A few weeks ago we blogged about a decision in which a father attempted to alter his access schedule with his child during COVID-19. The court had determined that the father’s request was not urgent. Our own Irina Davis represented the mother in that trial and did so again during a recent hearing where costs were the issue being resolved. We wanted to take an opportunity to follow up on that.
The original decision
The issue during the original trial revolved around the father’s request to have his access to the couple’s child expanded. The parties were married in 2016 and separated in 2018. They had one child together. The father was charged with assaulting the mother in December 2018 and again with failing to comply with an undertaking in February 2019.
During COVID-19, the father had applied to the court to have the length of his daily visits increased as well as a date for overnight access to be determined.
At the original trial the court was critical of the father’s refusal to provide details about who he was living with at the time. The court also determined the matter was not urgent and dismissed the motion.
A hearing for costs
At the hearing on costs the court noted that the mother was completely successful at the motion hearing, stating that the father had ongoing access and that just because the access was not what he wanted, it did not make the matter urgent. The court noted, “Interestingly, as I observed in my endorsement, neither party had made any attempt to get the Office of the Children’s Lawyer involved, despite the order made by Justice Price requesting (with the consent of the parties) its involvement.”
The mother sought costs amounting to $23,475.86, and in the alternative, she sought costs on a substantial indemnity basis.
The father stated that he acted in good faith when seeking the court’s assistance on an urgent basis and asked for no costs to be awarded to either party. Additionally, the father stated that if any costs were to be awarded to the mother, they should be taken from the net proceeds of the matrimonial home. The father said he was struggling financially, and that the mother has not contributed to her share of the mortgage on the home.
However, the court noted that a January 13, 2020 Minutes of Settlement contemplated that the father would possibly purchase the mother’s interest in the home. He had been asked to produce all documentation in support of his efforts to re-finance. If he was unable to do so, the home would be sold.
The court was critical of the father’s failure to get re-financing, using COVID-19 as an excuse not to do so. The court said of the father’s behaviour,
“ I also take into consideration that the father’s affidavits were unduly lengthy, dealing with issues not relevant to the motion before me. An additional affidavit was required because the father did not explain who was living in the matrimonial home. Given that he wanted to exercise access at the matrimonial home he should have anticipated the requirement to provide this information. This information would have been required at any time but the current pandemic and the steps people are taking to comply with health directives, made this information even more necessary.”
The court found that the costs owed by the father should not come out of the proceeds of the sale of the family home. Instead, it awarded $15,000 in costs to the mother, available within 30 days.
At Gelman Law, we understand that everyone is experiencing a difficult time under the current circumstances. We are remaining open to help our clients, but are taking precautions to keep safety paramount. While we may not be able to meet in our office, our lawyers are fully prepared to continue to offer all of our legal services paperless and conduct important meetings using digital technology. Call us at (844) 769-0737 or 1-844-769-0737 or contact us online if you have a family law matter you need help with.
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