2017 ONSC 7502, 2017 ONSC 7502

CITATION : Piacenti v. Thomson, 2017 ONSC 7502 COURT FILE NO.: 14-2612 DATE: 2017/12/14 SUPERIOR COURT OF JUSTICE – ONTARIO RE: Michael Piacenti, Applicant AND: Ashley Thomson, Respondent BEFORE: Madam Justice Liza Sheard COUNSEL: Applicant, Self-Represented Leighann Burns, for the Respondent HEARD: September 25, 26, 2017 COSTS ENDORSEMENT [ 1 ] On September 25, 2017 this matter was called to trial. I was scheduled to be the trial judge.

However, prior to commencing the trial, it was communicated to the Court that the applicant and the respondent were very close to a settlement and that the applicant sought to use the time set aside for trial to conduct a full-day settlement conference. Both parties agreed to do so. On that day, the applicant was represented by counsel, Deborah E. Bennett, and the respondent was represented by counsel, Leighann Burns. [ 2 ] Settlement discussions began at approximately 11:35 a.m. on September 25, 2017. The court reporter was excused as both parties were represented.

The settlement conference continued throughout the day and, it appeared, that great progress had been made. An agreement appeared to have been reached on a number of issues. At the close of the court day, all parties agreed that we would resume the settlement conference on September 26, 2017 in the hope and the expectation of finalizing a settlement. [ 3 ] On September 26, 2017, the parties returned to the courtroom to resume the settlement conference. At the outset of that day, counsel for the applicant advised that her client no longer wished to participate in the settlement conference.

At that point, it appeared we would require a court reporter and the matter resumed just before 11:00 a.m. [ 4 ] Counsel for the applicant advised that she had had a change in her instructions and that her client wanted her to articulate to the Court that when the matter was called yesterday, he was ready to proceed but felt that the respondent was not ready and that he believed that the respondent was planning to “ambush him” at trial.

Counsel for the applicant also advised that her client wanted her to ask the Court to make an order for financial disclosure from the respondent and an order directing that the respondent undergo a psychological assessment. The applicant sought the assessment because he believed that the respondent was not supportive of the applicant’s relationship with his child. [ 5 ] I did not make either order. Further, the request for an order that the respondent be assessment had been brought before Justice Kane on January 6, 2017.

In his endorsement of that date, Justice Kane states that the applicant sought a psychiatric assessment of the respondent because it was needed due to the respondent’s failure to support the applicant’s relationship with the parties’ child. The Order was not granted by Justice Kane. [ 6 ] In the course of the submissions made in the morning of September 26, 2017, the applicant asked to speak directly to the Court, which he was permitted to do. Ms.

Bennett also asked the Court to remove her as solicitor of record. [1] [ 7 ] When it became clear that the settlement conference would not proceed and that, by reason of the settlement conference, the parties had lost their trial judge (me), as well as their trial date due to the unavailability of any other judge, the respondent asked for her costs in the way of the settlement conference. [ 8 ] I invited the parties to make written costs submissions with respect to the respondent’s for costs for the settlement conference.

Those submissions have been received and this decision is made in consideration of those written submissions. [ 9 ] The respondent seeks her costs pursuant to Rules 24(7) and (8) of the Family Law Rules which provide as follows: ABSENT OR UNPREPARED PARTY

(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice. O. Reg. 114/99, r. 24 (7) ; O. Reg. 235/16, s. 4 (1). BAD FAITH

(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. O. Reg. 114/99, r. 24 (8) . [ 10 ] The respondent submits that the trial did not proceed on September 25, 2017 because the applicant asked for a settlement conference instead.

Although the respondent was skeptical as there had been four prior settlement and combined conferences, she agreed to consider proceeding with a fifth settlement conference but, before doing so confirmed with the trial co-ordinator that, should the settlement conference prove unproductive, another judge may be found to conduct the trial. [ 11 ] The respondent states that a full day was spent canvassing resolution and that the parties agreed to continue the settlement conference on September 26, 2017. On that day, the applicant announced that he wanted to proceed to trial.

This announcement appeared to take everyone, including the applicant’s own counsel by surprise. [ 12 ] The respondent’s factual assertions are in keeping with the record, to the extent that the proceedings were recorded, with my endorsement of September 26, 2017 and with memory and notes of the events of September 26, 2017. [ 13 ] In his submissions, the applicant appears to blame Ms Bennett for his having agreed to proceed with a settlement conference. He also asserts that the respondent was not ready for trial and had failed to provide full disclosure or obtain valuation information.

The applicant claims that, while he attended the settlement conference in good faith he concluded that the respondent was not acting in good faith. [ 14 ] In his costs submissions, the applicant also asserts that he has had “the misfortune to have five lawyers who all failed to ask the most basic questions of the Applicant, who assumed that standard gender biased positions and who all failed file a Net Family Property Statement or address my request for a motion that the court would be better able to reach an appropriate decision regarding the Respondent ability or lack thereof for her to support the child’s relationship with her father.” (sic) [ 15 ] The applicant’s submissions suggest that the applicant was not prepared or willing to proceed with the trial because he believed he did not have full disclosure from the respondent.

However, the applicant also acknowledges that although he is the applicant and though his matter was called for trial in September 25, 2017, he agreed instead to proceed with a settlement conference. [ 16 ] The applicant asserts that it is the respondent who, while alleging bad faith against him, has, herself, acted in bad faith and that when he realized that she was “not negotiating in good faith and had no intention of acting in the child’s best interests, the applicant asked the settlement conference be terminated and that the matter go to trial.” [ 17 ] There is little doubt in my mind that the applicant’s counsel was caught entirely by surprise by her client’s position on day two of the settlement conference.

It is impossible for the Court to assess the accuracy of the applicant’s submissions with respect to discussions he may have had with Ms. Bennett on September 25, 2017. However, in her submissions on September 26, 2017 Ms. Bennett made it abundantly clear she was voicing her client’s instructions about what she must say to the Court and that she could no longer act for him. [ 18 ] There is no reason to believe that the respondent was acting in bad faith during the settlement conference of September 25, 2017.

At the conclusion of that day, the parties through their counsel, expressed satisfaction with matters that were accomplished that day and all agreed to return the following day in the hope and expectation that the matter would be finally resolved on the second day. [ 19 ] The respondent asks the Court to conclude, which I do, that the agreement by the applicant to engage in settlement discussions was a way to avoid his case proceeding to trial.

That conclusion is based, in part, on the timing of the applicant’s withdrawal from settlement discussions and also upon the orders he requested on September 26, 2017 for disclosure and a psychiatric assessment of the respondent. It is reasonable to conclude that the applicant did not want to proceed with his trial on September 25, 2017 and used the settlement conference to derail the trial. [ 20 ] I also conclude that the applicant did, in fact, act in bad faith and that the respondent is entitled to her costs on a full recovery basis pursuant to the provisions of Rule 24 (8).

I also find that the applicant contributed to the settlement conference being unproductive and that costs should be awarded against him pursuant to Rule 24 (7). [ 21 ] The applicant does not provide any submissions with respect to the amount of costs being sought by the respondent. In her submissions, the respondent provided the Court with dockets from her counsel of September 25, 2017 which show a total of six hours docketed at an hourly rate of $200.00. For September 26, 2017, 2.5 hours were docketed.

The total docketed time for September 25 and 26 was 8.25 hours which, with HST totals $1,864.50. [ 22 ] For the reasons set out above, I awarded those costs to the respondent payable by the applicant immediately. L. Sheard J. Released: December 14, 2017

CITATION : Piacenti v. Thomson, 2017 ONSC 7502 COURT FILE NO.: FC-142612 DATE: 2017/12/14 ONTARIO SUPERIOR COURT OF JUSTICE RE: Michael Piacenti, Applicant AND: Ashley Thomson, Respondent BEFORE: Madam Justice Liza Sheard COUNSEL: Applicant, Self-Represented Leighann Burns, for the Respondent costs ENDORSEMENT L. Sheard J. Released: December 14, 2017