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A judge criticized the “irresponsible” behaviour of a self-represented mother in a divorce case that had spanned roughly ten years. Among the mother’s inappropriate actions was the failure to show up for a motion date she had requested.

The Parties

Justice Rempel made a point of emphasizing the “relentless pace and complexity of the protracted legal proceedings between these parties”, noting that the mother had filed 430 documents over the roughly 10-year period that the case had been going on for.

The parties were seemingly disputing every aspect of their post-separation lives, including where their children would be living and with whom, section 7 expenses, child support, transfer of loyalty reward points, and access, among other issues. Each party had also, at various points during the proceedings, sought orders of contempt against the other.

A hearing date was scheduled by a case management judge for March 1, 2013. The hearing was intended to address the mother’s outstanding motions that included the issue of the loyalty reward points, retroactive variation of child support, and support-related relief. At the time of scheduling, the hearing date was more than three months away. The parties each received a case conference memo clearly setting out the time, date, and location of the hearing, and noted that the mother could participate via teleconference.

The “No Show” at a Motion Hearing

The mother faxed a letter to the court on Sunday, February 24, 2013 advising that she wanted to adjourn the March 1, 2013 hearing date. Justice Rempel responded via email the following day advising that an adjournment would not be granted until he heard from the father, and advising that the mother could request an adjournment at the March 1, 2013 hearing.

Unsurprisingly, counsel for the father objected to an adjournment.

The mother did not show up at the March 1, 2013 hearing, nor did she teleconference in at the designated time. The father requested that the mother’s motions be dismissed outright; however, rather than granting this request, Justice Rempel struck the mother’s motions off the list and ordered another hearing date to deal specifically with the costs that were incurred due by the “wasted motion date”.

Three days before the costs hearing date, the mother faxed another letter to the court requesting an adjournment yet again, claiming that her Ph.D program had placed “excessive demands” on her and that she had gotten her dates mixed up and allegedly teleconferenced the court on March 4th instead of March 1st.

In response to these claims, Justice Rempel stated that

The allegation by the mother that she missed the March 1, 2013 Hearing due to a calendar mix up stretches credulity past its breaking point.  The March 1, 2013 Hearing was set at the mother’s behest at the November 23, 2012 case conference and confirmed in the memo and reconfirmed in the case conference memo of January 18, 2013.  The mother also makes reference to the March 1st date in her letter of February 22, 2013…asking me to adjourn the March 1, 2013 Hearing.  The calendar mix up allegation made by the mother is simply unbelievable.

Justice Rempel advised the mother that her motions were not dismissed, but had been struck from the list and remained on the record; however, the next hearing date would deal strictly with the costs that had been incurred by her previous no-show.

The mother subsequently complained to the Chief Justice, who responded to inform the mother that he was declining to intervene in her matter.

The mother then attempted to convince Justice Rempel, via letter, that she should not have to pay any costs due to her limited resources, and that this would negatively impact her children.

“Irresponsible and Inappropriate Behaviour by a Litigant”

Justice Rempel noted the mother’s “troubling behavior” several times in his written decision noting that he “had to deal with a matter of increasing judicial awareness in Canada, namely, how to sanction or impose irresponsible and inappropriate behavior by a litigant”.

Justice Rempel went on to say that:

It must be obvious to the mother, even as an unrepresented litigant, that the time deadlines imposed at the case management meetings for the filing of affidavits and briefs and concluding cross examinations are significant and cannot be casually disregarded on a whim.  The mother must have known, or ought to have known, that the father would have already incurred significant legal costs in compliance with those deadlines when she attempted to cancel the March 1, 2013 Hearing on less than five business days notice.

Somehow the mother is also oblivious to the obvious fact that by running up the father’s legal bills she is also depriving her children of potential financial resources.

Moreover the mother somehow expects the court to ignore the fact that her last minute demand for an adjournment would not only have a significant financial impact on the father and the children but also on the court’s time and resources.  A half day was reserved for the hearing that she demanded and that time slot was denied to other litigants and made an already backlogged list even longer.

The court has a duty to administer its scarce resources wisely and cannot allow litigants to run roughshod over its own process by ignoring deadlines, the rules of court and capriciously failing to show up at scheduled hearings.

Counsel for the father requested an order of approximately $8,600 in solicitors/clients costs against the mother. However, Justice Rempel noted that the time the father’s lawyer spent preparing for the March 1, 2013 motion date could not be described as “time thrown away”. Even though the mother was a no-show on that day, her motions had not been dismissed. If they were ever to be heard in future, then the preparation time incurred by the father’s lawyer would not be lost.

As a result, no solicitor/client costs were awarded. The Judge did, however, make a costs award “significantly higher” than the tariff in order to send a strong message to the mother that “her disregard for the rules of the court and the meticulous timelines set out at the case management conferences and her unilateral decision to fail to appear…are totally unacceptable”.

The mother was ordered to pay the father $3,500 in costs.

Lessons Learned

Inappropriate or “irresponsible” behaviour by parties in family law proceedings will not be looked upon kindly by judges, particularly in a time when the judicial system is struggling with managing resources.

Individuals involved in family law proceedings are reminded to have reasonable expectations and to conduct themselves accordingly.

Justice Rempel said it best when he noted, about the mother in this case:

Adding to the difficulties of this case is the “customer-service” expectations that the mother brings to these proceedings. Unlike a retail environment, where the customer is king, the administration of justice cannot possibly proceed in any meaningful way if litigants adopt a customer-service mentality at the courthouse.

The courthouse is not a restaurant where reservations can be rescheduled at the last minute or simply cancelled on the whim of a litigant. Neither can a litigant pick and choose which procedural rules and time deadlines they wish to comply with. The court must impose sanctions on litigants who behave irresponsibly or recklessly.

The attitude and behaviour that the mother brings to this litigation is troubling as it only increases the intensity of the conflict and creates an environment in which any kind of settlement discussions are impossible.

If you have questions about separationdivorcechild support or any other family law issue, contact the experienced Toronto family lawyers at Gelman & Associates online or at (416) 736-0200 or 1-844-742-0200 for a confidential initial consultation. With six locations in Toronto and the surrounding areas, our offices are easily accessible by transit and off-highway.

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