Court File and Parties

COURT FILE NO.: FS-19-0095354 DATE: 20200529

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Raquelle Emilia Mascarenhas, Applicant AND: Shaun Budhai, Respondent

BEFORE: The Honourable Justice Van Melle

COUNSEL: Irina Davis, for the Applicant Vic Sehdev, for the Respondent

ENDORSEMENT ON COSTS

[1] On May 13, 2020 I released a decision in this matter in which I dismissed the applicant father’s motion. Regarding costs, I said that I would entertain written submissions limited to 2 pages double-spaced along with a Costs Outline and any applicable Offers to Settle.

[2] Although the parties spaced the paragraphs in their submissions, neither complied with my direction that the submissions were to be double-spaced. As well, documents other than applicable Offers to Settle were attached. Why? My instructions were simple and were to be followed.

[3] A failure to follow court direction came up as well in respect to the motion itself. Justice Price, at the case conference, ordered to parties to file Summaries of Argument in support of any motions. The father filed a factum while the mother filed neither a factum nor a summary of argument. Why? If this is a trend (and I have seen it a number of times recently) it is troubling. Parties and counsel are to follow the order and directions of a judge. If they are unable to do so, they must ask for the judge’s permission in advance and explain their inability to adhere to the judge’s order or instructions.

[4] The mother was completely successful on the motion. I dismissed the father’s on the basis that it was not urgent. He had regular ongoing access. The fact that the access was not what he wanted did not make the motion urgent. The fact that he believed that the mother would use the COVID-19 situation to limit his access was not urgent. Interestingly, as I observed in my endorsement, neither party had made any attempt to get the Office of the Children’s Lawyer involved, despite the order made by Justice Price requesting (with the consent of the parties) its involvement.

[5] The mother seeks costs on a full recovery basis in the amount of $23,475.86. In the alternative, she seeks costs on a substantial indemnity basis although she does not say how much that would be. She does indicate that partial recovery costs would be $15,494.07.

[6] She asks for full recovery costs and in her submissions details the behaviour of the father that would support such an award.

[7] In response, the father states that he acted in good faith when seeking the court’s assistance on an urgent basis. He reargues the issues raised in the motion and submits that no costs should be awarded to either party. In the alternative he asks that costs be reserved to trial.

[8] The father also says that if any costs are awarded to the mother they should be taken from the net proceeds of the matrimonial home. He says that he is struggling financially as the mother refuses to pay her share of the matrimonial home mortgage. The question that arises from this last submission is why should she pay any share of the matrimonial home mortgage? It appears that the Minutes of Settlement entered into on January 13, 2020 contemplated the possibility that the father would purchase the mother’s interest in the matrimonial home. He was to produce all documentation in support of efforts made to qualify for re-financing of the home, failing which the matrimonial home was to be listed for sale. Instead, it appears that the father is relying on the current pandemic to not list the house. Instead, he has moved 4 additional people into the house. Four people who should assist him in paying the mortgage. Four people, who along with the father, could well be liable to the mother for occupation rent.

[9] For these reasons I do not accept that any award for costs in favour of the mother should be taken from her share of the net proceeds of the matrimonial home. The father made the ill advised decision to bring this matter to court and costs will follow.

[10] The mother made an Offer to Settle which was more favourable to the father than my order. The offer is dated April 7, 2020. I take this into consideration in this costs award.

[11] I also take into consideration that the father’s affidavits were unduly lengthy, dealing with issues not relevant to the motion before me. An additional affidavit was required because the father did not explain who was living in the matrimonial home. Given that he wanted to exercise access at the matrimonial home he should have anticipated the requirement to provide this information. This information would have been required at any time but the current pandemic and the steps people are taking to comply with health directives, made this information even more necessary.

[12] In reviewing the mother’s costs outline, I find that a reasonable amount, taking into account the above factors is $15,000 inclusive of disbursements and HST. Although this is close to the partial recovery costs claim, in my view it is more than partial recovery and approaches substantial indemnity. I take into account the failure to provide a Summary of Argument and the failure to comply with court direction.

[13] The costs are payable within 30 days.

Van Melle J. DATE: May 29, 2020