Court File and Parties

Court File No.: FS-12-375799
Date: 20130403
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nancy Lowe, Applicant

AND:

Russell Robert Minor, Respondent

BEFORE: Czutrin J.

COUNSEL:
Alexandra Abramian, for the Applicant

Harold Niman and Erin Chaiton-Murray, for the Respondent (not counsel on the motion but made submissions in writing on costs)

HEARD: Written Submissions

Endorsement

[1] This endorsement deals with the issue of costs arising out of a motion heard by me on December 21, 2012.

[2] The Applicant/wife seeks full recovery of costs in the amount of $7,412.80, inclusive of HST. In the event that bad faith is not found, the Applicant is seeking costs on a partial indemnity basis in the amount of $5,500, inclusive of HST.

[3] The Respondent/husband, with new counsel making costs submissions takes the position that there should be no costs and if costs are to be ordered it should be on a partial indemnity basis.

[4] The motion on December 21, 2012, came before me as an urgent matter by the wife seeking exclusive possession of the matrimonial home. Initially, I reserved on the disposition of the motion until December 24, 2012 at 12 PM but ordered that, pending my ruling, the wife would have exclusive possession of the matrimonial home.

[5] On December 24, 2012, I released my ruling and ordered that the wife was to have exclusive possession of the home until further order and that the husband was not to attend on the same street block where the matrimonial home was located.

[6] It is the wife’s position that she was completely successful on her motion and, therefore, she is entitled to costs.

[7] The wife concedes that no Offers to Settle were filed.

[8] Relying on rule 24 (1) (8) of the Family Law Rules, the mother submits that the husband had acted in bad faith, and if I so find, I am obliged to decide costs on a full recovery basis, and to order the husband to pay them immediately.

[9] In support of wife’s submissions, she reviews my reasons of December 24, 2012 and the history of the case in general.

[10] On September 14, 2012, the husband/father was arrested and charged with assault with respect to the wife/mother, and was removed from the matrimonial home. Charges were also brought against the mother on September 18, 2012.

[11] The father’s criminal trial took place in December 19, 2012, and he was acquitted.

[12] As a result of the September 18, 2012 charges, the mother was subject to terms of an undertaking that required her not to communicate directly or indirectly with the father, and not to be within 200 metres of where the father works, lives or happens to be.

[13] Immediately after his acquittal, the father had his family law lawyer advise the mother that he would be returning to reside at the matrimonial home that evening knowing that the mother was subject to restrictions in her criminal case undertaking.

[14] On December 19, 2012, the father came to the matrimonial home in an attempt to return to reside in the home. As a result of discussions with the police, the mother decided to leave the home to avoid any breaches of her undertaking.

[15] On December 20, 2012, father’s criminal counsel sent a letter to the Toronto Police Service and to mother’s counsel’s office to advise that the father was intending to return to the home that day and that the mother was required to pack up and leave the home.

[16] The mother and the children left the home and stayed in a hotel.

[17] Relying on those events, the mother submits that these actions by the father constituted bad faith.

[18] In my endorsement of December 24, 2012, I concluded:

(a) The father showed poor judgment returning to the home given the toxicity in the home and given the comments made by the judge who heard the father’s criminal charges and earlier comments by Justice Greer.

(b) The father should have known that his attendance at the home would potentially cause the mother to be in breach of her undertaking.

(c) The father conceded the children would not stay with him and, therefore, in returning to the home the father was willing to have the mother and children removed.

(d) The father’s actions led me to conclude the father was not putting the children’s interests first.

(e) And lastly, I found that it was more appropriate for the father to consider returning to court to seek any relief, particularly in light of the fact that he had served a motion for exclusive possession prior to his acquittal.

[19] In replying to the costs submissions of the mother, the father asked me to draw conclusions as to his motivation different from my findings made when I gave the mother exclusive possession of the home. He now suggests that the difficulty arose from the mother’s failure to consent to any access terms that would have satisfied his bail conditions.

[20] He suggested that following his acquittal what he attempted to do was to return to the home, spend time with the children over Christmas, and that he had no intention of causing a disturbance but simply hoped that the conflict in the family might be alleviated during the Christmas season and that he could reconnect with his children.

[21] He submits that he returned to the home and discovered that the locks had been changed without an exclusive possession order. He submits that when the mother called the police, he left the home without entering it and found alternative accommodation.

[22] The father submits that he did not have time for proper review and respond to the mother’s material that was served on him on very short notice.

[23] In reply submissions, the mother provides contrary information concerning the access issues; she explains how the parties had agreed to the use of a psychologist to arrange access between the father and children, but that the father took no steps to follow through.

[24] My disposition of this motion speaks to the bad faith of the father and his efforts to now explain away his actions add little to support his position of no bad faith. I am satisfied that there was bad faith, and as I have indicated, incredibly poor judgment on his part to advance the position that he did and to create an urgent scenario requiring the court’s intervention.

[25] Therefore, costs as requested on a full indemnity basis in the amount of $7,412.80, inclusive of HST are to be paid by the father to the Applicant forthwith.

Czutrin J.

Released: April 3, 2013