the respondent’s child support payments and for his share of the extra-curricular activities. The respondent had throughout the proceedings submitted that he had also incurred expenses for Jaimie and that there should be a set-off. Despite many requests by applicant’s counsel for him to provide documentation to substantiate his position, he failed to do so.

The respondent had also taken the position that there should be a reduction of his guideline child support as he had Jaimie in his care at least 40% of the time and that he incurred additional transportation expenses due to the applicant’s move out of the jurisdiction. [ 11 ] Although the primary focus of the settlement conferences involved child-related issues, applicant’s counsel continually reminded the respondent and the court that the financial issues needed to be resolved.

Unfortunately as respondent’s counsel was not present at these prior attendances, he had to rely on the court’s endorsements and on the information conveyed to him by the respondent as to what next steps were required in this case. The respondent’s sporadic use of counsel to consult with, to draft documents and sometimes to attend court is an example of the problem with the so-called “unbundling of legal services”. Although this may have saved the respondent legal fees, there is no doubt that it resulted in the applicant’s legal fees being increased and was frustrating to both the applicant and her counsel.

It required further court time as, when the respondent’s counsel did attend, many of the issues that had been previously canvassed with the respondent directly had to be reiterated for the respondent’s counsel. I therefore agree with applicant’s counsel that the respondent was not prepared to adequately discuss the financial issues at the 1 November 2010 settlement conference and, as a result, a further settlement conference had to be scheduled. [ 12 ] The applicant seeks costs as a result of the respondent and his counsel not attending the settlement conference scheduled for 9 December 2010 at 9:15 a.m.

However, the respondent’s counsel had advised the applicant’s counsel the day before that he was ill and he confirmed early in the morning of 9 December that he was too ill to attend court. The applicant’s counsel attended to advise the court and the matter was adjourned to another date. She seeks costs on the basis that the respondent was not in attendance. It is not submitted that the applicant’s counsel requested that the respondent or his counsel arrange to attend court to obtain an adjournment.

Even if the respondent had attended, the matter would still have been adjourned as the court would not have required the respondent to proceed without his counsel. This matter was dealt with early in the morning and took a few moments. The applicant’s counsel’s bill of costs indicates that she attended for 2 hours, which includes travel time. In view of the short time for the actual court attendance, most of the cost must relate to travel time. Applicant’s counsel could have arranged for a local counsel to speak to the adjournment at a far less cost.

There is no basis for the respondent’s being required to pay costs for this attendance. [ 13 ] The applicant also seeks costs for the court attendance of 23 December 2010 when the parties reached a final settlement. The respondent submits that this litigation finally settled because of the respondent’s concession that the applicant could move Jaimie’s school outside of the jurisdiction.

He submits that it would be unfair to require him to pay costs when it was clear that, if he had not made this concession, the applicant would have continued her relentless campaign to the detriment of Jaimie and both parties would have continued to incur substantial legal fees.

[14] The applicant submits that the respondent acted unreasonably in delaying to retain the parent co-ordinator and thatcounsel spent more than an hour between the conferences “debating” the terms of the retainer. In the settlement reached by the parties,it was agreed that Jaimie would only be enrolled in one activity, but the applicant almost immediately enrolled Jamie in two classes ofone activity.

As a result, Jaimie continued to attend activities three nights per school week while at the same time the applicant allegedthat she should be removed from the French immersion program because she was finding school too challenging. The purpose oflimiting Jaimie’s activities was so that she would have more time to devote to school.

In view of the applicant’s position that she had notbreached the terms of settlement as Jaimie was only enrolled in one activity, it was completely reasonable for the respondent to be verycautious about any further agreement into which he entered with the applicant to ensure that the applicant would not again thwart theterms and spirit of any further agreement. [15] Both counsel refer to their offers to settle in their settlement conference briefs. There is no reference to any other offers.

Subrule 17(23) of the Family Law Rules is clear that no brief, evidence or statement made at a settlement conference is to be disclosedunless in an agreement reached at a settlement conference or an order. There is no exception for the offers to settle in a settlementconference brief to be disclosed in submissions for costs. See Entwistle v. MacArthur, , 157 A.C.W.S. (3d) 773,[2007] W.D.F.L. 4904, [2007] O.J. No. 1958, 2007 Cars​well​Ont 3149 (Ont. Fam.

Ct.). [16] In view of the fact that all issues were settled and neither party acted unreasonably, there is no basis for the respondent tobe required to pay costs. [17] In conclusion, the only costs that might be payable by the respondent to the applicant would relate to the fact that he wasnot prepared to deal with the financial issues at the settlement conference that was held on 1 November 2010.

Subrule 24(7) of theFamily Law Rules provides that the court shall award costs against a party, if that party is not properly prepared to deal with the issues atthat step of the proceeding, unless the court orders otherwise in the interests of justice. [18] The applicant submits a bill of costs for $900.00 for the attendance on 1 November 2010 for three hours at the rate of$300.00 per hour which time includes her travel time. [19] I have considered that the court time on 1 November 2010 was spent on the issue of whether the applicant breached theterms of the consent order reached on 1 September 2010 with the resulting effect that the parent co-ordinator had not been retained.

Itwas my view that the applicant had breached the spirit, if not the specific terms, of the consent. If she had not done so, then there wouldhave been time to deal with the financial issues and I would have agreed with the applicant’s counsel that the respondent should paycosts as he was not prepared. However, to order the respondent to pay costs would be permitting the applicant to take advantage of herunreasonable conduct. I find that it is against the interests of justice to reward the applicant for her conduct. [20] There will be no order for costs.