Docherty v. Melo, 2016 ONSC 7579
COURT FILE NO.: FS-16-184-00
DATE: 2016-12-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FIONA DOCHERTY
Chaitali Desai, for the Applicant
Applicant
- and -
JOSEPH ADELINO MELO
David Costa for the Respondent
Respondent
HEARD: November 10, 2016,
at Brampton, Ontario
Price J.
Reasons For Order
NATURE OF MOTION
[1] Fiona Docherty and Joseph Melo separated in 2014, after a 17 year common law relationship. They spent at least six years of their relationship in a home acquired from Ms. Docherty’s mother in Alton, Ontario. Following their separation, Ms. Docherty remained at that property, while Mr. Melo went to Vancouver for a year.
[2] Mr. Melo returned, unannounced, in 2015, and an altercation ensued in which Ms. Docherty alleges that Mr. Melo threw a glass at her. Ms. Docherty obtained a temporary restraining order against Mr. Melo.
[3] Ms. Docherty now moves to continue the restraining order. She says she fears Mr. Melo, based on:
a) his past criminal activity, including a home invasion; and
b) His past domestic violence toward her, and the fact that, to his knowledge, Ms. Docherty has recently been informing the R.C.M.P. about his conduct, which that police force is currently investigating;
[4] Mr. Melo opposes Ms. Docherty’s motion. He characterizes it as a strategy calculated to maintain her occupation of the home they shared when they were together, the title of which is in his name alone. Mr. Melo attributes the present motion to the fact that he recently brought realtors to the property with a view to selling it, and he says that Ms. Docherty’s aggressive response to the realtors demonstrates that she is not fearful of him.
[5] The court must determine whether Ms. Docherty still meets the test for a restraining order pursuant to section 46 of the Family Law Act.
BACKGROUND FACTS
[6] Fiona Docherty is 47 years old (born March 7, 1969); Joseph Melo is 52 (born January 7, 1964). They began living together in 1997 and separated, after 17 years together, in 2014.
[7] Mr. Melo and Ms. Docherty have two sons together, Quentin Adelino Melo, who is 17 (born January 27, 1999), and Skye Denis Melo, who is 18 (born December 31, 1997).
[8] Ms. Docherty, who was self-represented at the time, commenced the present proceeding by an application that she caused to be issued on July 26, 2016, in which she claims spousal support, custody of the children and child support, and a restraining order. She makes no claims related to property.
[9] In her application, Ms. Docherty states:
I am seeking a restraining order due the fact that Joseph Melo has recently learnt that I have been informing the RCMP of his illegal activities that he is involved with and the fact they detained him at Pearson International Airport upon his return to Toronto in August 2015. Joseph Melo and his circle are able to access information as such through sources they are connected to.
[10] On the same day that Ms. Docherty caused her Application to be issued, she made an emergency motion without notice to Mr. Melo, for a restraining order pursuant to section 35 of the Children’s Law Reform Act and/or section 46 of the Family Law Act. The motion was heard the same day (July 26, 2016) by Justice Fragomeni, who adjourned the motion for two days to July 28, 20116, ordered that it be served immediately on Mr. Melo and further that, pending the return of the motion, Mr. Melo was restrained from contacting or communicating with Ms. Docherty or any child in her lawful custody, and from coming within 500 metres of Mr. Docherty’s residence.
[11] The parties’ 18 year old son, Skye Melo, served Ms. Docherty’s application (form 8A) on Mr. Melo on July 27, 2016, at 12:35 a.m., together with Ms. Docherty’s affidavit in support for her claim for custody (form 35.1), her financial statement (form 13.1), her Motion for a restraining order (form 14), her supporting affidavit (form 14A), and the temporary order of Justice Fragomeni, dated July 26, 2016 (form 25). This appears from Skye’s affidavit of service, also sworn and filed on July 27, 2016.
[12] In her affidavit sworn July 26, 2016, Ms. Docherty made the following assertions, which are, even to this day, undisputed by Mr. Melo:
a) When Ms. Docherty and Mr. Melo met, Mr. Melo owned and operated a restaurant in Toronto.
b) Ms. Docherty and Mr. Melo began cohabiting in April 1997. Ms. Docherty worked at the restaurant that Mr. Melo owned and operated until 2001, when his brother and a friend were murdered.
c) Mr. Melo suffers from post-traumatic stress disorder, side effects from previous drug use, including Cocaine, which he used from 1997 to 2001, and “sociopathic traits.”
d) Mr. Melo was charged with domestic assault against Ms. Docherty, for which he was granted a discharge after completing an anger management program.
e) The Children’s Aid Society was involved with the family a few times since 2001, when the homicides occurred. Mr. Melo was abusive toward them a few times, and Ms. Docherty was required to sign a waiver stating that she would not leave their children alone with their father.
f) Mr. Melo was heavily involved in boxing as a child and young adult. His brother became a professional boxer but Mr. Melo did not turn professional “due to his lack of discipline”. He “can be hot tempered” and he and his brother were “known to have hurt people with their hands.”
g) The parties separated in August 2014, when Mr. Melo disappeared. He returned in June to August 2015, when he informed Ms. Docherty that he would be staying at the property because “he was being followed and wanted to lay low.”
h) Joseph Melo had recently learned that Ms. Docherty had been informing the R.C.M.P. of his criminal activities.
[13] On July 28, 2016, both parties attended before me. Both were self-represented and consulted Duty Counsel. They indicated that they intended to retain counsel and required three weeks to do so and to prepare material. They agreed that, in the meantime, the restraining order made by Justice Fragomeni could continue, with the exception of the term prohibiting communication with the parties’ children, which they agreed could be terminated. Ms. Docherty’s motion was adjourned to August 18, 2016, on those terms, and the parties were granted leave to file additional evidence.
[14] On August 18, 2016, Ms. Docherty attended and was self-represented. Mr. Melo attended with his counsel, David Costa. On consent, Justice McSweeney further adjourned Ms. Docherty’s motion to October 20, 2016.
[15] On October 20, 2016, Justice Barnes accepted Mr. Melo’s affidavit dated October 18, 2016. In that affidavit, Mr. Melo asserted that he was a Canadian citizen, had resided in Canada for over fifty years, and has no criminal record. He states that the parties separated in 2014, and that Ms. Docherty is currently residing in the basement of a church structure at 19685 Main Street Alton, which is solely owned by Mr. Melo, and is not paying rent. He further states that Ms. Docherty has interfered with his renting the church structure, and has covered the hydro and gas payments when he could not afford to do so 14 months earlier. He states, “She is well aware that I am in the process of securing her removal, as she is not a tenant, and does not share title in this property.”
[16] Mr. Melo further states:
As for Ms. Docherty’s true motive, on or about March 16, 2016, I tried to show my premises to prospective commercial tenant, Gail Elizabeth Henderson (d.o.b. December 26, 1953)…. As well, on or about April 28, 2016, real estate agent Ida Puzzo (d.o.b. July 6, 1974) attended with her associate and I to view the property but, as per her attached Exhibit “C” affidavit, we were repeatedly interrupted by Ms. Docherty’s loud interference, both inside and outside the property.
[17] Mr. Melo filed an affidavit from Ms. Henderson, in which she states that she had hoped to rent the church structure for theatre, music, and other entertainment events, and that Ms. Docherty had posted on a social media page for “Fieldstone’s Coffee & Tea Lounge”, which she operates at the church structure, that the property was not for sale or rent and that “there was ongoing litigation connected to it.”
[18] Mr. Melo filed a further affidavit from Ida Puzzo, who states that she attended on April 28, 2016, at 19695 Main Street, which consists of a church a separate 2 bedroom dwelling, a courtyard and a small parking space, to view and assess its lease and sales potential. She was accompanied by her real estate agent associate. She was met by Mr. Melo who accompanied them to view the two structures. When they entered the main level of the church, which was remodeled to serve as a coffee and tea lounge area, Ms. Docherty said loudly that the three of them were illegally on the property and that Mr. Melo could not rent or sell the property because she was living there, and there was current litigation. She notes that Mr. Melo did not engage Ms. Docherty, and the three of them left the church structure, followed by Ms. Docherty, who continued to demand that they leave the premises.
[19] On October 20, 2016, Ms. Docherty required further time to reply to Mr. Melo’s affidavit. The motion was therefore further adjourned to November 10, 2016, peremptory to both parties. Ms. Docherty retained Ms. Desai, who delivered a Notice of change of representation on October 21, 2016.
[20] Ms. Docherty later filed a further affidavit dated November 7, 2016, in which she states, in part, the following:
a) On April 6, 2001, there was a double homicide of Mr. Melo’s older brother, Eddie Melo, and his long-time friend, Jaeo Paveo.
b) Mr. Melo admitted to Ms. Docherty that he had been using Cocaine for 2 ½ years.
c) In June 2001, Mr. Melo, after leaving the home for 3 days, called Ms. Docherty and yelled and swore at her. He then entered the donut shop where she was employed, grabbed her by the hair, pulled a pay phone she was using to speak to the Children’s Aid Society from her hand, and bit her cheek, leaving a mark and a bruise. The police attended and a few days later, arrested Mr. Melo, and charged him with assault.
d) In 2008, Mr. Melo and Ms. Docherty were in their car with their children when Mr. Melo was interrogated by police. He later explained to her that he had fraudulent gift cards with him.
e) On December 15, 2008, Mr. Melo was involved in a kidnapping and home invasion in North Vancouver, which Mr. Melo orchestrated with his associates, Peter Kutti and Wayne Shaw. Mr. Melo and his associates robbed a man of an extensive wine collection and art, and Mr. Kutti was later arrested for the crime and served time in prison. Later the same month, Ms. Docherty discovered an R.C.M.P. card in her father’s retirement building and upon contacting the officer, was informed that Mr. Melo had stored some of the stolen merchandise at her father’s residence.
f) In the summer of 2009, Mr. Melo took their youngest son to a restaurant for a meeting with Peter Kutti and another man and when they were leaving the restaurant, it was raided by police, who arrested one of men who had attended the meeting.
g) In the fall of 2009, Wayne Shaw attended at Ms. Docherty’s home and demanded to know where Mr. Melo was. He stated, “If [Mr. Melo] did not give him what he was owed, it will get ugly.” Ms. Docherty reported the visit to Mr. Melo, who told her to forget about it.
h) Mr. Melo and Ms. Docherty resided at 19695 Main Street Alton, which was purchased by Ms. Docherty’s mother in 1991. She and Ms. Docherty applied to the Town of Caledon for a minor variance, apparently to regularize its use. She adds, “later on, [Mr. Melo] purchased the home from my mother and place [sic] it solely under his name, this was on a promise that at a later stage my name will be added. I did not pay rent as we were living as a nucleus [sic] family for 18 years.
i) In September 2015, Mr. Melo attended at her home. He argued with ther son, Quentin, and when Quentin came to her for help and she asked Mr. Melo what the problem was, he became angry and threw a glass directly at her and their son, and said, “Careful when you’re in a dark place and alone.” She called the police, who attended at the home and removed Mr. Melo.
j) Ms. Docherty retained a lawyer in December 2015, for the purpose of applying for a restraining order, but the lawyer failed to take the necessary steps or offer any explanation as to why she had not done so.
k) In July 2016, Ms. Docherty was informed by their son, Quentin, that Mr. Melo knows that she informed the R.C.M.P. about Mr. Melo’s illegal activities.
l) Ms. Henderson and Ms. Puzzo, when they attended at the property and met Mr. Melo, arrived without any prior notice to Ms. Docherty, who informed them that the property was not for sale. Ms. Docherty denies yelling or screaming at them.
[21] On November 8, 2016, Mr. Melo filed the further affidavit of Fernando Ribeiro, who stated that he had loaned $260,000 to Mr. Melo in 2010, and taken as security a mortgage on the property at 19695 Main Street in Alton. He asserts that “Without the mortgage being honoured, due to Ms. Docherty’s unlawful physical possession of the church structure without providing any income, I will soon be forced to take title proceedings against Mr. Melo.” He further states, “[Ms. Docherty’s] behaviour has interrupted Mr. Melo’s expressed plan to renovate and rent out the industrial zoned church structure, and I would be paid out upon refinancing.” Mr. Ribeiro adds that Ms. Docherty made allegations years ago that he [Mr. Ribeiro] was prowling the property and thereby posing a threat to her. He states that he attended twice at the Orangeville courthouse, where he addressed the issues with the then Crown Attorney, who “had her allegations thrown out.”
[22] At the outset of the hearing on November 10, 2016, Ms. Docherty abandoned her claim for exclusive possession of the home, without prejudice to her right to assert it in the future, after amending her application to claim a constructive trust interest in the home. The court made it clear to the parties and their counsel, at that point, that if the parties were unable to reach agreement on the remainder of the motion, the hearing would proceed only on Ms. Docherty’s claim for a continuation of the restraining order against Mr. Melo, and that if she was successful in that claim, the court would not entertain an argument that success had been divided, on the ground that Mr. Melo had succeeded in respect of Ms. Docherty’s claim for exclusive possession of the property.
[23] The parties were unable to settle the claim regarding the restraining order, and the hearing proceeded.
ISSUES
[24] The court must determine whether Ms. Docherty has a reasonable fear of Mr. Melo that justifies continuing the temporary restraining order that Justice Fragomeni made on July 26, 2016, and that I amended, with the consent of both parties, on July 28, 2016.
PARTIES’ POSITIONS
[25] Ms. Docherty argues that she has a reasonable fear of Mr. Melo by reason of his past criminal conduct, including his domestic violence toward her, and his knowledge that she has recently been informing the R.C.M.P. about his criminal activities.
[26] Mr. Melo argues that Ms. Docherty is feigning fear of him for strategic purposes, in order to retain possession of the home they occupied when they were together, and that she has continued to occupy since their separation.
ANALYSIS AND EVIDENCE
The statutory framework
[27] Ms. Docherty initially moved for an order for exclusive possession of the home pursuant to s. 24 of the Family Law Act.[^1] That section provides, in part, as follows:
Order for possession of matrimonial home
- (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,
(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;
(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;
(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;
Temporary or interim order
(2) The court may, on motion, make a temporary or interim order under clause (1) (a), (b), (c), (d) or (e). R.S.O. 1990, c. F.3, s. 24 (2).
Order for exclusive possession: criteria
(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children. R.S.O. 1990, c. F.3, s. 24 (3); 2014, c. 7, Sched. 9, s. 4.
[28] As noted above, Ms. Docherty abandoned her motion for exclusive possession of the property. She moved to continue the court’s existing restraining order pursuant to s. 46 of the Family Law Act .
[29] Section 46 of the Family Law Act provides as follows:
- (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.
(2) A restraining order under subsection (1) may be made against,
(a) a spouse or former spouse of the applicant; or
(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.
(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:
Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
Any other provision that the court considers appropriate. [Emphasis added]
The test to be applied
[30] In order to grant a restraining order, then, the court must be satisfied that there are “reasonable grounds [for the applicant] to fear for her own safety or for the safety of [her child]”.
The jurisprudence
[31] In Callon v. Callon, in 1999, the Divisional Court considered a motion for leave to appeal an interim order pursuant to s. 46 of the Family Law Act restraining a party from communicating to third parties about the moving party. In brief reasons for judgment, the court stated that the “purpose of Section 46 as it relates to interim orders is to permit both litigants the opportunity to conduct their litigation in as reasoned an atmosphere as may be possible.”[^2]
[32] In Stave v. Chartrand, in 2004. Justice Pugsley, of the Ontario Court of Justice, considered a case in which the only issue was whether the respondent should continue to be bound by a restraining order. There had been no recent incidents of the kind that gave rise to the original restraining order. Justice Pugsley dismissed the request because of the lack of a temporal connection between the past actions and the applicant’s current fear. He stated:
Beyond an assessment of the events described by the parties looms also the passage of time. Events that once triggered a temporary restraining order may not now be so compelling on the issue of a permanent order. The events complained of by the applicant and pointed to in support of her request for the order occurred within a relatively short time span almost one year ago. No harassing events have taken place in the last eleven months.
The question for me today is not whether the events outlined above were seen subjectively by the applicant as threatening. Rather, I must look at those events objectively to determine whether they form the basis for a restraining order under section 46 of the Family Law Act and, if so, whether such an order is still required today. In analysing the evidence here, I must also be aware that the applicant has many protections available to her if I do not grant the order requested. Plainly put, all citizens of Canada are protected from harassment if such harassment is illegal under the Criminal Code, R.S.C. 1985, c. C-46 [as amended]. Further, the applicant has the protection of the Trespass to Property Act, R.S.O. 1990, c. T-21 [as amended], available to her. In other words, if the applicant has been unable to convince me to make the order requested, this does not lead to a conclusion that she lacks protection from future misdeeds by the respondent.
Further, in my view it is appropriate where the evidence led by the applicant is not fully compelling to consider the balancing prejudice to the respondent should the order be granted…. I find the effect upon the respondent if the order is continued to be significant.
Objectively assessing the events that I have set out above, I come to the conclusion that the temporary restraining order was well founded on the evidence. I have also concluded, however, that there is no continued need for a restraining order in the context of those facts. I make that finding on the basis of the fact that the events relied upon by the applicant are now events of a year ago. The passage of that year, and perhaps the cathartic effect of this trial, have served to reduce the level of conflict between the parties to the point where the applicant herself states that she believes there are no outstanding property issues between them….
Looking at the history of this matter objectively, I find no basis for continuing the restraining order. Plainly put, I do not believe that the respondent will molest, annoy or harass the applicant in the future and no order is necessary to prevent such harassment. The criminal law and provincial statutes such as the Trespass to Property Act, will not leave the applicant defenceless if my finding is proved to be too optimistic.[^3]
[33] Justice P.W. Dunn, of the Ontario Court of Justice, in the trial of an application for a restraining order in Khara v. McManus, in 2007, considered the test set out in s. 46. He stated:
When a court grants a restraining order in an applicant's favour, the respondent is restrained from molesting, harassing or annoying the applicant. It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. However, an applicant's fear of harassment must not be entirely subjective, comprehended only by the applicant. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears.
If a respondent has committed past acts or words of harassment, they must have some current relationship with an applicant’s present fears. It may not be enough if a respondent was violent to an applicant in the past and the applicant and respondent then had an ongoing subsequent relationship that was, if not harmonious, at least not conflicted. If such an applicant then links the past aggression with possible future aggression, a court will look closely at the intervening period between a respondent’s past harassment, and what an applicant perceives to be his or her present concern.[^4] [Emphasis added]
[34] In Azimi v. Mirzaei, in 2010, Mesbur J. stated:
…Horkins J made specific findings of fact that the applicant had physically and verbally abused the respondent, with psychological abuse being more frequent. It is telling that today, when the respondent raises the issues of her ongoing psychological fear of the applicant, the applicant simply suggests she should get counselling. [In this case] I accept that the respondent has reasonable grounds to fear for her own safety and the safety of the child who is in her custody. This fear extends to both their physical safety and psychological safety.[^5] [Emphasis added]
[35] In Fuda v. Fuda, in 2011, Justice McDermot stated:
It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears.[^6] [Emphasis added]
[36] In Smith v Waghorn, in 2012, Justice J. Kane, declined to grant a restraining order because there were no recent altercations and, thus, no current evidentiary basis to grant such an order. Justice Kane stated:
The parties have been separated two and one half years. The Respondent has remarried and is living hundreds of kilometres from Ottawa. There are no recent allegations of altercations between the parties. There is currently no evidentiary basis to grant such an order. Such orders should not be granted lightly. The numerous past allegations and orders on this subject will remain accessible should circumstances arise in the future.
The same reasons apply to the Respondent's request for a restraining order. No such order is being granted to either party.[^7]
[37] In McCall v. Res, in 2013, Justice Spence, of the Ontario Court of Justice, after reviewing the jurisprudence, granted the Applicant’s request for a s. 46 restraining order. He concluded:
What I take from these cases is:
• The fear must be reasonable
• The fear may be entirely subjective so long as it is legitimate
• The fear may be equally for psychological safety, as well as for physical safety[^8]
[38] In D.C. v. M.T.C., in 2015, Justice Starr, in the Ontario Court of Justice, after reviewing the jurisprudence, stated:
Based on the Court’s review of these cases and those referred to below, the Court should be guided by the following additional principles when deciding whether to grant a restraining order in borderline cases, that is, cases involving the passage of a significant period of time during which there have been no or no recent incidents of aggression or inappropriate behaviour:
(a) The court must have regard for the passage of time. Events that once triggered a temporary restraining order may not now be so compelling on the issue of a permanent order;
(b) When examining the link between some past act of aggression and some possible future aggression the court should look closely at the intervening period between the respondent’s past harassment and what the applicant perceives to be his or her present concern;
(c) If a respondent has committed past acts or words of harassment they must have some current relationship with the applicant’s present fears. There must be some link between the past aggression and possible future aggression;
(d) Some element of persistence in pursuing a course of intrusive, troubling and meddlesome behaviour over a period of time is required (see Purewal v. Prewal 2004 ONCJ 195, [2004] O.J. No.3891 (O.C.J.);
(e) It is not sufficient to argue that there would be no harm in granting the order (see Edwards v. Tronick-Wehring 2004 ONCJ 195, [2004] O.J. No.3891);
(f) In borderline cases the Court must consider whether a restraining order would be a resource to the applicant to protect her from the respondent;
(g) In borderline cases, the Court must consider what other protections may be available, if a restraining order is not granted; and
(h) It is appropriate where the evidence led by the applicant is not fully compelling to consider the balancing prejudice to the respondent should the order be granted.[^9]
[39] In Lawrence v. Bassett, in 2015, Kiteley J. stated:
I accept the evidence of the Applicant from which I infer that, based on the email communications described in her affidavit, she had reasonable grounds to fear that, if the order was not made, her psychological and emotional safety were at risk: his threats constituted a weapon to deter her from proceeding to court and jeopardized her right to seek recourse from the court. As indicated above, subjective fear is sufficient so long as it is legitimate. In this case, the fear raised is not entirely subjective but is corroborated by the content of emails. The restraining order is warranted to permit both litigants the opportunity to conduct their litigation in as reasoned an atmosphere as may be possible and to provide the litigants with some element of order in this difficult and acrimonious litigation.[^10]
[40] In the present case, Ms. Docherty has a legitimate fear of harm from Mr. Melo. Her subjective fears are related to the actual assault that Mr. Melo committed upon her in 2001 and, more recently, in 2015. Her concerns from the past were reasonably revived by the fact that Mr. Melo and his associate, Mr. Kutti, with whom she believes he committed a home invasion in 2008, have, since the fall of 2015, occupied a home on the same property where she resides.
[41] Ms. Docherty’s fear was reasonably aggravated by Mr. Melo’s knowledge that Ms. Docherty has recently provided information to the R.C.M.P. about his criminal activity and that of his associate.
[42] Mr. Melo is entitled to pursue his legal remedies to have Ms. Docherty removed from the property if she has no claim to a constructive trust interest in the property and no right to remain in possession. However, his attending at the property with realtors, without prior notice to her, in an effort to have the property sold or leased, exhibits a disregard of her reasonable expectation of privacy derived from the fact that she has occupied the property since 2006 or 2008, when it was purchased from her mother. In the light of Mr. Melo’s past assaults on Ms. Docherty, and threats to her, she reasonably regards his conduct as a form of intimidation designed to deter her from asserting her own claims to possession of the property.
[43] It is the undisputed evidence of Ms. Docherty that:
a) Mr. Melo used Cocaine from 1997 to 2001, and became deeply involved in criminal activity in 2001. Mr. Melo’s brother, Eddie Melo, and a friend of Mr. Melo’s, were murdered in April 2001.
b) In June 2001, Mr. Melo grabbed Ms. Docherty by the hair, pulled a pay phone from her hand, and bit her cheek, leaving a mark and a bruise. He was charged with assault and later received a discharge after attending an anger management program.
c) The Children’s Aid Society was involved with the family several times since 2001. Mr. Melo was abusive toward them, and Ms. Docherty signed a waiver stating that she would not leave the children alone with Mr. Melo.
d) On December 15, 2008, Mr. Melo was involved in a kidnapping and home invasion in North Vancouver, which Mr. Melo orchestrated with his associates, Peter Kutti and Wayne Shaw. Mr. Kutti later was charged for the offence and served time in prison for it.
e) In the late summer or early fall 2015, Mr. Melo became angry with Ms. Docherty and threw a glass directly at her, and said, “Careful when you’re in a dark places and alone.” Ms. Docherty called the police, who attended at the home and removed Mr. Melo from the premises.
f) In October 2015, Mr. Melo moved into a second building on the property and told Ms. Docherty that he was going to be “lying low” and in November, Mr. Kutti, with whom Mr. Melo had orchestrated a home invasion in Vancouver in 2008, and who had gone to prison for the offence, began residing at the property. Mr. Melo called the police and complained that Ms. Docherty was living at the property illegally, whereupon the police advised Ms. Docherty to take legal action.
g) In December 2015, Ms. Docherty retained a lawyer with a view to obtaining a restraining order, but the lawyer failed to take the necessary steps, and failed to offer Ms. Docherty any satisfactory explanation. That month, Mr. Melo would attend at the property unannounced and at random times. On one occasion, he changed the locks without informing Ms. Docherty.
[44] Mr. Melo’s assault on Ms. Docherty in June 2001, when he pulled her hair and bit her, is far in the past, and may have been the result, in part, of the stress that attended Mr. Melo’s brother’s violent death two months earlier. However, those past events must be seen in a new and more recent light, having regard to Mr. Melo’s home invasion with Mr. Kutti in 2008, his assault on Ms. Docherty in July 2015, when Mr. Melo threw a glass at her, and Mr. Melo’s renewed residence at the property in 2015 with his former associate, Mr. Kutti, and his efforts to remove Ms. Docherty from the property. For these reasons, the restraining order must be continued.
Costs
The discretion to be exercised
[45] The determination as to which party, if any, should compensate the other for his/her costs, and as to the amount of such costs, is “within the court’s discretion.”[^11] The court must exercise its discretion with due regard to the objectives of costs awards, and to Rule 24(11) of the Family Law Rules, which sets out the factors relevant to how the objectives are best attained in a particular case.
The outcome of the motion
[46] Consideration of the relative success of the parties on the issues in the motion is the starting point in determining costs.[^12] For the purposes of Rule 24(1), “success” is assessed by comparing the terms of an order against the relief originally requested, and against the terms of any offers to settle.[^13] Ms. Docherty was substantially successful in her motion, having secured a continuation of Justice Fragomeni’s restraining order, this being the only issue the court was called upon to determine.
Factors to be considered
[47] Rule 24(11) of the Family Law Rules lists the factors the court should consider when quantifying costs:
- (11) A person setting the amount of costs shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.[^14]
Importance, complexity, and difficulty
[48] The motion was of importance to the parties. It involved Ms. Docherty’s safety and freedom from psychological harm.
[49] The motion was of moderate complexity, owing to the factual history.
Reasonableness of each party’s behaviour – scale of costs
[50] Ms. Docherty seeks her costs on a partial indemnity scale.
[51] Substantial indemnity costs, like their predecessor, solicitor and client costs, are exceptional. Mark M. Orkin, in The Law of Costs,[^15] cites the Supreme Court of Canada in Young v. Young, in this regard: “Solicitor and client costs are generally awarded only where there has been reprehensible, scandalous, or outrageous conduct on the part of one of the parties.”
[52] In Empire Life Insurance Co. v. Krystal Holdings Inc., in 2009, Archibald J. stated: “Substantial indemnity costs are an exceptional award, saved for extenuating circumstances such as situations where there has been egregious conduct … or where a motion has been brought unreasonably”[16] The same principle can apply where a motion is unreasonably opposed, but the court must be careful not to characterize every lack of success in a motion as evidence of bad faith or unreasonable conduct to justify an award of costs on a higher scale.
[53] A finding of bad faith is not a condition precedent to full recovery of costs by the other side under the FLR.[^17] A finding that the motion should not have been brought, or should not have been opposed, is sufficient to attract costs on this higher scale. The determination of costs in the present case is governed by the FLR, not by the Rules of Civil Procedure.[^18] Under the FLR, the traditional assumption that there are only two levels of costs (“party-and-party”/“solicitor-and-client”; or “partial indemnity”/“substantial indemnity”), no longer applies. The court is simply required to consider the range between a nominal amount of costs and full recovery.[^19] In a family law case, the court need not find “special circumstances” before ordering costs on a substantial or full indemnity scale.[^20]
[54] Nevertheless, within the spectrum of motions for a restraining order, the present case does not justify an order for costs on a substantial or full indemnity scale, nor are costs on such a scale claimed. Neither party’s conduct was so unreasonable as to deprive Ms. Docherty of her costs, or so as to sanction Mr. Melo by requiring him to pay Ms. Docherty’s costs on a higher scale. For these reasons, Ms. Docherty will be awarded her costs on a partial indemnity scale.
Lawyer’s rates
[55] Ms. Docherty’s lawyer, Ms. Desai, was called to the Bar of Ontario in 2009. She had practiced law for 7 years when she argued this motion. In determining the appropriate hourly rate to be assigned to her, the court follows the approach taken by Aitkin J. in Geographic Resources.[^21] That is, the starting point is the successor of the Costs Grid, namely, the “Information for the Profession” bulletin from the Costs Sub-Committee of the Rules Committee (the “Costs Bulletin”), which can be found immediately before Rule 57 in the Carthy or Watson & McGowan editions of the Rules, sets out the maximum partial indemnity hourly rates for counsel of various levels of experience.
[56] The Costs Subcommittee’s rates apply to all lawyers and all cases, so everyone of the same level of experience starts at the same rate. The court adjusts the hourly rate, or the resulting fees, to reflect unique features of the case, including the complexity of the proceeding, the importance of the issues, and the other factors set out in Rule 57.01(1). If an excessive amount of time was spent, or too many lawyers worked on the file, the court reduces the resulting amount of fees accordingly.
[57] The Costs Bulletin suggests a maximum hourly rate (on a partial indemnity scale) of $225 for lawyers of under 10 years’ experience.[^22] The upper limits of hourly rates in the Costs Bulletin are generally intended for the most complex and important of cases.
[58] The Costs Bulletin, published in 2005, is now dated. Aitkin J. considered adjusting the Costs Subcommittee’s hourly rates for inflation, as Smith J. did in First Capital (Canholdings) Corp. v. North American Property Group,[23] but the unadjusted rates of the lawyers in her case were only slightly less than the actual fees they charged, so she elected to use their unadjusted rates. Normally, however, it is appropriate to adjust the hourly rates in the Costs Bulletin to account for inflation since 2005.
[59] Based on the Bank of Canada Inflation Calculator, available online at http://www.bankofcanada.ca/rates/related/inflation-calculator/, the 2016 equivalent of the maximum rate of $225 per hour is $270.^15 Having regard to Ms. Desai’s 7 years’ experience, and the moderate complexity of the motion, she was entitled to claim at least $260 per hour.
[60] Mr. Melo disputes Ms. Docherty’s right to claim her costs based on an hourly rate exceeding the Legal Aid rate, but has not offered any authority other than Achakzad v. Zemaryalai 2011 ONCJ 721, in support of that position. The fact that Ms. Docherty retained Ms. Desai on a Legal Aid certificate does not affect the rate which she is entitled to claim for the services Ms. Desai provided. The Legal Aid Services Act provides:
46(1) The costs awarded in any other order made in favour of an individual who has received legal aid services is recoverable in the same manner and to the same extent as though awarded to an individual who has not received legal aid services.[^24]
[61] In Nairn v. Lukowski, in 2002, the applicant received services on a Legal Aid Certificate, and the Family Court stated, “the fact that she was on Legal Aid does not limit costs recoverable to the amount payable to counsel pursuant to the Legal Aid rates…” In that case, the court awarded costs at an hourly rate of $200, an amount in excess of the Legal Aid rate. Justice Wein reviewed the jurisprudence and came to a similar conclusion in Ramcharitar v. Ramcharitar, in 2002. Justice Wein stated:
[T]here is no punitive aspect in such an award of costs; the party paying the costs simply pays the same amount as they would if the client were not legally aided. In fact, to hold otherwise would grant an inadvertent windfall to the party fortunate enough to only have to pay costs to an opposing party on Legal Aid, since the rate would be accordingly reduced.[^25]
[62] The court has taken a similar approach to fees charged under a pre-paid legal services agreement, such as the ones administered by C.A.W. and Unifor. I adopt the reasoning in those cases, and particularly the decision of this court in Friday v. Friday, in 2013, in which the court held that such agreements should not be construed as setting an upper limit on costs otherwise payable to a successful party.[^26]
[63] The Costs Bulletin entitles Ms. Docherty’s lawyer to claim a maximum hourly rate of $270 on a partial indemnity scale for Ms. Desai after adjusting her 2005 hourly rate for inflation. Ms. Docherty has claimed costs based on an hourly rate of $260 per hour, which I find to be reasonable.
Time properly spent on the case
[64] Rule 24(11)(d) of the FLR directs me to consider “the time properly spent on the case, including conversations between the lawyer and the party or witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order.”
[65] Ms. Desai spent 13.5 hours on the motion, including 1 hour to review the file documents, 1 hour to research the legal issues, 2 hours to draft Ms. Docherty’s reply affidavit, 1.5 hours to meet with the client to review the affidavit, 1 hour to prepare for the hearing, and 7 hours for the attendances in court. I find this time to be reasonable.
[66] Mr. Melo argues that Ms. Docherty has claimed excessive time but he has not delivered a Costs Outline or dockets setting out the time that his own counsel spent on the motion. Having regard to Mr. Melo’s multiple affidavits, his counsel is unlikely to have spent less time than Ms. Docherty’s counsel.
[67] This court has held, on several occasions, that when one party attacks another’s costs as excessive, but does not put its own dockets before the court, the attack “is no more than an attack in the air.” In Risorto v. State Farm Mutual Automobile Insurance Co., (2003), Winkler J., then a motion judge, stated:
The attack on the quantum of costs, insofar as the allegations of excess are concerned, in the present circumstances is no more than an attack in the air. I note that State Farm has not put the dockets of its counsel before the court in support of its submission. Although such information is not required under Rule 57 in its present form, and the rule enumerates certain factors which would have to be considered in exercising the discretion with respect to the fixing of costs in any event, it might still provide some useful context for the process if the court had before it the bills of all counsel when allegations of excess and “unwarranted over-lawyering” are made. In that regard, the court is also entitled to consider “any other matter relevant to the question of costs”. (See Rule 57.01(1)(i). In my view, the relative expenditures, at least in terms of time, by adversaries on opposite sides of a motion, while not conclusive as to the appropriate award of costs, is still, nonetheless, a relevant consideration where there is an allegation of excess in respect of a particular matter. [^27] [Emphasis added.]
Disbursements
[68] Ms. Docherty claims $60 for disbursements, consisting of photocopies and process serving. Mr. Melo does not take issue with the disbursements and I find them to be reasonable.
Other Relevant Matters
[69] I must “step back and examine the overall award with a view to determining whether it is ‘fair and reasonable’ for the kind of matter involved.” In determining what is fair and reasonable, I must take into account the reasonable expectation of the parties concerning the amount of costs.[^28]
[70] Motions for a restraining order alone are rare, as the relief is most often sought in combination with other substantive family law remedies. I have considered the following costs awards made in cases in which a restraining order was the only or principal issue:
(a) In Gaznabbi v. Khan, in 2007, Karswick J. awarded costs of $15,000 in a motion to continue a restraining order.[^29]
(b) In Fuda v. Fuda, in 2011, Justice McDermot awarded $12,000 on a motion for a restraining order.[^30]
[71] The costs ordered to be paid in such cases should have informed Mr. Melo’s reasonable expectation of the costs he might be required to pay if unsuccessful.
[72] Mr. Melo states that he is unable to bear the costs requested due to his financial circumstances, but has offered no evidence to support his position that he would face undue hardship if required to pay Ms. Docherty’s costs in the amount claimed.
[73] Mr. Melo argues that his client should not have expected to pay the amount claimed because Ms. Docherty retained her lawyer on a Legal Aid Certificate. It is the responsibility of counsel to advise their respective clients of the fees that the other party is entitled to claim pursuant to the Costs Bulletin, adjusted for inflation, of the jurisprudence referred to above, and of the potential consequences of an adverse result, before embarking on the course that will expose them to those consequences. I must assume that Mr. Melo received the appropriate advice from his counsel as to the risks he faced, and decided to proceed in spite of them.
[74] In all the circumstances, I find that the costs claimed by Ms. Docherty are proportionate to the interests at stake in her motion, and as to the amount Mr. Melo should have expected to pay if unsuccessful, based on the costs awarded for similar motions in other cases.
CONCLUSION AND ORDER
[75] For the above-mentioned reasons, it is ordered that:
The restraining order made by Justice Fragomeni dated July 26, 2016, as amended by me on July 28, 2016, shall continue.
Ms. Docherty’s claim for exclusive possession of the property is dismissed, without prejudice to her right to re-assert it, after amending her application to add a claim for a constructive trust or resulting trust interest in the property.
Mr. Melo shall, within 60 days, pay to Ms. Docherty her costs of the motion in the amount of $4,034.10, consisting of the following:
(a) Total fees: $3,510.00
(b) HST on fees: $456.30
(c) Taxable Disbursements: $60.00
(d) H.S.T.: $7.80
Price J.
Released: December 5, 2016
CITATION: Docherty v. Melo, 2016 ONSC 7579
COURT FILE NO.: FS-16-184-00
DATE: 2016-12-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FIONA DOCHERTY
Applicant
- and –
JOSEPH ADELINO MELO
Respondent
REASONS FOR ORDER
Price J.
Released: December 5, 2016
[^1]: Family Law Act, RSO 1990, c F.3
[^2]: Callon v. Callon, [1999] O.J. No. 3108 (Div.Ct.), at para.
[^3]: Stave v. Chartrand, [2004] O.J. No. 2538, paras. 20-27
[^4]: R.K.K. v. J.L.M., 2007 ONCJ 223, at para. 33 and 34
[^5]: Azimi v. Mirzaei 2010 CarswellOnt 4464 (Ont. S.C.), at paras 7 and 9
[^6]: In Fuda v. Fuda, 2011 ONSC 154, at para. 33
[^7]: Smith v Waghorn, 2012 CarswellOnt 3048, at paras. 120-121
[^8]: McCall v. Res, 2013 ONCJ 254, at para. 31
[^9]: D.C. v. M.T.C., 2015 ONCJ 242, at para. 69
[^10]: Lawrence v Bassett, 2015 ONSC 3707, para. 16
[11] Courts of Justice Act, s. 131.
[12] Butty v. Butty 2009 23111 (ON SC), [2009] O.J. No. 1887 (SCJ) at para. 4, citing Sims-Howarth v. Bilcliffe 2000 22584 (ON SC), [2000] O.J. No. 330 (SCJ)
[13] Johanns v. Fulford 2010 ONCJ 756, at para. 13
[14] Family Law Rules, O. Reg. 114/99 [as amended]
[15] M. M. Orkin, The Law of Costs, 2d ed., looseleaf (Aurora, Ont.: Canada Law Book, 1987), at p. 2-46 [Orkin]; Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at p. 154, re-stated in Perri.
[16] Empire Life Insurance Co. v. Krystal Holdings Inc, [2009] O.J. No. 1095 (S.C.), at para. 19.
[17] Osmar v. Osmar, 2000 20380 (ON SC), 2000 20380 (Ont. S.C.), at para. 11, Aston J
[18] Rules of Civil Procedure, R.R.O. 1990, Reg 194
[19] Osmar.
[20] Sordi v. Sordi, 2011 ONCA 665, 283 O.A.C. 287.
[21] Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041, paras. 7 and 11 to 16
[22] “Information for the Profession” bulletin (“the Costs Bulletin”) from the Costs Sub-Committee of the Rules Committee (that the Costs Sub-Committee of the Rules Committee issued to replace the Costs Grid, which it repealed in 2005). The Costs Bulletin has advisory status only and not statutory authority, as it was not included in the Regulation that repealed the Costs Grid.
[23] “Information for the Profession” bulletin (“the Costs Bulletin”) from the Costs Sub-Committee of the Rules Committee (that the Costs Sub-Committee of the Rules Committee issued to replace the Costs Grid, which it repealed in 2005). The Costs Bulletin has advisory status only and not statutory authority, as it was not included in the Regulation that repealed the Costs Grid.
[24] Legal Aid Services Act, 1998, SO 1998, c 26
[25] Ramcharitar v. Ramcharitar, 2002 ONSC 53246, at para. 25
[26] Ramcharitar v. Ramcharitar, 2002 ONSC 53246, at para. 25
[27] Risorto v. State Farm Mutual Automobile Insurance Co. (2003), 2003 43566 (ON SC), ONSC 43566, 64 O.R. (3d) 135, at para. 10 (S.C.), per Winkler J., cited in Springer v. Aird& Berlins LLP (2009), 2009 26608 (ON SC), 2009 ONSC 26608, 74 C.C.E.L.(3d) 243 (Ont. S.C.), at paras. 10-17.
[28] See: Boucher; Moon; Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638 (C.A.).
[29] Gaznabbi v. Khan, 2007 ONCJ 159, para. 44
[30] Fuda v. Fuda, 2011 ONSC 1452, para. 25