Court File and Parties
COURT FILE NO.: FS-308/19
DATE: April 22, 2021
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Cruz Elena Osorio Moncada, applicant
AND:
Horacio Pereira Alexandre
BEFORE: MITROW J.
COUNSEL: Leanna J.T. Simpson for the applicant
Horacio Pereira Alexandre not appearing
HEARD: written submissions filed
ENDORSEMENT on costs
[1] The applicant has provided her written costs submissions, as permitted pursuant to my final order dated February 11, 2021, made after an undefended trial.
[2] The applicant’s main claim was for damages as a result of injuries sustained by the applicant at the hands of the respondent, who attacked the applicant with a hammer.
[3] The reasons for judgment are reported at Moncada v. Alexandre, 2021 ONSC 1082 (Ont. S.C.J.).
[4] The applicant was awarded general and special damages totalling $60,000 and $8,700, respectively.
[5] The applicant was successful and is presumptively entitled to costs pursuant to r. 24(1) of the Family Law Rules, O. Reg. 114/99.
[6] I consider the factors in r. 24(12).
[7] The applicant has paid legal costs inclusive of HST and disbursements in the amount of $18,026.78; some additional legal expenses will be incurred by the applicant to finalize this case, including disbursing the remaining proceeds held in trust from the sale of the parties’ jointly-owned residence.
[8] The applicant seeks $15,000 all inclusive for costs. I find that the time spent and fees charged by Ms. Simpson, who was called to the bar in 2002, to be reasonable, as is the hourly rate of $390.
[9] Although no offers to settle were served by the applicant, the respondent failed to respond to the application, which also included a claim for the sale of the jointly-owned residence. At trial, the applicant sought, and as indicated earlier, obtained $60,000 for general damages.
[10] The respondent’s unreasonable behaviour included a vicious assault and battery of the applicant. The respondent’s tortious conduct is described at paras. 15-22 of the reasons for judgment:
[15] The evidence of the applicant discloses, and I find, that she was viciously attacked and injured by the respondent on September 28, 2019.
[16] The applicant’s evidence was that, without warning, the respondent attacked her with a claw end of a hammer.
[17] The attack occurred at the parties’ home. As part of her narrative, the applicant deposes that, in August 2019, that she told the respondent that she wanted to separate because of his “mental abuse”, and that she wanted to sell their jointly-owned home. According to the applicant, the respondent began yelling profanities at her.
[18] On the day of the attack, the applicant was using the computer when the respondent began striking her with the claw end of the hammer while shouting that she is “done” and that “this is the last day of your life”.
[19] The applicant’s evidence is that she covered her head and arms with her hands while the respondent continued to “batter me with the claw end of the hammer”.
[20] The applicant attempted to run to the door but she was having difficulty seeing because of all of the blood.
[21] The respondent caught up to the applicant and again began beating her with the claw end of the hammer. The applicant deposes that she was able to grab the hammer from the respondent, throw it and then escape out the door of the house.
[22] Some of the applicant’s neighbors attended, St. Thomas Police were contacted and attended and the applicant was taken to the hospital via ambulance.
[11] I find the applicant’s request for costs in the amount of $15,000 all inclusive to be reasonable.
[12] The applicant also requests some additional relief, which I grant in the order below.
[13] Pursuant to an existing order of Price J., all encumbrances were to be paid prior to the division of the net sale proceeds. Subsequent to that order, the respondent caused a Legal Aid lien to be placed on the parties’ jointly-owned residence in the amount of $14,858.65, inclusive of the discharge fee. The applicant submits that this lien was for legal fees incurred by the respondent to defend his criminal charges arising from the assault on the applicant.
[14] I agree with the applicant’s submission that the order below should include a provision that 50 percent of the lien amount ($7,429.33) should be paid to the applicant from the respondent’s share of the net sale proceeds to ensure that the respondent solely is responsible for payment of the Legal Aid lien.
[15] The applicant's costs submissions did not address specifically pre-judgment interest. Accordingly, I have treated the applicant's request for costs as inclusive of any pre-judgment interest.
ORDER
[16] I make the following final order:
The respondent shall pay forthwith to the applicant her costs of the application fixed in the amount of $15,000 inclusive of HST and disbursements.
The following amounts shall be paid to the applicant from the respondent’s share of the net proceeds from the sale of the parties’ jointly-owned property located at 14 Bennett Place, St. Thomas, Ontario:
(a) $15,000 in satisfaction of the costs as ordered in paragraph 1; and
(b) $7,429.33 to reimburse the applicant for one-half of the Legal Aid lien placed by the respondent against the said jointly-owned property and which said lien was paid in full on the sale of that property.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: April 22, 2021