COURT FILE NO.: 239/14

DATE: 2014-06-11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: REGINA NAVARRO, Applicant

AND:

CLYDE FRANKLIN PARRISH JR., Respondent

BEFORE: Gray J.

COUNSEL:
Marc A. D’Heureux, Counsel for the Applicant
Steven Benmor, Counsel for the Respondent

COSTS ENDORSEMENT

[1] In my reasons for judgment, I invited the parties to file written submissions with respect to costs. Those submissions have now been filed.

[2] Counsel for the applicant, the successful party on the motion, requests costs on a full recovery basis in the amount of $7,854.18.

[3] Counsel for the respondent, the unsuccessful party, submits that there should be no order as to costs. In the alternative, he submits that costs should be in the cause. He submits that if any order for costs is made, it should be in the amount of $1,200.

[4] I will award costs to the applicant fixed in the amount of $7,854.18, as requested.

[5] Ordinarily, I would award costs on a partial indemnity basis on a motion of this nature. However, my costs order in this case has a punitive element, and deliberately so.

[6] Before the commencement of this motion, there was a series of emails exchanged between counsel. Two emails sent by counsel for the respondent are of particular concern.

[7] In an email dated April 28, 2014, counsel for the respondent stated:

As fellow counsel, I wish to caution you that if the evidence is that you counselled her to commence the Application contrary to ISO, or that you failed to alert her to the correct process, there could be cost consequences flowing to you. So I would suggest that she correct this error now as opposed to by motion. [Emphasis added]

[8] In an email dated April 30, 2014, counsel for the respondent stated:

Again, with respect, it is helpful to admit to an error and to rectify it, as opposed to allow ego to exacerbate the problem. ISO is the law for very good policy. Your client will not have a motion for support heard in May. She will pay you to defend your error. Then she will pay my legal bills for your error. Then she will have to pay your bill for no benefit whatsoever. That is why I referred you to Rule 24(9) that permits the judge to order you to not charge your client for this wasted expense and to pay my legal bills. Your refusal to admit to your mistake is reaching unfortunate heights. Please do everyone a favour and admit that you erred. Please simply withdraw the domestic Application and issue the ISO application, as required by Ontario law. I query whether your client has seen all these emails and your recent account for all these emails, letters and legal research – all stemming from your error. [Emphasis added]

[9] One of the factors I must take into account, pursuant to Rule 24(11)(b) of the Family Law Rules is “the reasonableness or unreasonableness of each party’s behaviour in the case.” In this case, the respondent, through his counsel, has behaved quite unreasonably, by suggesting that applicant’s counsel is at risk of costs and questioning whether applicant’s counsel has behaved professionally. Such allegations, in my view, do nothing more than raise the temperature and make it more difficult to engage in civilized settlement discussions.

[10] I think it is quite appropriate to modestly increase costs to mark the court’s disapproval of a party’s behaviour. As stated in Orkin, The Law of Costs, § 204, “Notwithstanding that costs are intended primarily as indemnification and not punishment courts have, in appropriate cases, imposed costs to reprove improper behaviour on the part of a litigant…”

[11] For the foregoing reasons, I award costs to the applicant fixed in the amount of $7,854.18, all-inclusive, payable forthwith.

Gray J.

Date: June 11, 2014