COURT FILE NO.: FC-14-1107

CITATION: Carvalho v. Carvalho, 2016 ONSC 1643

DATE: 20160307

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KRISTA LEE CARVALHO, Applicant

AND:

JOSEPH CARVALHO, Respondent

BEFORE: THE HON. MADAM JUSTICE M.E. VALLEE

COUNSEL: Ms. A. Pengelley, for the Applicant

Ms. D. Nikolova, for the Respondent

HEARD: February 25, 2016

COSTS ENDORSEMENT

[1] On January 20, 2016, the applicant mother served a motion on the respondent father. The parties settled the motion on January 26, 2016. The respondent father consented to all of the relief requested by the applicant mother except for costs. The applicant mother requests substantial recovery costs which the respondent father opposes. The circumstances are somewhat unusual. A review of the background of this matter is necessary.

[2] At the heart of this matter are the parties’ two little girls who are two and five. The respondent father has a history of drug abuse. The OCL was requested to investigate this matter. Justice Wildman made an order on January 7, 2015 that dealt with access, among other things. It stated that the respondent father would have supervised access at the Barrie Supervised Access Center. The respondent father was ordered to undergo a hair strand drug test and urine tests. Upon a negative result, the respondent father would have access supervised by his parents at their home. The respondent father was then to undergo weekly urine tests every Monday for three months and was to provide the results of those tests to the applicant mother each a week. If any of these test results were positive, the respondent father’s access was to be suspended until he underwent a random urine test, the result of which was negative. At this time, his access supervised by his parents would resume.

[3] The applicant mother became concerned because she thought that the respondent father had tampered with the results of a urine test prior to sending it to his counsel who in turn sent it to the applicant mother’s counsel. A staff member of the law firm for applicant mother, Ms. McTighe, called the testing lab on September 29, 2015 and spoke to a woman there. Ms. McTighe states in her affidavit dated October 13, 2015 that she introduced herself as being from the applicant mother’s law firm and she wanted to ensure that the test results received from the respondent father were the same as the results that the lab provided to the firm. She provided the information that she had regarding the test results to the woman at the lab. She stated in her affidavit that the woman from the lab provided her with some general information about the testing process. The woman from the lab confirmed that the results were negative and but also stated that there was a discrepancy in the reports. The lab’s copy contained some comments whereas Ms. McTighe’s copy did not. The woman from the lab directed Ms. McTighe to speak to the respondent father’s counsel about this as she was not at liberty to provide any details.

[4] The applicant mother’s counsel wrote a letter to the respondent father’s counsel dated October 1, 2015 to set out this concern and requested that the respondent father provide an authorization and direction for the lab to send the results directly to the applicant mother’s counsel. He refused.

[5] The OCL agreed to become involved on October 22, 2015. Two months later, the investigator for the OCL sent a letter dated December 23, 2015 to the respondent father’s counsel stating that she was asking, “for a final time,” that the respondent father provide an authorization so that she could access the results directly.

[6] The applicant mother served this motion on January 20, 2016 requesting the following orders:

(1) That the respondent father provide an authorization and direction to the lab to release the test results directly to the applicant mother’s counsel and to the OCL;

(2) That if he failed to co-operate, an adverse inference should be drawn relating to custody and access issues;

(3) That if he continued to fail to co-operate, his access should be supervised in accordance with paragraph 5 of the order dated August 31, 2015;

(4) That the respondent father not be permitted to bring any further motion until he was in compliance with paragraph 5 of the August 31, 2015 order;

(5) That the respondent father be sanctioned by payment of costs of $3,000 for non-compliance; and

(6) That the respondent father pay substantial recovery costs of the motion.

[7] The clinical investigator at the OCL wrote a letter to the court on January 25, 2016 stating that the report was due to be filed on February 4, 2016. She requested an extension to collect collateral reports and to provide disclosure. She stated, “Please note that Mr. Carvelho has not agreed to provide consent for direct access to Work Place Medical Corp, as is expected by the OCL protocol; As such, any recommendations made will not be able to account for that information.”

[8] The next day, the respondent father consented to the motion. He served and filed an affidavit dated January 27, 2016. He stated that he had consented to an order in accordance with numbers 1 – 4 in the applicant mother’s notice of motion. He refused to pay any costs.

[9] The applicant mother then served and filed an affidavit dated February 1, 2016 in which she stated that she was seeking costs of the motion because she was required to bring it in order to enforce two court orders. Those were the order of August 21, 2015 that the OCL be provided with the documents necessary to carry out her investigation and the order of August 31, 2015 that the respondent was to abstain from use of illegal drugs and to attend testing on Mondays after his access visits. She raised the alleged tampering issue. She stated that the respondent father had not always been attending for testing on Mondays. Rather, he had sometimes attended on Tuesdays, for example, October 14, 2015, October 27, 2015, December 22, 2015 and January 5, 2016. The point to the drug testing was to ensure that the respondent father was not under the influence of illegal drugs during his access visits. She was concerned that if testing was done on a Tuesday, it would not accomplish the purpose.

[10] The applicant mother stated that the respondent father refused to provide the authorization and direction after her counsel sent the October 1, 2015 letter. She had to bring the motion. It cost her significant legal fees. In the end, on January 26, 2016, almost 4 months after the initial request, the respondent father consented to provide the authorization and direction and consented to items 1 – 4 in the notice of motion.

[11] The respondent father filed an Exhibit Book. This contained a number of emails among the respondent father and various people at the lab, (including its Privacy and Security officer) regarding Ms. McTighe’s telephone call, how she had represented herself to the lab and the information that had been provided. None of these documents were exhibits to an affidavit. The applicant mother’s counsel strongly objected to these documents’ being put before the court for this reason. The respondent father’s counsel stated that her purpose was not to use them regarding the merits of the motion that had been settled. Rather, she intended to rely on them to show that there had been some bad faith on Ms. McTighe’s part because she committed a fraudulent act to obtain the respondent father’s records. The applicant mother was not entitled to them directly. Ms. McTighe filed an affidavit with a clear intention to deceive the court. This is unreasonable, bad conduct which disentitles the applicant mother to costs according to Rule 24(4). The respondent father’s counsel stated that affidavit evidence is not required for costs submissions.

[12] The documents in the Exhibit Book are conflicting. After the telephone call, the RF sent a number of emails to Lifelabs and Workplace Medical Corp. to inquire as to what had occurred. Apparently, Ms. McTighe spoke to a woman named Peggy Harrision who was an administrator for WMC. The procedure was that Lifelabs would collect the specimen and analyse it. Lifelabs would then send the lab report to WMC, a subcontractor for Lifelabs, for review and confirmation by a medical review officer. Then, WMC would interpret the result and send it to the individual that provided the sample.

[13] Ms. Harrison stated in an email to the RF on October 1, 2015 that she did receive a telephone call “from a lawyer’s office claiming on your behalf.” She stated that she did not release any results. Then, in an email to RF’s counsel dated October 14, 2015, she stated,

The lady said this is (name can’t recall). I am calling from (lawyer’s office can’t recall). This is in regards to Mr. Joseph Carvalho’s drug results…I was under the impression I was speaking to Mr. Carvalho’s lawyer because she had all the information. (results, specimen ID, dates etc)…The lady at this point did say she was working on behalf of the ex-wife.”

[14] WMC staff referred the matter up to its Privacy and Security Officer who looked into the matter. He sent an email to the RF on February 3, 2016 stating,

She [Peggy Harrison] can confirm that a person from a lawyer’s office [called] claiming she was acting on your behalf…The person was in possession of your drug results…The person then said she was acting on behalf of Joe’s ex-wife and requested further details of the results and Peggy did not provide any results to this person.”

[15] Ms. Harrison provided two different versions of what occurred when Ms. McTighe called. In the October 1, 2015 email, she did not mention that Ms. McTighe had stated that she was calling on behalf of the applicant mother. Based on these documents, I conclude that Ms. Harrison was likely confused when Ms. McTighe called. She stated she assumed that she was speaking to someone who was calling for the respondent father because Ms. McTighe had test results. Two weeks later, she stated that someone called from “(lawyer’s office can’t recall)” but she “did say she was working on behalf of the ex-wife.” Then, she told the Privacy and Security Officer that the caller said she was from the mother’s lawyer’s office.

[16] As a result of the conflicting information, I cannot come to any conclusion that Ms. McTighe conducted herself in a fraudulent manner to obtain information to which the applicant mother was not entitled.

[17] The respondent father relies on Witherspoon v. Witherspoon [2015] ONSC 6378. In this case, the parties settled on the eve of trial. With respect to costs, the court stated that, “the attempt to argue costs entitlement and quantification through application of the normally applicable cost recovery rules, after the parties have reached a formal settlement of the substantive issues between them, without trial, is fundamentally misconceived and inappropriate.” (see par 42) The court also stated, “where parties make a settlement as between themselves, the court…should be very slow to make an award of costs against one of the parties, and unless there are compelling reasons to do so, costs in the circumstances of a settlement between the parties ought not to be awarded by the court.” (see par 44)

Analysis

[18] This matter can easily be distinguished from Witherspoon. The parties did not reach a formal settlement of substantive issues. The applicant mother is requesting her costs of preparing a motion for relief, specifically regarding drug testing, to which the respondent father ultimately consented, together with her costs regarding the motion for costs. The consent was not a compromise. The respondent father consented to all of the relief that the applicant mother requested except for costs.

[19] In Davis v. Davis, [2004] O.J. No 2256, the court considered a matter in which there was a consent order that represented a compromise of positions by both parties. Accordingly, the court noted that the concept of divided success was more appropriate than the winner/loser approach and concluded that the husband should be responsible, despite divided success in the form of a settlement, for a portion of the wife’s costs. (see paras 3 and 7)

[20] In Johans v. Fulford, [2011] O.J. No. 4071, at par 8, the court noted that, “In Davis, the observation that success is “divided” when a case is settled does not imply that the parties are equally successful.”

[21] In Ford v. Hoffmann Laroche Ltd., 2005 46753 (ON SCDC), [2005] O.J. No. 5427, the court considered the impact of an allegation that counsel was guilty of fraud and deceit. One party took the position that his former counsel had consented to an order on his behalf based on fraud and deceit and therefore the order should be set aside. The court found that the party was not deceived by his former counsel. In par 37, it stated, “Where allegations of fraud are made, and declared to be totally unfounded, the matter falls within those rare cases where costs on a substantial indemnity basis may be awarded.”

[22] In this matter, the fact that the respondent father consented to the applicant mother’s motion on the day after the OCL wrote a letter to the court about the issue is likely not a coincidence. The respondent father stated that this was not a factor. Rather, he consented because one of his urine tests was positive. This related to a sample collected on January 18, 2016. Sadly, the applicant mother’s concerns about the respondent father’s drug use and the importance of testing were justified. Justice Wildman’s order required the respondent father to provide the test results to the applicant mother. I understand that he was providing them to his counsel who in turn provided them to the applicant mother’s counsel. It is hard to understand why the respondent father would not agree to have the lab send the results directly to counsel for the applicant mother as well as to himself. The end result would have been the same. Two steps would have been eliminated from the process.

[23] The issues in this motion were very important. The children should not have access visits with their father when he is under the influence of illegal drugs. The applicant mother behaved reasonably in bringing the motion. The applicant mother’s counsel spent an appropriate amount of time on the motion. She spent more time on the costs issue than what might have been necessary; however, this is understandable in light of the allegations made against her personally and her firm.

[24] Although the matter settled, the father’s consent was not a compromise. In submissions, the respondent father accused the applicant mother’s counsel of bad faith, committing a fraudulent act to obtain the respondent father’s records and filing an affidavit with a clear intention to deceive the court. These are very serious allegations, especially when made against opposing counsel. Her integrity was called into question. A party that makes these types of allegations without clear and compelling evidence to substantiate them should expect that serious consequences will be imposed,

[25] I conclude that the facts in these unusual circumstances, entitle the applicant mother to substantial recovery costs of her motion including the additional fees for the costs motion. The amount requested for fees is $13,010.00 in total. Interestingly, this is comprised of approximately $4,278 for work to prepare the motion and approximately $8,732 for work related to the motion for costs. The applicant mother’s counsel prepared a factum and a book of authorities relating to costs. She was required to review the respondent father’s factum, book of authorities and the Exhibit Book which contained six emails regarding the lab issue, among other things. The applicant mother’s counsel then prepared a supplementary factum and book of authorities which included cases to address the allegations of fraud. All of this could have been avoided if the respondent father had agreed to pay $2,800 in costs as requested by the applicant mother in her offer to settle the motion in a letter dated January 24, 2016.

[26] For the reasons set out above, the respondent father shall pay to the applicant mother costs in the amount of $11,761.04 comprised of $10,408 plus tax of $1,353.04 within 30 days.

VALLEE J.

Date: March 7, 2016