D’Angelo and Barrett, 2015 ONSC 726
COURT FILE NO.: FS-11-3489-00
DATE: 2015 01 30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Donatella D’Angelo and Christopher Wayne Barrett
BEFORE: TZIMAS, J.
COUNSEL: Faryal Rashid, for the Applicant
Julian Lipkowski, for the Respondent
ENDORSEMENT
[1] This Endorsement concerns two issues:
a) Total Arrears correction; and
b) Costs
a) Total Arrears
Counsel for both parties have agreed that the evidence before the court about support arrears was incorrect. Instead of an FRO credit of $1,223.00 counsel, through correspondence, agree that as a result of obtaining an FRO printout (after the court’s judgment), the support credit in favour of Mr. Barrett to be recognized by this court ought to be $15,550.00. In light of counsels’ agreement I order that the following amendments be made to my judgment of November 5, 2014 as follows:
Paragraph 67 is to be amended to note that the “Credits (as of February 28, 2014)” = $15,550.00
By reason of this amendment, the “TOTAL ARREARS to the period ending November 30, 2014” = $15,425.50.
Paragraph 88 is also to be amended to note that child support in the amount of $817.00 per month is as of December 1, 2014.
b) Costs
The Applicant seeks her costs on a full indemnity basis to be fixed at $45,838.69. Counsel for the Applicant submits that the Respondent was wholly unreasonable throughout the proceedings, beginning with his unilateral removal of the children. His behaviour and conduct of the litigation remained unreasonable. Counsel for the Applicant also highlights the Respondent’s non-compliant behaviour with respect to four interim court orders, the Respondent’s lack of preparedness and the Applicant’s and the shortfalls in the Respondent’s respective offers. In contrast to the Respondent’s offers, counsel submits that the Applicant’s offer was consistent, if not better than what the court ordered. This is also true of an oral offer that followed a pre-trial conference in this matter.
The Respondent opposes the Applicant’s submissions and asks for an order that each party bear its own costs. Counsel for the Respondent advances three primary reasons for such a ruling. He says that both parents were deeply committed to the trial, they love their daughters deeply, and they considered going to trial to be best for their daughters. Counsel suggests that in light of that commitment it would be unfair to burden the parties with a large costs award. Counsel also submits that two-thirds of the trial time was spent on the Applicant’s case while only one-third of the trial time was spent on the Respondent’s case. Counsel also suggests that the Applicant deployed a particular strategy with respect to the s. 112 OCL report that was improper and that led to her success at trial. Counsel for the Respondent says nothing about the Applicant’s offer to settle, other than with respect to the arithmetical errors and reconciliation as to who would owe what at the end of the day. Nor does he take issue with anything in Ms. Rashid’s Bill of Costs and the reasonableness of the quantum claimed.
Having regard to the outcome of the trial, Rule 24 of the Family Law Rules, the submissions of counsel, the length of the trial and the respective offers to settle I find that the Applicant is entitled to costs. I rely on the findings in my judgment regarding Mr. Barrett’s conduct to underscore the cost implications of his unreasonable conduct throughout this Application, his failure to comply with interim court orders and his limited preparedness for trial. Mr. Barrett’s “deep commitment” to trial was not, as his counsel would like this court to believe, informed by his “deep love” for his daughters. Rather, Mr. Barrett’s anger and animosity towards Ms. D’Angelo overshadowed his consideration of what would be in his daughters’ best interests in favour of protracted litigation and unreasonable conduct that began with the unlawful removal of the children from the matrimonial home in the late summer of 2011.
In the same vein, the contentions that Mr. Barrett was self-represented for some time, and that as a result he was not well prepared and did not appreciate, for example, the need for an updated s. 112 OCL report is no explanation. Every litigant is entitled, if he or she wishes, to represent him or herself in a court proceeding. That cannot, however, be used as an excuse for the failure to comply with interim orders, the failure to complete undertakings, the failure to prepare adequately, and the failure to select an appropriate litigation strategy. These were difficulties that Mr. Barrett encountered and which resulted in a longer trial than what was originally contemplated and that ought to have been required.
I also cannot accept counsel’s characterization of the case in terms of two-thirds time taken up by the Applicant’s case and one-third time taken up by the Respondent. Although there were three issues for the court’s determination, the overriding focus of the trial was on the subject of custody and access and more particularly whether Ms. D’Angelo was a fit parent. The allegations were very dramatic and had to be canvassed as thoroughly as possible. It is highly doubtful that there would have been any trial had this issue been resolved. Alternatively, the trial would have been much shorter.
In any event, with custody as the primary focus of this trial, Ms. D’Angelo was successful. On that issue, this was consistent with her offers. Insofar as child support and equalization are concerned, the mathematical analysis and reconciliation of the figures proposed by Ms. D’Angelo would suggest that Mr. Barrett would have likely been better off accepting Ms. D’Angelo’s offer. Although the equalization payment offered by Ms. D’Angelo was less than what the court awarded, the proposed child support payments were lower than what the court awarded. In the long-term the interplay between the two payments would either cancel out the difference between the outcome in court and the offers, or it would place Mr. Barrett in a slightly better position than the outcome in court. However the analysis is approached, it cannot be said that Mr. Barrett was successful on equalization because his claim far exceeded the court’s decision on this matter.
Given counsel’s extensive submission concerning Ms. D’Angelo’s litigation strategy and the implication that her success was the result of an improper approach, I am obliged to address this contention. To begin with, there was nothing improper in Ms. D’Angelo’s strategy as it related to the way she chose to respond to the s. 112 OCL report. That report, which was found to be problematic, was dated November 2012. Ms. D’Angelo was under no obligation to request an updated assessment from the same author. Nor did she stand in the way of Mr. Barrett’s request for such an update. What Ms. D’Angelo did do was put evidence before the court from three witnesses who addressed her abilities as a parent. Those witnesses withstood cross-examination by the Respondent’s counsel and the court’s findings included the consideration of that evidence.
What the s. 112 assessor might or might not have said in an updated report is highly speculative and unhelpful to the assessment of costs. More significantly, this frontal attack on Ms. D’Angelo’s litigation strategy and the corresponding criticism that she won because of her strategy is reminiscent of the Respondent’s propensity to blame everyone but himself for the outcome. For somebody with Mr. Barrett’s intelligence and acuity it stretches one’s imagination to accept the contention that he did not appreciate the significance of seeking an updated s. 112 report, especially since Mr. Barrett also was aware that Ms. D’Angelo took a number of steps to deal with the findings in the report. The more likely explanation is that Mr. Barrett did not want to take the risk of an update that would have to address in one way or another the period intervening between the original report and its update.
Finally, even with the Respondent’s silence on Ms. Rashid’s Bill of Costs, I am obliged to review counsel’s rates and the time spent on this file. I note that there is some duplication of time relating to trial preparation in the days leading up to the trial but then I also note that there was significant time that was discounted during the trial. The total hours of 121.10 for a ten-day trial is reasonable given the complexity of the issues and the additional time counsel had to spend as a result of deficiencies on Mr. Barrett’s part. The disbursements are those incurred in the usual course of litigation.
In light of the above, costs in favour of Ms. D’Angelo are fixed at $45,838.69, inclusive of disbursements and all applicable taxes. Insofar as the payment of the costs award is concerned, it is appropriate that Ms. D’Angelo’s equalization payment owing to Mr. Barrett be off-set against the costs award. In addition, it is appropriate that the balance owing on costs be characterized as an incident of support and enforceable as a support obligation.
Tzimas J
DATE: January 30, 2015
CITATION: D’Angelo and Barrett, 2015 ONSC 726
COURT FILE NO.: FS-11-3489-00
DATE: 2015 01 30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Donatella D’Angelo and Christopher Wayne Barrett
COUNSEL: Faryal Rashid, for the Applicant
Julian Lipkowski, for the Respondent
ENDORSEMENT
TZIMAS J.
DATE: January 30, 2015