ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-13-76817-00
DATE: 2013-08-13
B E T W E E N:
K.K.
Amandeep Sidhu, for the Applicant
Applicant
- and -
M.K. a.k.a. M.M.
Michael G. Cochrane, for the Respondent
Respondent
Brampton, Ontario
Price J.
COSTS ENDORSEMENT
NATURE OF THE PROCEEDING
[1] On March 1, 2013, I granted Ms. K. custody of her two children, setting aside an earlier Order that her husband, Dr. K., had obtained on a motion without notice to her, by alleging that she suffered from bi-polar disorder, when she likely did not, and she had abducted the children, when, in fact, she had fled with them to a Women’s Shelter, and by omitting the fact that he had earlier applied unsuccessfully to the Ontario Court of Justice for custody of the children, and was now facing a criminal charge that he had assaulted his wife. My Order provided that if the parties were unable to agree on the costs of the motion, they could make written submissions. I have now reviewed the parties’ submissions and outlines and make the following disposition of the costs of the motion.
ANALYSIS
[1] Ms. K. requests costs in an extraordinarily high amount of $46,772.33. She includes in her Costs Outline both the time her counsel spent drafting the material for the motion, preparing, and arguing the motion on March 1 and 2, 2013, and the time she spent preparing for and attending at the Case Conference held on February 12, 2013. Ms. K. includes the time associated with the Case Conference, even though no Order was made for such costs at the Case Conference itself, on the ground that the Family Law Rules require that a Case Conference be held before a motion is served.
[2] Ms. K. relies on her success in the motion and on Dr. K.’s bad faith in misleading the court at an earlier motion that he brought without notice to her. She argues that because of his misrepresentations and their consequences, it was necessary for her counsel to expend an extraordinary amount of time and effort to disprove the allegations that Dr. K. had made against her and to displace the presumption that arose from the earlier Order he had obtained, removing the children from her care.
[3] Dr. K. argues that there should be no order as to costs as the principal issue was custody and the parties were motivated by their belief as to what was in the children’s best interests. Additionally, he asserts that his wife should be deprived of her costs because she falsely alleged that he assaulted her on November 10, 2012, which he has disproved, and because she has claimed costs that do not pertain to the motion and time that was not, in fact, spent.
[4] Dr. K. obtained an Order from Skarica J. on January 3, 2013, on a motion without notice to Ms. K., granting him temporary custody of the children based on his allegation that she was mentally unstable, suffering from bipolar disorder, and had abducted the children and was keeping them in a women’s shelter.
[5] On January 8, 2013, on the return of the motion after notice had been given to Ms. K., I declined to interfere with Justice Skarica’s Order, based on the fact that Dr. K., the applicant, was a medical doctor, whose assessment of his wife’s mental condition should be given weight in the absence of up-to-date medical information substantiating that, if she suffered from bi-polar disorder, that condition was being adequately managed and dis not present a risk of harm to the children.
[6] At the eventual hearing of the motion on March 1, 2013, more evidence was placed before the court which disclosed that Dr. K. had omitted material information and, indeed, had misrepresented evidence in order to obtain the ex parte Order from Skarica J. granting him temporary custody of the children and authorizing the police to apprehend the children from their mother at the women’s shelter where she had sought refuge from her husband’s abusive conduct toward her.
[7] In particular, Dr. K., in his affidavit in support of his claim for custody or access dated January 3, 2013, in response to the from statement: “I am or have been a party to the following court case(s) involving custody or access to any child” wrote “N/A” meaning “not applicable.” In giving this response, he omitted the information that he had previously applied unsuccessfully to the Ontario Court of Justice for custody of the children.
[8] More importantly, in answer to the statement “I am now charged with the following criminal offences,” Dr. K. also wrote “N/A”. In doing so, he omitted to disclose that he was then charged by the police with having committed a criminal assault on his wife on November 10, 2012. He had, in fact, signed a recognizance of bail on November 28, 2012, and was still, as of March 1, 2013, before the court on that charge.
[9] The criminal charge against Dr. K. was laid following a complaint by his wife 18 days later, on November 28, 2012. Dr. K. challenged the veracity of the charge against him, and still does, by producing an OHIP summary of a house call he says he made on November 10, 2012, and a statement from the son of the patient he says he attended at the time of the alleged assault. I concluded in my reasons on March 1, 2013, that while Dr. K.’s evidence cast doubt on the date of the incident which gave rise to the charge of assault, it did not discredit the allegation that the assault had occurred.
[10] The Kaverimanian’s eight year old daughter, V., was interviewed by the police on November 29, 2012. After demonstrating that she could distinguish between truth and falsehood, she gave the following testimony:
A. My dad always fights with my mom. He hit me and hits my mom and did this. My mom took me and my brother and went to the bathroom.
Q. All night?
A. No, when he went to sleep, we came out.
[11] When asked why her parents were fighting, she replied:
A. Dad calls my mom mental. I asked “Why do you call my mom mental?” and he hit me.
Q. How did he hit you?
A. He hit me in the arm, the shoulder.
Q. How hard?
A. Hard.
Q. Is he upset with your mom?
A. He said “Idiot stupid fuck.”
Q. When you arrive home is mom and dad home?
A. That day, mom was home.
Q. Ya.
A. Then dad came home.
Q. Ya.
A. We were trying to eat. When he came home, he fight.
Q. You mean calling name?
A. An names, stupid, idiot, and fuck. He hit me and my mom and brother.
Q. Then what happen?
A. He hit me.
Q. Why did he?
A. ‘Cause I supported my mom.
Q. Did he say anything?
A. Ya stupid fuck, bullshit.
Q. Did you run, cry?
A. I cried.
Q. Then what?
A. He put hand over the mouth of me, mom, and brother.
[12] I found that V.’s answers had the ring of truth and rejected Dr. K.’s explanation that they were the result of Ms. K.’s manipulation of her daughter, who was in her care at that time.
[13] Dr. K. offered no credible explanation for why he omitted the fact of the recent and still existing charge against him from the affidavit he swore. I rejected the explanation, offered by his counsel, that Dr. K. had thought that the question referred only to convictions. The previous form statement in the affidavit was “I have been found guilty of the following criminal offences for which I have not received a pardon.” I found that it was specious to suggest that he thought that the next question sought the same information.
[14] Dr. Robert Zalan, Ms. K.’s treating physician for the past two years, wrote in a clinical note on December 12, 2012: “The diagnosis of [Ms. K.] has been clouded in the past as the psychiatrist seems to have relied quite heavily on her husband’s observations.”
[15] In correspondence with AMHOP Insurance dated January 15, 2013, Dr. Zalan wrote:
In terms of the exact diagnosis of [Ms. K.’s] mental health issue in the past, she has been diagnosed with bipolar disorder. Again, this is clouded by some of the information given by the husband. At this point in time, I cannot rule out a bipolar disorder. However, since seeing the patient in November 2011, I have not seen any evidence of mood episode, either depression or mania. There is a high likelihood she does not have bipolar disorder.
[16] A report from Dr. Hagen Rampes, a psychiatrist at the Centre for Addiction and Mental Health, dated February 6, 2013, also stated:
My impression is that [Ms. K.] does not have bipolar disorder. She doesn’t give a history of any clear manic or hypomanic symptoms. It is likely with the chronic emotional abuse and violence that she had described in her marriage, that she could well have developed an adjustment disorder, depressive type, post-natal depression, or a depressive episode. It is possible that health professionals have relied excessively on her husband’s account, and been unduly influenced by the fact that he is a medical professional.
[17] Finally, in his report dated December 12, 2012, Dr. Zalan concluded: “I feel that [Mrs. K.] has the ability now and in the future to care for her children. I do not feel that there are significant symptoms of depression or mania at this point in time that would interfere with her ability to look after her kids.”
[18] I concluded, based on all the evidence, that it was in the children’s interests that they be returned to their mother and to be in her sole custody, with access by their father to be exercised at her discretion. I granted her exclusive possession of the matrimonial home. As it was not disputed that Dr. K. earned an income of $174,000.00 in 2011, the most recent year for which tax information was available, or that Ms. K. had no income, I ordered Dr. K. to pay his wife child support in the table amount of $2,291.00 per month and spousal support of $4,251.00 per month in accordance with the high end of the Spousal Support Advisory Guidelines. I further ordered Dr. K. to pay $50,000.00 to his wife within 60 days as an advance for her legal costs.
(continues exactly as in the source with full text preserved)
Price J.
DATE: August 13, 2013
Released: August 13, 2013