Saliba v. Saliba, 2011 ONCJ 737

Cambridge Registry No. 083199-01 DATE: 2011·V·18 CITATION: Saliba v. Saliba , 2011 ONCJ 737 ONTARIO COURT OF JUSTICE BETWEEN: MONICA SHEILA MAY SALIBA, Applicant — AND — JOSEPH THOMAS SALIBA, Respondent Before Justice Paddy A. Hardman Reasons for Judgment released on 18 May 2011 Application for costs Anna L. Towlson ........................................................................................ counsel for the applicant Respondent, Joseph Thomas Saliba ....................................................................... on his own behalf [ 1 ] JUSTICE P.A.

HARDMAN:— The original application before the court was heard at trial December 16, 2010 and December 17, 2010. The decision was reserved and later released February 11, 2011. In that decision, the court ordered that any party seeking costs was to serve and file submissions within 30 days of the release of the decision. Responding submissions were to be served and filed within 20 days of receipt of the other party’s submissions. The original party then had 10 days to file reply. [ 2 ] The applicant through her counsel has filed costs submissions which were served on the respondent by courier on March 14, 2011.

The applicant has filed as part of her submissions a copy of counsel’s bill of costs. [ 3 ] The respondent has not filed anything in response. THE APPLICANT’S POSITION [ 4 ] The applicant has outlined a number of considerations for the court in looking at Rule 24 and the issue of ordering costs. She notes that the father has conducted himself unreasonably both in and out of the courtroom.

It appears that the father has yet to pay the last costs order and has continued to be a problem to the family despite the move of the children with their mother to Gaspé, Quebec. [ 5 ] Counsel has also asked the court to take into account the respondent’s reduced financial circumstances. CONSIDERATIONS Costs of Retaining Initial Counsel [ 6 ] The applicant was first represented by counsel on February 26, 2010. It is noted in the submissions that that counsel had to withdraw due to ill health.

Despite requests, the applicant has been unable to obtain an account for that lawyer to present to the court. [ 7 ] On February 26, 2010, the applicant was awaiting court-ordered disclosure from the respondent. [ 8 ] Then suddenly on March 26, 2010, despite having filed the application seeking custody of his “biological children” S and N, he announced to the court that he intended to bring a motion seeking DNA testing. As he had not done so by the return date of April 30, 2010, the matter was adjourned again to May 14, 2010 with an argument date set for May 21, 2010.

On May 21, 2010, the father unsuccessfully argued the motion seeking paternity testing.

[ 9 ] On June 25, 2010 there was another to be spoken to date and then it was heard at a settlement conference on July 12, 2010. On July 13, 2010, he kept counsel and the court waiting as he was an hour late for the trial management conference. [ 10 ] On August 13, 2010, the matter was removed from the trial list due to the applicant’s counsel being unwell and unable to continue. By the adjournment date of October 22, 2010, the applicant’s current counsel had been retained. [ 11 ] It is certainly the expectation that a party will seek costs at each step of the proceedings.

While this may not be always possible to do, for discrete events such as motions, it is appropriate to seek costs at the time. There is no indication that costs were requested or dealt with at the time of the motion seeking paternity testing. Also, the applicant had the opportunity to seek costs given the failure of the father to arrive on time at the first trial management conference and yet no costs appear to have been sought. However, some of the appearances including settlement conferences do qualify for the court’s consideration.

Also the first counsel obviously met with the applicant to obtain instructions and prepared a number of documents on her behalf. [ 12 ] There is no Bill of Costs available from this counsel so both the time spent and the fee scale must be estimates. It is certainly the case that the first counsel would probably qualify for a pay scale higher than the second counsel given the greater number of years at the bar.

However, as the court does not know what that would be, I am prepared to estimate the costs based on the same $225/hour. [ 13 ] In looking at this matter, the court is prepared to consider that the applicant should have six hours of that counsel’s time considered in this cost consideration. Those six hours should be considered at the rate of $225/hour being a total of $1350. Costs of Retaining Current Counsel [ 14 ] The Bill of Costs filed starts part way through the proceedings on October 4, 2010 with the retainer of the current counsel.

That account appears to include expenses incurred after trial which in my view are not available to the court to consider. Therefore the expenses for the applicant’s current counsel that should be considered are from October 4, 2010 to December 17, 2010 as well as costs associated with the review of the decision and preparation and issuing of the order. That works out to 47.5 hours at $225/hour being $10,687.50. Factors to consider [ 15 ] As neither party filed any Offer to Settle, Rule 18 is not engaged. However, under Rule 24 there are a number of issues to be examined. 1. The applicant was successful.

The respondent sought custody initially and then tried to have the court order that the mother and the children were to stay in Cambridge so that he could have access. The court ordered custody to the mother and allowed the children to remain in Gaspé, Quebec with the mother. 2. While it would have been preferred to have the applicant not move until the matter was heard, given the facts as set out at trial, her decision to do so was not unreasonable and did not interfere with the father’s ability to have the matter heard in this jurisdiction. 3. The applicant did not make an Offer to Settle. 4.

The respondent at times absented himself from the court proceedings, failing to attend at the trial management conference. 5. The respondent raised the issue of paternity regarding the second child late in the proceedings despite having acknowledged the child as his own at court and in documents. Further despite a decision rejecting his application for DNA testing, he raised the issue again at trial. He admitted that his reason for doing so was to reduce his child support. 6. The respondent failed to pay the costs order of $225 ordered November 5, 2010. 7.

The respondent continued to trial despite stating that he could not afford to have custody or access for extended times to the children. He refused the offer of liberal access during the summer. [ 16 ] It is clear that the father prolonged the matter before the court by raising the issue of paternity after it had already been acknowledged. He refused to consider any resolution of the matter.

His position at trial was completely unreasonable considering the circumstances of the applicant and the children. [ 17 ] The fact that the respondent has behaved in a non-child focused manner is demonstrated not only in his decision to go to trial on this matter and refuse to consider options but also in the interactions between himself and the applicant and himself and the children.

Further it became clear in the trial that he put his own interests ahead of those of his children. [ 18 ] It is hard to imagine a parent who has behaved so badly toward his or her family: • Left the family without a thought about their wellbeing • Gave money to others while not paying child support • Put himself first including his smoking • Entered the home after separation without consent and stole the mother’s mail • Threatened to break into her residence at other times

• Advertised for a “hit man” to go after the applicant • Threatened, harassed and degraded the applicant on line • Promised to send a gift to his daughter who was very excited but he returned it instead to get the money for himself • Misled the police about not knowing where the children were and the fact that he was not providing any contact information • Lied about the applicant interfering with his telephone access when in fact he had blocked their calls • Stalked the applicant when visiting in Cambridge [ 19 ] The applicant has submitted that the respondent’s efforts to contact the applicant have not been for the purpose of access but instead to harass and threaten her and the information supports that conclusion. [ 20 ] Further the respondent ultimately put forward no plan to have the children in his care and the litigation from his perspective seemed completely unrelated to the best interests of the children.

DECISION [ 21 ] It is appropriate to consider the respondent’s financial circumstances in the exercise of the court’s discretion to order costs as noted in the Courts of Justice Act subsection 131(1). In this case the respondent has an outstanding obligation of child support and repayment of arrears. He also has a cost order still outstanding. Therefore certainly full recovery is not appropriate. [ 22 ] The fact that no Offers to Settle were served by the applicant is also a consideration.

However, it must be noted that the respondent was completely unreasonable in his approach to this litigation. [ 23 ] Given all the considerations, the court is prepared to limit recovery to an amount that approximately reflects the cost of trial preparation and the costs to review the decision and issue the order. ORDER [ 24 ] The respondent father is to pay costs of $4,000 to the applicant mother at the rate of $75/month commencing July 1, 2011.

Should the respondent father fail to pay the costs on time as ordered, the balance of the costs outstanding shall become due and payable at the discretion of the applicant mother. Released: 18 May 2011 Signed: “Justice Paddy A. Hardman”