O. v. O., 2011 ONCJ 431

Toronto Registry No. DFO 08 10213 B3 DATE: 2011·VIII·11 CITATION: O. v. O., 2011 ONCJ 431 ONTARIO COURT OF JUSTICE BETWEEN: B. O., Applicant, — AND — P.O. Respondent. Before Justice Penny J.

Jones Endorsement inscribed on 11 August 2011 CIVIL PROCEDURE — Costs — Entitlement or liability — Impropriety in litigation process — Unreasonable behaviour — Disregardof conventional litigation standards — On day 5 of trial in dispute over access, child and spousal support, restraining order and non-removal order, after mother’s side of case was closed, father asked for disclosure order for production of children’s aid society file onthis family — Father had made no mention of this file at case management stage of proceedings, even though he was well aware ofsociety’s involvement with family — Nevertheless, father’s lawyer convinced trial judge that file might reasonably contain informationabout children’s best interests — Judge had therefore ordered society to produce copy of file to father’s lawyer within 7 days and that he,in turn was to disclose file to mother’s lawyer 7 days later — In fact, mother’s lawyer did not receive material until day before trialresumed 4 months later — On day 6 of trial, father apparently wanted society file to be admitted as “business record” but had notcomplied with

section 35 of Ontario Evidence Act — He wanted further chance to cross-examine mother and to re-examine father oninformation in society file, to all of which mother’s lawyer could not respond, given late arrival of voluminous file and inability toreview it on such short notice — Father had also updated financial statement that he wanted to file that he likewise had not served onother side — His original financial statement had been next to useless but mother’s lawyer had begun to cross-examine father on it 4months earlier — Trial judge ruled that father’s production of new financial statement on day that trial resumed after 4-month hiatusseverely prejudiced mother’s ability to prepare and carry on effective cross-examination and was inexcusable — Father also had newmedical reports showing partial paralysis on his left side, but had not served them on mother and had not complied with

section 52 ofOntario Evidence Act, which trial judge found similarly inexcusable and severely prejudicial to presentation of mother’s case inreasonable fashion — Layout of evidence was already extremely confusing and disjointed and now to allow filing of fresh documentsand re-opening of examinations and cross-examinations would be too impractical — Trial judge therefore declared mistrial, forcing caseto proceed to new trial where evidence would be considered in orderly manner and where timely disclosure would occur — Trial judgefound father solely responsible for waste of 6 days of trial because he had acted unreasonably within meaning of rule 24 of Family LawRules — Mother was therefore entitled to her costs occasioned by mistrial — Mother asked for costs on “substantial indemnity” basis of$26,326.92, calculated on her lawyer’s private rate but, in fact, lawyer was on legal aid retainer and would receive only $8,600.82 atlegal aid rate — Because father was man of modest means, it was fair and reasonable in this case to order costs against father on legal aidscale.

STATUTES AND REGULATIONS CITED Evidence Act, R.S.O. 1990, c. E-23 [as amended]. Family Law Rules, O. Reg. 114/99 [as amended], rule 23. CASES CITED Boucher et al. v. Public Accountants Council for the Province of Ontario, , 71 O.R. (3d) 291, 188 O.A.C. 201, 48C.P.C. (5th) 56, [2004] O.J. No. 2634, 2004 Cars​well​Ont 2521 (Ont. C.A.).

Denise M.F. Badley ....................................................................... counsel for the applicant mother P. Ronald Krumeh ....................................................................... counsel for the respondent father [ 1 ] JUSTICE P.J.

JONES ( endorsement ):— The applicant seeks costs on a “substantial indemnity” basis in the amount of $26,326.92, calculated on counsel’s private rate, or $8,600.82 at the legal aid rate arising from the six-day trial that terminated when I declared a mistrial. [ 2 ] The mistrial arose in the context of a family (non-child welfare) trial in which access, child and spousal support, a restraining order and a non-removal order was at issue.

On the first day of trial, a custody order in favour of the applicant mother was made on consent. [ 3 ] The allegations in this case are very serious and the parties agree on very little. The respondent father has not seen the children since 2007 and the mother has made allegations of physical and sexual assault by the father against her and a number of the children. [ 4 ] As to the financial circumstances of the respondent, the respondent takes the position that he has no money.

He alleges that he is living off credit cards and lines of credit by borrowing from one card and paying that card off with money borrowed from another card. He also takes the position that he is medically unfit to work. The mother alleges that he has owned property in Toronto in the past, if not in the present, and to her understanding, owns property in Nigeria. There is currently a substantial temporary child and spousal support order outstanding that is not being paid. [ 5 ] This case began on 26 October 2010. On 3 June 2011, on the sixth day reserved for the hearing of this matter, I declared a mistrial.

I hold the respondent wholly responsible for the trial not proceeding to a conclusion. In order to understand my finding in this regard, it is necessary quickly to review the progress of the trial to the point that I declared the mistrial. In this regard, I have reviewed my notes and the appearance memoranda in the file. [ 6 ] On 2 February 2011, on the fifth day of trial, counsel for the respondent sought a disclosure order requiring the production of the children’s aid society file on this family. He argued that it was necessary for him to have disclosure of the file in order to properly present his case.

He told me that he was particularly interested in that file as it related to matters that occurred in 2002 and 2003 and in 2007 (when the parties separated). I questioned why this disclosure motion had not been made during the case management phase of the proceeding and commented that all disclosure issues should have been addressed prior to trial.

I have since reviewed the trial management brief and no mention is made of the society file by the respondent as an outstanding issue to be dealt with prior to trial, although the involvement of the society in the family was well known to the respondent father. [ 7 ] After argument, counsel for the respondent convinced me that the file might reasonably contain information touching on the best interests of the children; so I ordered production of the file.

In the presence of counsel for the society, I ordered that the society produce a copy of the file to the respondent’s counsel within seven days and ordered that counsel for the respondent provide disclosure of the file to the applicant’s counsel seven days thereafter at his expense. [ 8 ] When the trial recommenced on 3 June 2011, I was advised by the counsel for the applicant that she had received photocopies of the society file in the afternoon of the day before, some four months after I made my disclosure order.

Both counsel agree that the file was actually received by counsel for the respondent on 7 February 2011 but was not, according to the respondent’s counsel, provided to the applicant’s counsel because of “retainer problems”. At the resumption of the trial on 3 June 2011, I was advised by the counsel for the respondent that he wished to file the contents of the society file with the court (no doubt as “business records”). As well, he told me that he had an updated financial statement for filing and new medical reports that shows that his client is partially paralysed on his left side.

These documents had not been shared with opposing counsel and no compliance with the Evidence Act , R.S.O. 1990, c. E-23 , as amended, as to the production of business records or medical reports had been served on the opposing side and filed. [ 9 ] With respect to the society file, I indicated to counsel that, simply because the file had been ordered disclosed, did not mean that it was then automatically admissible at trial as business records. [ 10 ] I asked him about the relevance of the material in the file.

He indicated to me that it was relevant and that it contained information that went to the best interests of the children.

He also indicated that the file contained information about a police interview with the applicant concerning the allegation of sexual abuse of the children allegedly perpetrated by the respondent that had a bearing on the access issue before me, although he did not know how he might use this information at trial. [ 11 ] I asked him whether he would want to have the applicant recalled so that he could have an opportunity to cross-examine her on the information contained in the file and he said that he would want a further opportunity to cross-examine her.

He indicated that he also wanted to re-examine his client on the information. How admission of the evidence might affect the applicant was unclear as her counsel indicated that she had not had an opportunity to review the voluminous file in any detail, given its late arrival at her office. [ 12 ] As to the updated financial statement, I had indicated to counsel that no updated financial statement was included in the continuing record as required by rule 23 of the Family Law Rules , O. Reg. 114/99 , as amended, when the trial began on 26 October 2010.

Even when the respondent took the stand on 28 October 2010, no updated financial statement was available to the court or to opposing counsel; the financial information adduced was very confusing without an updated financial statement. The financial statement found in the trial record was almost useless.

According to the respondent, he had suffered a serious accident in August 2010 that rendered him unfit to work. (It was his evidence that he could no longer work as a taxi driver.) As there was an outstanding child and spousal support order and claim, this lack of timely financial disclosure severely hampered the ability of the applicant to prepare for cross-examination. Cross-examination began in February 2011, again without an updated financial statement.

To produce a new financial statement on 3 June 2011, on the day that the trial recommenced after a four-month hiatus, severely prejudiced the applicant’s ability to prepare and carry on an effective cross-examination and was, in my opinion, both inexplicable and inexcusable.

[13] And further, to produce a new medical report after the applicant’s case was closed, without any attempt at compliancewith the Evidence Act and with no prior notice to the applicant, was similarly inexcusable and severely prejudiced the applicant in herattempt to represent her client in a reasonable fashion. Given the requests to file documents and re-open examinations and cross-examinations of the parties, I considered adjourning the matter but rejected this option as being impractical and too confusing.

In effect,the evidence would have to be introduced out of order and the witnesses I heard would have to be recalled and re-examined. Theevidence as adduced was already extremely confusing and disjointed. [14] In these circumstances, I decided that I would be unable to address the unfairness to the applicant or the best interests ofthe children without declaring a mistrial, thereby allowing the matter to proceed to a new trial where all the evidence would beconsidered and timely disclosure would occur.

As I find the respondent solely responsible for the fact that six days of trial were thrownaway for the reasons previously enumerated, I find that the respondent acted unreasonably within the meaning of rule 24 of the FamilyLaw Rules and I have determined that the applicant is entitled to her costs occasioned by the mistrial. [15] As to the quantum of costs, I am mindful of the comments made in Boucher et al. v. Public Accountants Council for theProvince of Ontario, , 71 O.R. (3d) 291, 188 O.A.C. 201, 48 C.P.C. (5th) 56, [2004] O.J. No. 2634, 2004 Cars​well​-Ont 2521 (Ont.

C.A.), that the fixing of costs does not begin and end with the calculation of the hours times the lawyer’s hourly rate butrather, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of thecase. [16] In this case, I have determined that the applicant should be entitled to her costs at counsel’s legal aid rate. In deciding touse this rate, I have considered both the financial circumstances of the parties and the importance of the issues to be decided in this case.

The costs claimed by the applicant calculated at a legal aid rate reflect the amount actually paid or payable for the work done by counselfor the applicant. I find on the facts of this case that it is fair and reasonable to apply this legal aid scale of costs to the respondent who isa man of modest means. Accordingly, I set the costs payable by the respondent to the applicant at $8,600.82, inclusive of HST.