Court File and Parties

Court File No.: Brampton 65/10 Date: 2013-03-14 Ontario Court of Justice

Between: Naadira Mungal, Applicant

— And —

Darryl Shazad Mungal, Respondent

Before: Justice S.R. Clark

"Revised" Costs Application

Written Submissions provided by Applicant on February 28, 2013 Written Submissions provided by Respondent on March 11, 2013 "Revised" Ruling released on March 14, 2013

Counsel: Ms. Bonnie Caplan-Stroeder, for the applicant Naadira Mungal Mr. Peter Dubas, for the respondent Darryl Shazad Mungal

CLARK, J.:

1:0 INTRODUCTION

[1] On February 14, 2013, the Court made a ruling on the applicant's access motion, and ordered, on a temporary basis, that the respondent only have supervised access to the subject children.

[2] The history and chronology of the various proceedings in Court has been set out in the February 14 ruling and will not be repeated here.

[3] The Court invited counsel for both parties to make written submissions on costs.

[4] Ms. Caplan-Stroeder, on behalf of the applicant mother, submitted her materials by fax on February 28, 2013.

[5] Counsel for the respondent faxed his materials on March 6, 2013. However, unfortunately, they did not come to the attention of the Court on or before the deadline (March 8, 2013). Apparently, the materials had been faxed to a number which is not routinely used by the judicial secretaries.

[6] The materials have now been re-faxed by counsel for the respondent.

[7] The Court prepared and faxed an endorsement to both counsel on March 13, 2013, indicating that it was not functus and that it would be in the interests of justice and fairness to consider the respondent's materials and to re-visit the March 11 ruling.

2:0 THE POSITIONS OF THE PARTIES

2:1 The Applicant

[8] The applicant's materials are quite extensive, consisting of 8 pages, plus a 3-page bill of costs.

[9] She is claiming total fees and disbursements, inclusive of HST, on a substantial/full indemnity basis in the amount of $12,009.64. Alternatively, on a partial indemnity basis, she is claiming total fees and disbursements, inclusive of HST, in the amount of $7,275.80.

[10] Suffice it to say that the applicant was successful in obtaining an order for supervised access. She had offered to settle in writing, for supervised access prior to the motion being heard, however, this was rejected by the respondent.

[11] The ultimate Court order was more restrictive than the applicant's offer to settle.

[12] Furthermore, the contempt motion brought by the respondent was withdrawn by him only shortly before the hearing of the access motion.

[13] Given the detail and quality of the materials filed by the applicant in support of her own motion, and her reply to the respondent's contempt motion, there has been significant preparation involved.

[14] Counsel for the applicant submits that, as a senior counsel with 22 years of experience, all materials were drafted and prepared by her without assistance from junior counsel or support staff.

[15] This costs application, according to the applicant, should turn on the unreasonable and rigid position taken by the respondent.

[16] Although one's ability to pay costs is a factor, the Court should consider that the respondent is employable, although he maintains the position that he is not. In due course, the Court will be asked to impute income to the respondent in subsequent Court proceedings.

[17] The respondent presently resides with his own mother, who has apparently paid a previous costs award on his behalf.

[18] Counsel for the applicant acknowledges that the principle of proportionality is important and must be considered in fixing costs. However, it should not ordinarily result in reduced costs where the unsuccessful respondent has caused the issues to be protracted and has put the applicant to such unnecessary expense.

2:2 The Respondent

[19] The essence of the respondent's position is that a continued and sustained manipulation by the applicant effectively forced him to commence Court proceedings. Despite his wish and desire to work out a compromise, he could not trust the applicant to refrain from such manipulation. Accordingly, he brought a motion for contempt in good faith.

[20] He also brought a motion to change a final order on the basis that there was now a material change in circumstances on the basis that his inability to find work because of his injuries from an accident would now allow him to be home on a regular basis. His motivation was to be available to help look after the children more frequently while the applicant was at work.

[21] Regarding the temporary order made by the Court on February 14, 2013, ordering supervised access by the respondent, he submits that the applicant did not volunteer any names of third parties who might have been agreeable to the supervision component. Furthermore, any names suggested by him were rejected by her.

[22] He submits that the applicant's materials contain a great deal of repetition and her leaving the "no stone unturned" approach was not necessary since she was merely saying the same thing over and over again.

[23] He submits further that the applicant's behaviour was unreasonable. He believes that once she became aware that he was unable to find work and that his health was failing, she exhibited a new "boldness" resulting in her breaching Court orders and denying him access which had not previously been the case. Furthermore, she would not divulge information about children's doctors, medicine, or school issues.

[24] Accordingly, he submits that the Court has the discretion to consider that there should be either no costs or substantially reduced costs, particularly if the successful party was acting unreasonably. He contends that the applicant brought these proceedings on herself by provoking him into litigious behaviour when she denied him access, and in not having any patience for his religious observances.

[25] Alternatively, the Court can also consider a "no costs" determination where there has been divided success. The order in this case is subject to review after four months and is, therefore, not permanent. The ultimate result is dependent on his visiting centre assessments. The Court should also consider his offer to settle. His claim in the Motion to Change is seeking only an extra two hours of access. He had made this request before the litigation commenced, however, the applicant refused to consider it.

[26] The Court should also give consideration to his financial position. He is not working. He does not own anything and has no assets.

[27] The Bill of Costs submitted by Mr. Dubas sets out total fees claimed in the amount of $13,106.00 inclusive of disbursements and HST. This is essentially the equivalent of the costs claimed by counsel for the applicant. Accordingly, although not articulated in this manner, Mr. Dubas is effectively asking the Court to consider that there should be a "set-off", since there was divided success on the motion. Even if the respondent is legally aided, costs should indicate the total amount of fees billed at the lawyer's normal rate.

3:0 ANALYSIS

3:1 Costs – The Governing Principles

[28] Rule 24(1) of the Family Law Rules ("the Rules") creates a presumption of costs in favour of the successful party. This is the starting point.

[29] The objective of the Court is to fix an amount for costs that is fair and reasonable for the unsuccessful party to pay, rather than an amount fixed by the actual costs incurred by the successful litigant.

[30] The overriding principle is reasonableness, so as to not produce a result that is contrary to the fundamental objective of access to justice. (Boucher v. Public Accountant's Council (Ontario), 71 O.R. (3d) 291).

[31] The tenor of the current Rules recognizes the increasing demand on limited Court and judicial resources, and the increasing costs of litigation.

[32] The Rules also attempt to encourage settlement, and discourage unnecessary or prolonged litigation, and unreasonable behaviour on the part of litigants and their counsel that is wasteful of time and money. (Children's Aid Society of St. Thomas (City) and Elgin (County) v. S.(L.), [2004] O.J. No. 289 at para. 31).

[33] Parties to litigation must understand that Court proceedings are expensive, time-consuming and stressful. They are not designed to give the litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side, and oblivious to the mounting costs of litigation.

[34] Matrimonial litigation is an occasion for sober consideration and thoughtfulness, rather than intemperate behaviour. (Heuss v. Surkos, 2004 ONCJ 141, [2004] O.J. No. 3351, at para. 20).

[35] Rule 24(1), therefore, carries significant weight in determining a party's entitlement to costs. This helps to ensure an awareness that the losing party will be responsible for at least a portion of the successful party's costs, which should encourage reasonable behaviour and discourage actions brought in bad faith.

[36] Rule 24(11) sets out the factors to be considered in setting the appropriate quantum of costs, including the following:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party's behaviour in the case;

(c) the lawyer's rates;

(d) the time properly spent on the case;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

3:2 Application of the Governing Principles to this Case

[37] Having regard to the above-noted factors, the Court finds as follows:

(a) The Importance, Complexity or Difficulty of the Issues

[38] Although the issue of supervised versus unsupervised access was important to the parties, it was not complex or difficult.

[39] The respondent, particularly with the help of counsel (although only retained shortly before the motion was heard) ought to have appreciated that the applicant was putting forward a compelling position. He did not put forward any alternative plan as to who could have served as a "supervisory" adult. Alternatively, if he did, it was not done formally, or with the necessary or appropriate import.

(b) The Reasonableness or Unreasonableness of Each Party's Behaviour in the Case

[40] The Court finds that the respondent was more motivated and inclined to malign the applicant as an unfit mother, and one who was performing "black magic" on the children, rather than putting forward cogent reasons why supervision was unnecessary.

[41] Although he cannot be faulted, necessarily, for rejecting the offer to settle since it was effectively asking him to agree to supervised access, nonetheless, his responding materials were so inflammatory that they not only militated against the merits of his position, but required the applicant to have to respond to these disturbing allegations.

[42] The respondent's view that litigation might not have been necessary had the applicant had not been so unreasonable in asking him to pay the lawyer's fee for the preparation of a travel consent, is simplistic.

[43] Furthermore, his position that his verbal behaviour to the applicant was not intended to offend is absurd. His logic and rationale that he would never think of using the same language in public as he did in private is completely missing the point. The private language he used in the communication log is most telling, and the more hurtful. These unfiltered thoughts and expressions of his anger and distorted view of the applicant is what is so odious.

[44] The Court does not find that the applicant's behaviours or actions are in any way manipulative. Rather, the Court finds that she was compelled to bring this motion because of the rigid and inflexible thoughts, actions and motivations of the respondent.

[45] Accordingly, the Court places significant weight on the unreasonable actions and behaviour of the respondent.

(c) The Lawyers' Rates

[46] Having regard to Ms. Caplan-Stroeder's years of experience, and the effective way in which the materials were prepared and her submissions were made in Court on the motion, there is no doubt that this was a labour-intensive exercise.

[47] Having regard to the Bill of Costs submitted by Mr. Dubas showing a comparable number of hours put into this matter at a comparable hourly rate tends to show that for a relatively uncomplicated matter, the respondent's materials could similarly be characterized as repetitive.

[48] In any event, the Court does not find that this was a shared-success situation. The applicant is clearly the successful party on the motion.

(d) Time Properly Spent on Case

(e) Expenses Properly Paid or Payable

[49] Both of these factors have been considered in the above-noted paragraphs.

(f) Any Other Relevant Matter

[50] Under sub-rule (f), the most common scenario is a party's ability to pay a costs award. The Court cannot ignore the best interests of the children, and thus, cannot ignore the impact of a costs award against a parent that would seriously affect their interests. The financial situation of the parties, therefore, is a relevant factor to consider. (M.(A.C.) v. M.(D.), 67 O.R. (3d) 181 at para. 42).

[51] The Court will always be inclined, therefore, to hold and reserve a residual discretion to be applied in those cases where a strict application of the Rules would be unjust, or would create an inordinate or undue hardship.

[52] The analysis may also include the question of the affordability and enforceability of a costs order. To ensure that the respondent has an outside chance of paying them, the Court may consider the income and assets of each party, the relative means of each party to bear his or her own costs, and the effect of the award on the ability of the respondent to meet the obligation imposed on him by the order. (J.F. v. V.C., [2002] O.J. No. 608).

[53] Although the case law requires the Court to consider the means of the parties, the respondent's meagre financial resources does not necessarily afford immunity from a costs order, but may affect the scale or quantum of same. (M.(L.C.) v. C.(A.), [2003] O.J. No. 4843, 49 R.F.L. (5th) 439).

[54] In other words, the respondent's limited financial circumstances may not be used as a shield against any liability for costs. It may be relevant to the issue of quantum, but not to the applicant's entitlement thereto. (Parsons v. Parsons, 31 R.F.L. (5th) 373).

4:0 CONCLUSIONS

[55] Notwithstanding that the respondent is legally-aided, the Court is still entitled to craft a costs award in a principled and purposive manner.

[56] Accordingly, having regard to the requirement that there needs to be some correlation between legal fees and the benefit actually achieved, costs will be fixed in a significant, but not prohibitive amount.

[57] The Court intends to make the costs award payable in periodic payments, only if the respondent remains in good standing with the terms of the order set out below.

5:0 ORDER

[58] The Court makes the following order:

1. The respondent father, Darryl Mungal, shall pay to the applicant mother, Naadira Mungal, the amount of $5,000.00, inclusive of disbursements and HST, payable at the rate of $300.00 per month, on the fifteenth day of each month, commencing April 15, 2013, until satisfied. Should the said respondent default on any of these payments, the full outstanding amount shall be due and payable immediately.

2. Any costs not paid by the said respondent shall be enforceable as child support.

Released: March 14, 2013

Justice S.R. Clark