Mohamed v. Mohamed, 2018 ONCJ 530

CITATION: Mohamed v. Mohamed , 2018 ONCJ 530 DATE: August 7, 2018 COURT FILE NO. D10744/17 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) AISHA MOHAMED RICHARD ANDREANSKY, for the APPLICANT ) APPLICANT ) ) - and - ) ABDI MOHAMED ) ACTING IN PERSON RESPONDENT ) ANDREA JENNIFER HIMEL and RICHARD ANDREANSKY ADDED PARTIES ON THE MOTION ) SUSAN M. SACK, for ANDREA JENNIFER HIMEL MICHAEL ZALEV, for RICHARD ANDREANSKY ) ) ) ) HEARD: AUGUST 2, 2018 JUSTICE S.B. SHERR ENDORSEMENT

Part One – Introduction [ 1 ] The respondent, Abdi Mohamed (the father) has brought a motion to set aside the temporary consent order of Justice Carolyn Jones, dated November 6, 2017 (the consent order).

The consent order permitted the applicant, Aisha Mohamed (the mother) to amend her Application to include a child support claim for an additional child of the parties [1] and required the father to provide the mother with specified financial disclosure. [ 2 ] The father also seeks an order that an investigation for professional misconduct be commenced against Andrea Jennifer Himel, the duty counsel who assisted him on November 6, 2017, and against Richard Andreansky, the mother’s counsel. [ 3 ] Ms. Himel and Mr.

Andreansky are parties to this motion pursuant to subrule 14 (3) of the Family Law Rules (all future references to rules in this decision are to the Family Law Rules ). [2] They have retained separate counsel to represent them. [ 4 ] The mother, Ms. Himel and Mr. Andreansky ask that the father’s motion be dismissed with costs. [ 5 ] The father filed three affidavits in support of his motion. Ms. Himel and Mr. Andreansky also filed affidavits. Attached to Ms. Himel’s affidavit was a copy of the transcript of the court appearance held before Justice Jones on November 6, 2017 (the transcript).

The court also read the factums and statements of law filed by the father and on behalf of Ms. Himel and Mr. Andreansky. [ 6 ] The court heard the father’s motion on August 2, 2018 and orally dismissed it as it lacked any merit. It advised the parties that written reasons for the decision would follow. The court then heard costs submissions and advised the parties to the motion that its costs decision would be included in the written reasons. [ 7 ] These are those reasons. Part Two – Facts [ 8 ] The mother and the father were married in 1992.

They have been separated for many years. [ 9 ] On April 19, 2017, the mother issued an application seeking child support for one child and for spousal support. The mother also sought retroactive support orders. [ 10 ] On July 14, 2017, the father filed his Answer. [ 11 ] On November 6, 2017, the mother and the father attended for their first case conference before Justice Jones. The mother was represented by Mr. Andreansky.

The father did not have counsel. [ 12 ] In her case conference brief, the mother requested leave to amend her Application to add a claim for child support for the second child and sought an order that the father provide her with specified financial disclosure. [ 13 ] The father appeared on his own behalf at the start of the case conference. Justice Jones held the matter down so that he could consult with duty counsel. [ 14 ] The father met with duty counsel, Ms. Himel.

[ 15 ] When the case conference resumed, Ms. Himel assisted the father in court. Justice Jones asked if the parties had been able to narrow or resolve any of the identified issues. Mr. Andreansky told Justice Jones that the father had agreed to produce some of the items of financial disclosure set out in the mother’s case conference brief, but objected to producing others. [ 16 ] Justice Jones conferenced the disclosure issues and made suggestions regarding the items that were in dispute.

For instance, the father objected to producing evidence about real estate property held abroad because he said that he owned none. Justice Jones suggested that he swear an affidavit stating this. She also suggested that the father produce a job search list. [ 17 ] Justice Jones also conferenced the father’s ability to earn income. She discussed the father’s work history directly with him. Ms.

Himel, on the father’s behalf, submitted that the father was unable to pay support at that time because he and his partner had children at home and were living on student loans and child tax benefits. [ 18 ] Justice Jones indicated that she was not prepared to make a temporary support order as the father was representing that he earned no income.

A motion, she said, would be required for the mother to obtain an order for temporary support. [ 19 ] Justice Jones then conferenced the issue of the amendment of the mother’s Application and told the parties that they should agree to this and put this term into a consent. Ms. Himel submitted that the father would need time to file an Amended Answer. [ 20 ] Justice Jones then held the matter down so that the parties could execute the consent on the issues of disclosure and the amendment of pleadings. [ 21 ] Mr. Andreansky next prepared a draft consent regarding these issues.

The draft consent also included a term that approval of the order by the father would be dispensed with. [ 22 ] The father reviewed the consent with Ms. Himel and signed it in front of her. [ 23 ] When the matter returned to court, Mr. Andreansky presented the consent to Justice Jones. Ms. Himel did not return with the father to court – the consent having been completed. Justice Jones made a minor amendment to the consent to clarify that the bank statements the father had agreed to produce would be his monthly statements. She also fixed dates for service of the Amended Application and the Amended Answer.

She discussed with the father when he should provide the disclosure that he had agreed to. The father agreed to provide this disclosure by March 30, 2018. Justice Jones explained what changes she had made to the consent and asked the parties to initial them, which they both did. [ 24 ] Justice Jones adjourned the matter until April 27, 2018 for a further case conference. She directed Mr.

Andreansky to prepare the formal court order, which he did. [3] [ 25 ] The mother issued her Amended Application on January 5, 2018. [ 26 ] The father deposed that he received the issued order from the court on January 15, 2018. [ 27 ] Mr. Andreansky was served with the father’s Amended Answer on February 6, 2018. [ 28 ] The father issued this motion on March 29, 2018 and served Mr. Andreansky’s office with his motion materials. This was the only communication that Mr. Andreansky had received from the father since the case conference was held on November 6, 2017.

It was also one day before the father’s disclosure was due.

[ 29 ] On April 27, 2018, Justice Jones adjourned the father’s motion and directed him to serve Ms. Himel and Legal Aid Ontario with his motion materials. [ 30 ] Counsel for Mr. Andreansky subsequently moved by Form 14B for leave to obtain the transcript. The father opposed this motion. [ 31 ] On June 7, 2018, Justice Roselyn Zisman granted the Form 14B motion request and reserved the costs of the motion. Part Three – The father’s position [ 32 ] The father claims that Ms. Himel and Mr.

Andreansky colluded together to defraud and deceive him in order to obtain the consent order. [ 33 ] The father feels that these lawyers violated his rights by including a term in the consent that his approval to the order be dispensed with. He believes that there is no authority for the court to make such an order. [ 34 ] The father believes that Ms. Himel gave him bad advice about what disclosure he had to provide to the mother and about the proposed amendment to the mother’s Application. He claims that she was negligent.

In his submissions at this motion, the father asked the court to change terms of the consent order if it chose not to set it aside. [4] The father wrote at paragraph 14 of his affidavit sworn on March 29, 2018: I am now convinced that the demands for these documents are intended purely to engage in

an act of intruding into my personal life and have nothing to do with the best interest of either my son Hassan Mohamed or my daughter Anab Mohamed. Part Four – Evidence of Ms. Himel and Mr. Andreansky [ 35 ] Ms. Himel and Mr. Andreansky both deny the father’s allegations of fraud, collusion and deceit, and in the case of Ms. Himel, negligence. [ 36 ] Ms. Himel deposed that she inquired about the father’s income.

The father told her that he was not employed, he had completed his paralegal studies and he intended to rewrite his paralegal licensing examinations in February, 2018 after having previously failed the paralegal tests three times. She discussed the issue of imputation of income with him and the issue of financial disclosure. [ 37 ] Ms. Himel deposed that at no time did the father correct any of the submissions she made to Justice Jones. [ 38 ] Ms. Himel asked Mr. Andreansky to prepare the first draft of the consent after these issues were conferenced with Justice Jones. [ 39 ] Mr.

Andreansky prepared the draft consent. He checked the box that says “We agree that there will be no need for approval as to form and content of this order with a large “X”. The father admitted that it was checked off before Mr. Andreansky gave the consent to Ms. Himel to review with him. [ 40 ] Ms. Himel deposed that she thoroughly reviewed the consent with the father and he signed it. She said that she told the father that it was his choice whether or not to sign it. The father made no changes to it. He initialed all the relevant parts of the consent. Ms.

Himel deposed that the father did not object to the term that his approval of the order would be dispensed with. [ 41 ] Mr. Andreansky deposed that his client also signed the consent and initialed each part of it. He then went back into court with the mother and the father to have the consent approved by Justice Jones.

Part Five – Request for investigation [ 42 ] The court has no jurisdiction to order that an investigation be commenced against Mr. Andreansky and Ms. Himel for professional misconduct as requested by the father. [ 43 ] Even if the court had such jurisdiction, it would not make this order. There is absolutely no evidence of professional misconduct by either Mr. Andreansky or Ms. Himel in this matter. Part Six – Father’s request to set aside the consent order 6.1 Legal considerations [ 44 ] The court has jurisdiction to set aside a consent order under subrule 25 (19). See: Gray v.

Gray , 2017 ONCA 100 . [ 45 ] Subrule 25 (19) reads as follows: CHANGING ORDER — FRAUD, MISTAKE, LACK OF NOTICE 25(19) The court may, on motion, change an order that, (

a) was obtained by fraud; (

b) contains a mistake; (

c) needs to be changed to deal with a matter that was before the court but that it did not decide; (

d) was made without notice; or (

e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present. [ 46 ] The father has framed his motion pursuant to clauses 25 (19) (

a) and (d). [5] [ 47 ] Setting aside an order under clause 25 (19) (

a) requires a high threshold. Fraud within this clause does not have a special meaning outside of the common law. A moving party must clearly prove that the other party knowingly or recklessly made a false statement with knowledge of the falsehood and did so with wrongful intent. See: Hatuka v. Seigel, 2017 CarswellOnt 14911 (SCJ) , per Justice Heather McGee. [ 48 ] In P.M. v. S.M., 2014 ONCJ 541 , at paragraphs 36 to 38 , this court reviewed the jurisprudence about requests to set aside orders on the ground of fraud and noted the following:

a) The fraud alleged must be proved on a reasonable balance of probability. The more serious the fraud, the more cogent the evidence is required.

b) The fraud must be material, going to the foundation of the case.

c) The evidence of fraud must not have been known at the time of trial by the party seeking to rely on it. The party must show that there has been a new discovery of something material, in the sense that fresh facts have been found, which, by themselves or in combination with previously known facts, would provide a basis for setting aside the order.

d) If a litigant wishes to challenge a procedural irregularity in a court order or pleading, they should do so promptly. They shouldnot be taking substantive steps in a case and waiting until a later time to proceed with the procedural challenge. This is known as the“fresh step principle”.

While the “fresh step” principle is not an absolute bar to the court considering a procedural attack on an order aftera substantive step is taken in a case, consideration of the principle is consistent with the primary objective in rule 2 when determiningwhether it is just in the circumstances to set aside or change an order. [49] The court also has the authority to set aside a consent order where there are proven grounds of common mistake,misrepresentation, fraud or any other ground which would invalidate a contract. See: Joshi v. Joshi, 2014 ONSC 4677; Webster v. Suteu,2015 ONCJ 538. [50] In Ruffudeen-Coutts v.

Coutts, 2012 ONCA 65, at paragraph 64, the court stated that a consent order could also be set asidebased on evidence of duress or undue influence. [51] The Court of Appeal in in McCowan v. McCowan, (ONCA), made the following comments about settingaside consent judgments: ……a consent judgment is final and binding and can only be amended when it does not express the real intention of the parties or wherethere is fraud. In other words, a consent judgment can only be rectified on the same grounds on which a contract can be rectified.

In my view, it is well established that a consent judgment may be set aside on the same grounds as the agreement giving rise to thejudgment. These grounds go to the formation of the agreement, not to its subsequent performance. Evidence of non-performance may,however, be relevant to the issue whether the underlying agreement was so tainted in its formation that it should be invalidated. 6.2 Analysis and findings [52] There was no evidence that Ms. Himel and Mr. Andreansky colluded together or defrauded the father.

The father did not meet hisonus to set aside the consent order based on clause 25 (19) (a). [53] The father also did not meet his onus to set aside the consent order based on clause 25 (19) (d). The order was made with noticeto him. [54] The evidence shows that the father participated in negotiating the terms of the consent order.

His objections to the mother’sinitial disclosure request were conferenced before Justice Jones before the consent was reached. [55] The consent sets out the following: it is a binding contract; the father received advice from duty counsel before he signed it; noone forced him to agree to its terms; he signed the consent of his own free will; and it would be incorporated into a court order. [56] The father acknowledged that he received a copy of the consent. He was in court when the consent was reviewed by JusticeJones and the order was made. He expressed no concerns about the consent with her.

He discussed with Justice Jones the date when hewould provide the mother with the disclosure set out in the consent. He knew what he agreed to. [57] The father has completed his paralegal course – he just hasn’t passed the final exams. He knew or should have known that hewould be bound by the terms of the consent order. [58] There was no evidence of misrepresentation, duress or undue influence by either Ms. Himel or Mr. Andreansky. [59] There was also no evidence that either Ms. Himel or Mr. Andreansky acted unprofessionally.

[ 60 ] There was no evidence that Ms. Himel acted negligently. [ 61 ] To the contrary, the evidence shows that both Ms. Himel and Mr. Andreansky acted very professionally and responsibly in this matter. [ 62 ] This was (or should have been) a very routine support case. The father claimed that he could not afford to pay any support due to his second family obligations and because he had still not passed his paralegal exams. The father had previously run businesses in Kenya. The mother was entitled to a full financial picture from him to see how he had been supporting himself and his family.

She needed proper disclosure from him to assess her retroactive support claim and to determine if there was a basis to impute income to him for support purposes. [ 63 ] The mother had set out her requests for disclosure in her case conference brief. The requests were routine. [ 64 ] It is evident from the transcript that Ms. Himel had reviewed the mother’s initial disclosure requests with the father, since the disclosure items that he objected to were subsequently conferenced with Justice Jones. [ 65 ] Ms. Himel also advocated the father’s position regarding his inability to earn income before Justice Jones.

The father did not correct anything that she said to the court about him, even when Justice Jones was questioning him about his work history. [6] Justice Jones made no order for support that day. The father certainly wasn’t prejudiced by Ms. Himel’s representation that he intended to find work right away once he passed his paralegal exams. [7] [ 66 ] Justice Jones conferenced the disputed disclosure items and made suggestions to resolve these issues. She told the parties to consent to the amendments to their pleadings.

She then held the case down so that the parties could write out the terms of the consent. [ 67 ] Mr. Andreansky prepared the consent based on the discussions with Justice Jones. This court has reviewed that consent. All of the disclosure items listed in it are basic, reasonable and necessary to properly determine the support issues. If Ms. Himel strongly advised the father that he should sign the consent, this was very good advice.

Otherwise, the disclosure would probably have been ordered and the father would have been exposed to a costs order. [ 68 ] Further, the court would have undoubtedly ordered the requested amendment to the Application to include a support claim for the second child had the father objected to it. Any advice to agree to the amendment was sound advice and likely saved the father costs. [ 69 ] The father provided no evidence contradicting Ms. Himel’s evidence that she reviewed the draft consent with him, he made no changes to it and he initialed and signed it. [ 70 ] The father expressed concern that Ms. Himel and Mr.

Andreansky were speaking privately together after Justice Jones had held the matter down. This is not unusual. Counsel should be communicating with each other about how to draft the terms in a consent and then make recommendations to the people they are assisting. [ 71 ] The father spent much of his time on this motion expressing his concern that his approval of the order as to form and content had been dispensed with. He submits that this constituted fraud. He seemed to think that if this term had not been included he could have challenged the terms of the consent at a later opportunity.

He is very mistaken. [ 72 ] The Ontario Court of Appeal in Chitsabesan v. Yuhendran, 2016 ONCA 105 , writes at paragraph 11 : …. First, the process to settle an order has a narrow purpose: "to ensure that the formal order accurately sets out the intention of the court as reflected in the endorsement or reasons for decision": Paul Perell and John Morden, The Law of Civil Procedure in Ontario, 2nd ed.

(Toronto: LexisNexis, 2014), at para. 11.29. The process of settling an order is not an opportunity for either party to re-argue issues already decided in an effort to change the result set out in the judge's reasons. Although a judge is not functus officio where the order has not been signed and entered and therefore retains jurisdiction over a matter, the instances in which it might be in the interests of justice to withdraw reasons of the court and rehear the case on the merits will be "rare": Pastore v.

Aviva Canada Inc. , 2012 ONCA 887 , 300 O.A.C. 355 , at para. 9 . [ 73 ] The father also submitted that the court had no jurisdiction to dispense with his approval of the order as to form and content, even if he consented to this. [8] Again, he is mistaken. [ 74 ] Courts across Ontario routinely make orders dispensing with a party’s approval of an order as to form and content and certainly accept that party’s consent for such waiver. There are a variety of reasons for making such orders – usually to expedite the process. The court has the ability and the obligation to control its process. [ 75 ] Counsel for Mr.

Andreansky provided the court with two examples of courts making orders dispensing with a party’s approval to an order. In He v. Fu , 2014 ONSC 4453 , Justice Kiteley dispensed with a party’s approval of orders as to form and content, anticipating a lack of cooperation from that party. A similar order, dispensing with a party’s approval of an order as to form and content, was also recently made by the Ontario Court of Appeal in Schwilgin v. Szivy , 2017 ONCA 453 . [ 76 ] Here, the father acknowledged that he read the term in the consent that his approval of the order would be dispensed with.

It was clearly checked as being a term of the consent. There was no evidence that he objected to this at the time with Ms. Himel. He did not object to this term in front of Justice Jones. He did not let anyone know that he objected to this term until one day before his disclosure was due. [ 77 ] The issued order is consistent with the terms of the consent.

The father suffered no prejudice having had his approval to the order dispensed with. [ 78 ] The father offered no new material information that he had discovered since November 6, 2017 that would justify setting aside the consent order. [ 79 ] The father also took a fresh step in this case before objecting to the consent order. He served and filed his Amended Answer. [ 80 ] The father waited from November 6, 2017 until March 29, 2018 to object to the consent order – far too long. He never explained the delay, even when the issue of delay was raised by the responding parties to this motion.

It is likely no coincidence that his financial disclosure was due the next day. [ 81 ] The father unreasonably objected to the motion brought by Mr. Andreansky’s counsel to obtain the transcript. The transcript demonstrates the routine nature of the issues before the court that day. It also shows that the father was treated very fairly and respectfully by Mr. Andreansky, Ms. Himel and the court. [ 82 ] The father has still not provided any of the disclosure ordered by Justice Jones.

He also has not paid any child support despite the mother having started this case in April, 2017. [ 83 ] The father has succeeded in delaying this case (and a determination of his obligation to pay support) by bringing this motion, which the court finds to be frivolous, misguided and mean-spirited. [ 84 ] For all of these reasons, the court dismissed the father’s motion. Part Seven – Costs

[85] Counsel for Mr. Andreansky and Ms. Himel asked to make costs submissions upon hearing the court’s decision on August 2,2018 to dismiss the father’s motion. The mother is not seeking costs. [86] The court heard the costs submissions and indicated that it would include its costs order in this decision. [87] Ms. Himel is seeking her costs of $7,178.27. Mr. Andreansky is seeking his costs of $7,141.45. [88] The father submitted that no costs should be ordered. [89] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 , [2009] O.J. 1905 (Ont.

C.A.), stated that modern costsrules are designed to foster three fundamental purposes, namely: to partially indemnify successful litigants for the cost of litigation, toencourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflectwhat the court views is a fair and reasonable amount that should be paid by the unsuccessful party. [90] Subrule 2 (2) adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases aredealt with justly.

This provision needs to be read in conjunction with rule 24. See: Sambasivam v. Pulendrarajah, 2012 ONCJ 711, [2012] O.J. No. 5404 (Ont. C.J.). [91] Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. Costs can be used tosanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it hasbecome a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderlyadministration of justice. See: British Columbia (Minister of Forests) v.

Okanagan Indian Band, 2003 SCC 71 , 2003 S.C.C. 71,paragraph 25. [92] Subrule 24(1) creates a presumption of costs in favour of the successful party. Ms. Himel and Mr. Andreansky were thesuccessful parties on this motion. The father did not rebut the presumption that they are entitled to costs. [93] In making this decision, the court considered the factors set out in subrule 24 (12), which reads as follows: 24

(12) In setting the amount of costs, the court shall consider,

a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: (

i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle including offers that do not meet the requirements of rule 18, iv) any legal fees, including the number of lawyers and their rates,

v) any expert witness fees, including the number of experts and their rates, vi) any other expenses properly paid or payable; and (

b) any other relevant matter. [94] Mr. Andreansky and Ms. Himel acted reasonably. The court has found that the father’s motion was frivolous, misguided andmean-spirited. The father also unnecessarily increased Mr. Andreansky’s costs by objecting to his motion to obtain the transcript. [95] This motion was very important to Ms. Himel and Mr. Andreansky. The father made serious allegations of fraud and attackedtheir integrity, professionalism and reputation. It was appropriate that they vigorously defend themselves from these unmeritedallegations.

[96] The motion was not complex or difficult. [97] The court has reviewed the bills of costs presented by counsel for Ms. Himel and Mr. Andreansky. The court finds that the timeand rates claimed are reasonable and proportionate for counsel of their skill and experience. Counsel were able to have junior counsel attheir firms do some of the legal work at lower rates. Counsel prepared factums and in the case of Mr. Andreansky, a very helpfulcompendium. [98] The court also finds that the expenses claimed by counsel for Ms. Himel and Mr.

Andreansky are reasonable. [99] The court considered the father’s ability to pay the costs order. See: MacDonald v. Magel (2003), (ON CA),67 O.R. (3d) 181 (Ont. C.A.). He presently earns no income. He advised the court that he cannot afford to pay for his paralegal exams.He says that he looks after his four children at home. He says that his partner is a full-time student. [100] However, a party’s limited financial circumstances will not be used as a shield against any liability for costs, but will be taken intoaccount regarding the quantum of costs, particularly when they act unreasonably. See: Snih v.

Snih, (Ont. SCJ pars.7-13). In the case of Takis v. Takis, [2003] O.J. No. 4059 (S.C.J.), the court found that the respondent’s lack of income and assets,though a relevant consideration, could not be used as a shield in unnecessary litigation. [101] The court adopts the comments of Justice Heather McGee in Mohr v.

Sweeney, 2016 ONSC 3338 , 2016, where shewrites, “those who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessaryproceedings.” [102] This is a cautionary tale that a little legal knowledge can be a dangerous thing – particularly when combined with the poorjudgment and bad intent demonstrated by the father. [103] The father should never have brought this motion. What is revealing about him is how he responded to receiving the respondingevidence and case law from counsel for Ms. Himel and Mr. Andreansky. At that point, he should have withdrawn his motion.

It shouldhave been obvious to him that he could not succeed. Instead, as counsel for Ms. Himel and Mr. Andreansky put it, the father “doubled-down” on his allegations of impropriety against their clients. [104] The father’s actions in this matter are not benign. He has attacked the reputations of both Ms. Himel and Mr. Andreansky. Theyhave had to retain counsel to defend themselves and have had this matter, unfairly, hanging over their heads.[9] He has delayed this caseand used up valuable court resources at this very busy court site.

His children have not had their support claim heard and are notreceiving any support from him. [105] Further, motions of this nature have the potential of creating a chilling effect on lawyers acting for clients of modest means and ofharming the administration of justice. [106] We are fortunate at this court site to have committed and caring duty counsel who do their very best to assist self-representedlitigants, who are often vulnerable and overwhelmed. For many of the litigants of modest means at our court, English is their secondlanguage.

Their need for legal assistance can be profound. [107] Duty counsel work very hard (with many cases to attend to each day), to explain the process to litigants, provide preliminaryassessments about their case, advise them about what evidence they will be required to provide, assist them when they see the judge andto try and fairly resolve as many issues as they can.

They are invaluable contributors to the family justice system. [108] We want to encourage duty counsel to continue to go “above and beyond” when assisting people at court, as they have in the past.The risk of a motion of this nature is that it can result in duty counsel acting much more cautiously and taking a less pro-active approachto cases. This would be a huge disservice to the users of our court.

[ 109 ] Mr. Andreansky is a senior counsel who is assisting the mother on a legal aid certificate. The court is well aware that lawyers who take family law cases on legal aid certificates make very little money after paying their practice expenses. Lawyers like Mr. Andreansky will often take these cases due to their commitment to social justice for persons of modest means.

Motions of this nature only discourage such lawyers from taking on these cases. [ 110 ] This court wants to send a very strong message that unwarranted and reckless allegations of fraud against lawyers who do this work will not be condoned. [ 111 ] Litigants cannot falsely claim fraud against counsel and then expect to hide behind their impecuniosity. This is an appropriate case to order full recovery costs. The father will be required to pay the full costs claimed by counsel for Ms. Himel and Mr. Andreansky. [ 112 ] The court has little confidence that the father will willingly pay any of these costs.

It will not make an order that he can pay the costs over a period of time. The order will be that the costs are payable forthwith. Part Eight – Conclusion [ 113 ] The father’s motion is dismissed. [ 114 ] The father shall pay Ms. Himel’s costs of the motion fixed in the sum of $7,178.27, inclusive of fees, disbursements and costs, payable forthwith. [ 115 ] The father shall pay Mr. Andreansky’s costs of the motion fixed at $7,141.45, inclusive of fees, disbursements and costs, payable forthwith. [ 116 ] The court thanks counsel for Ms. Himel and Mr. Andreansky for their excellent presentation of this motion.

Released: August 7, 2018 Justice S.B. Sherr