CITATION: Chapman v. Bungaro, 2021 ONSC 375
DIVISIONAL COURT FILE NO.: 1207-19 DATE: 20210118
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Kathleen M. Chapman
Respondent/Appellant
– and –
Lawrence E. Bungaro
Moving Party/Respondent
Michael H. Tweyman, for the Moving Party/Respondent
No one appearing for the Respondent/Appellant
HEARD at Toronto by videoconference: Wednesday January 13 and Friday January 15, 2021
L. A. Pattillo J.
[1] This is a motion by the Respondent Lawrence Bungaro for an order dismissing the Appellant Kathleen Chapman’s appeal from the order of Douglas J. dated November 19, 2019.
[2] On the return of the motion at 10 am on January 13, 2021, although the court waited for 45 minutes and the Registrar sent a further reminder email to Ms. Chapman with the video/teleconference links, she failed to appear, although properly served with notice of the hearing date.
[3] The hearing date was scheduled at a case management conference before Favreau J. on November 5, 2020 at which Ms. Chapman also failed to appear. A schedule was set for delivering motion materials electronically and for establishing a drop box for the uploading of the motion materials. The endorsement setting out the requirements specifically provided in bold that if Ms. Chapman was unable to comply with the schedule, she was to advise the court in writing on or before December 9, 2020, explaining why she did not attend the case conference and could not comply with the schedule.
[4] On December 30, 2020, Ms. Chapman sent an email to the court stating that, due to “associated financial and emotional hardships”, she was abandoning her appeal. In response, the court advised her that she should file a Notice of Abandonment with the court to close the file. Needless to say, Ms. Chapman has not filed a Notice of Abandonment.
[5] On January 7, 2021, the court sent an email to Ms. Chapman stating that the motion remained on the docket as no Notice of Abandonment had been filed. On the same date, Mr. Bungaro’s counsel sent an email to the court, copying Ms. Chapman, advising that costs would be sought for both the motion and the appeal. Ms. Chapman responded, disputing Mr. Bungaro’s right to costs.
[6] Based on the above correspondence from Ms. Chapman and her failure to appear on the motion, I dismissed her appeal as abandoned. I add, based on the motion material, had she not abandoned the appeal, I would have also dismissed it for delay.
[7] The order of Douglas J. deals with custody and access to the parties’ child. It is well reasoned and in the child’s best interests. The Notice of Appeal was filed December 16, 2019. Notwithstanding the direction of Leibovich J. on March 6, 2020 that Ms. Chapman was required to order the transcripts, she has not done so. Nor has she responded to communications from Mr. Bungaro’s counsel about the appeal. The delay is problematic given that a stable parenting situation has resulted from Justice Douglas’ order.
[8] At the hearing before me, Mr. Bungaro sought costs of the motion and appeal but had not filed a Costs Outline. Given Ms. Chapman’s objection to costs, I adjourned the motion to today at 9:30 am to permit Mr. Bungaro to serve and file his Costs Outline. I also directed the Registrar to send the parties an email with the links to attend the adjourned motion by videoconference or telephone on January 15, 2021 at 9:30 am. The Registrar sent that email on January 13, 2021.
[9] Mr. Bungaro served Ms. Chapman with his Costs Outline on January 14, 2021 and filed it with the court.
[10] At the return of the motion today, notwithstanding I waited 15 minutes past the 9:30 am start, Ms. Chapman again failed to appear.
[11] The Costs Outline claims partial indemnity fees, including HST of $1,466.87 and disbursements of $190.60 for total costs of $1,657.56 in respect of both the motion and the appeal. Both the time spent, and the hourly rate are reasonable given the issues and appearances. I am satisfied that the costs claimed for both the motion and the appeal are fair and reasonable.
[12] In conclusion, Ms. Chapman’s appeal is dismissed. Costs of both the motion and the appeal fixed at $1,657.56, payable by Ms. Chapman to Mr. Bungaro forthwith.
L. A. Pattillo J.
Released: January 18, 2021
CITATION: Chapman v. Bungaro, 2021 ONSC 375
DIVISIONAL COURT FILE NO.: 1207-19 DATE: 20210118
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Kathleen M. Chapman
Respondent/Appellant
– and –
Lawrence E. Bungaro
Moving Party/Respondent
REASONS FOR JUDGMENT
PATTILLO J.
Released: January 18, 2021