Samis (Guardian of) v. Samis, 2010 ONCJ 602

Toronto (North York) Registry No. DR- 50728-10 DATE: 2010·XII·15 CITATION: Samis (Guardian of) v. Samis , 2010 ONCJ 602 ONTARIO COURT OF JUSTICE BETWEEN: CATHERINE SAMIS, by her guardian GREGORY MORECROFT, Applicant, — AND — PHILIP SAMIS, Respondent. Before Stanley B.

Sherr Endorsement inscribed on 15 December 2010 CIVIL PROCEDURE — Costs — Assessment of quantum — Full recovery — Acting in bad faith — In his motion to expunge registration of his ex-wife’s Vermont support order under Interjurisdictional Support Orders Act, 2002 , respondent ex-husband served notice on Ontario’s Interjurisdictional Support Orders Unit but not on ex-wife — He also promised to present medical evidence to establish his mental incompetence at time of original proceedings in Vermont Family Court, but never did — Ontario court ruled that there was difference between bad faith and unreasonable behaviour and that, in this case, neither misstep by respondent ex-husband rose to level of bad faith — Essence of bad faith is party’s assurance that his or her actions are aimed for one purpose when they are knowingly and intentionally aimed for another purpose — Even lawyers are not familiar with process under Interjurisdictional Support Orders Act, 2002 and, thus, respondent’s faulty service of notice could hardly be regarded as instance of bad faith — Nor could his failure to provide medical evidence — There was no order of disclosure that he had breached; his failure to produce promised evidence simple meant that he could not prove his case.

CIVIL PROCEDURE — Costs — Assessment of quantum — Full recovery — Unreasonable conduct falling short of bad faith — In his motion to expunge registration of his ex-wife’s Vermont support order under Interjurisdictional Support Orders Act, 2002 , Ontario court found that respondent ex-husband’s conduct of motion was not unreasonable but he did not even come close to establishing viable basis for his motion (suggesting perhaps that he should never have made it in first place) — Court concluded that successful ex-wife in Vermont was entitled to costs on basis of substantial indemnity and it trimmed her claim for $16,429.06 in “full indemnity” costs down to $12,000 in “substantial indemnity” costs, inclusive of fees, disbursements and taxes.

CIVIL PROCEDURE — Costs — Entitlement or liability — Presumption of entitlement for successful party — Consequences of failure to rebut presumption — Applicant ex-wife had defeated respondent’s attempt to expunge registration in Ontario of her Vermont support order — She was successful party and respondent ex-husband failed to rebut presumption of her entitlement in subrule 24(1) of Family Law Rules — Entitlement to costs was no longer in dispute and only issue was quantum of support that respondent would have to pay. STATUTES AND REGULATIONS CITED Family Law Rules , O.

Reg. 114/99 [as amended], rule 18 , subrule 24 (1), subrule 24(8) and subrule 24 (11) . Interjurisdictional Support Orders Act, 2002 , S.O. 2002, c. 13. CASES CITED Boucher et al. v. Public Accountants Council for the Province of Ontario , 2004 CanLII 14579 , 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.). C.S. v. M.S. , 2007 CanLII 20279 , 38 R.F.L. (6th) 315, [2007] O.J. No. 2164, 2007 Cars​well​Ont 3485 (Ont. Fam. Ct.). Delellis v. Delellis and Delellis , 2005 CanLII 36447 , 143 A.C.W.S. (3d) 235, [2005] O.J.

No. 4345, 2005 Cars​well​Ont 4956 (Ont. Fam. Ct.). Serra v. Serra , 2009 ONCA 395 , 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 Cars​well​Ont 2475 (Ont. C.A.).

Lisa Eisen, agent for Esther L. Lenkinski ................................................. counsel for the applicant Valois P. Ambrosino ............................................................................... counsel for the respondent Heather M. Puchala counsel for the designated authority, the Interjurisdictional Support Orders Unit For previous proceeding, see Samis (Guardian of) v. Samis , 2010 ONCJ 500 , [2010] O.J. No. 5402, 2010 Cars​well​Ont 9546 (Ont. C.J.), per Justice Stanley B. Sherr. [ 1 ] JUSTICE S.B.

SHERR ( endorsement ):— On 1 November 2010, I dismissed the respondent’s motion to set aside the registration of a support order from the Vermont Family Court pursuant to the Interjurisdictional Support Orders Act, 2002 , S.O. 2002, c. 13. I invited written costs submissions. The applicant submitted a request that the respondent pay her full indemnity costs of $16,429.06. The respondent asked that no costs be awarded and, if costs were awarded, that payment of any costs award should be payable 14 days after the release of the appellate decision in Vermont (as the order of the Vermont Family Court was appealed).

The Interjurisdictional Support Orders Unit (ISOA Unit) did not make costs submissions. [ 2 ] The Ontario Court of Appeal in Serra v. Serra , 2009 ONCA 395 , 66 R.F.L. (6th) 40, [2009] O.J.

No. 1905, 2009 Cars​- well​Ont 2475, confirmed that modern costs rules are designed to foster three fundamental purposes, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party. [ 3 ] Subrule 24(1) of the Family Law Rules , O. Reg. 114/99, as amended (“the rules”), creates a presumption of costs in favour of the successful party.

The applicant was the successful party; the presumption of costs in her favour was not rebutted. The issue will be the amount of costs that the respondent will be required to pay. [ 4 ] Neither party made an offer to settle. The costs provisions in rule 18 do not apply. [ 5 ] The applicant asks for full indemnity costs based on the bad faith of the respondent pursuant to subrule 24(8).

She bases her claim on the respondent’s failure to personally serve the applicant or her guardian with this motion (only the ISOA unit was originally served) and the respondent’s failure to deliver the medical evidence promised in support of his case. Neither claim rises to the level of bad faith. There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests that his or her actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. See C.S. v. M.S. , 2007 CanLII 20279 , 38 R.F.L. (6th) 315, [2007] O.J.

No. 2164, 2007 Cars​well​Ont 3485 (Ont. Fam. Ct.). The process under the Interjurisdictional Support Orders Act, 2002 is unfamiliar to most counsel. I am not prepared to find that the failure to serve the applicant and her guardian personally was bad faith. The failure to provide medical evidence also did not constitute bad faith. The respondent did not breach a disclosure order; he just could not prove his case. [ 6 ] In making this decision, I have also considered the factors set out in subrule 24 (11) of the rules, which reads as follows:

(11) Factors in costs.— 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. [ 7 ] This case was important for both parties as significant money was at stake. The matter was not complex, but it was made difficult because of the extensive litigation history from Vermont that had to be collated by the applicant (the respondent failed to provide this information in his material). [ 8 ] While I did not find the respondent’s conduct of the motion to be unreasonable, he did not come close to establishing a viable basis for his motion.

An award for substantial indemnity costs is appropriate. [ 9 ] The respondent argued that the applicant acted unreasonably by failing to grant him an adjournment of the first court date on 24 September 2010. The contested request for adjournment was granted as the respondent had only been served with the applicant’s extensive material a few days before the court date. However, the appearance was used effectively to organize the filing of additional material and arranging for the hearing of the motion.

Costs will not be granted for that appearance. [ 10 ] I also considered that the applicant brought her own motion asking the court to vest in her money held by the respondent with the Canadian Imperial Bank of Commerce. After discussions at the first appearance, this motion was withdrawn. This issue would have required some preparation time for the respondent’s counsel to address and there will be a small discount in the costs award for this reason. [ 11 ] The rates of the applicant’s counsel were reasonable.

I find that the rates claimed for the applicant’s law clerk were high and will be reduced. [ 12 ] I also agree with the respondent that some of the material prepared by the applicant was unnecessary; specifically the

portions of the affidavits that amounted to personal character attacks on the respondent. The litigation history was more than sufficient to defeat the respondent’s motion. [ 13 ] I have also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario , 2004 CanLII 14579 , 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.), and Delellis v. Delellis and Delellis , 2005 CanLII 36447 , 143 A.C.W.S. (3d) 235, [2005] O.J. No. 4345, 2005 Cars​well​Ont 4956 (Ont. Fam. Ct.).

Both these cases point out that, when assessing costs, it is “not simply a mechanical exercise.” In Delellis v. Delellis and Delellis , Justice David R. Aston wrote at paragraph 9: [9] However, recent cases under the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, as amended, have begun to de-emphasize the traditional reliance upon “hours spent times hourly rates” when fixing costs. . . . Costs must be proportional to the amount in issue and the outcome.

The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. . . . [ 14 ] Taking into consideration these factors, the respondent will be ordered to pay the applicant’s costs fixed at $12,000, inclusive of fees, disbursements and HST. [ 15 ] The respondent has the ability to pay this costs award. [ 16 ] The respondent’s request to defer the payment of costs is denied for the same reasons that I gave in my decision of 1 November 2010 when addressing the respondent’s request to adjourn the motion until the Vermont appeal decision was released.

He should not have brought this motion and, irrespective of the appeal decision, costs should be awarded. [ 17 ] Costs shall be payable forthwith.