Bannerman v. Rumo, 2011 ONCJ 548

Milton Registry No. F434/08 DATE: 2011·X·19 CITATION: Bannerman v. Rumo, 2011 ONCJ 548 ONTARIO COURT OF JUSTICE BETWEEN: SARAH BANNERMAN, Applicant, — AND — KEVIN RUMO, Respondent. Before Justice Roselyn Zisman Endorsement inscribed on 19 October 2011 CIVIL PROCEDURE — Costs — Entitlement or liability — Unprepared party — Failure to abide by court-ordered

schedule ofproduction — During one appearance in course of mother’s motion to vary child support and joint custody order, father sufferedbreakdown that required his restraint and removal from courtroom by several police officers — As result of this incident, father wassubject to interim restraining order prohibiting any contact with wife or 4-year-old son — Even though he subsequently apologized, courtwas not prepared to consider allowing him any access or lifting restraining order until he filed report from his psychiatrist or familydoctor that would explain his breakdown and offer some assurance that child would be safe in his care — Court set timetable for serviceof these materials, including financial statement from father — On next court date, father failed to appear at appointed time nor had hefiled required materials — After ½-hour period of grace, court granted order in mother’s favour on unopposed basis — Father dideventually appear more than hour after appointed time and was advised that he could seek to have order set aside but he did nothing — Inmeantime, mother made motion for costs — Having been completely successful for relief that she sought, mother was presumed to beentitled to costs — Court did not consider father’s breakdown in courtroom as unreasonable conduct for costs purposes, but it did focuson his failure to attend court at proper time and to file required materials in accordance with prescribed timetable — Even if he hadappeared at correct time, costs could have been awarded against him under subrule 24(7) of Family Law Rules for not being prepared formotion — Court awarded mother costs of $1,949.25 on full indemnity basis.

STATUTES AND REGULATIONS CITED Family Law Rules, O. Reg. 114/99 [as amended], subrule 24(1), subrule 24(7) and subrule 24(11). CASES CITED Holt v. Anderson, , 205 O.A.C. 202, 21 R.F.L. (6th) 321, [2005] O.J. No. 5111, 2005 Cars​well​Ont 6876 (Ont. Div.Ct.). Ramcharitar v. Ramcharitar, Jagam and Legal Aid Ontario (2002), (ON SC), 62 O.R. (3d) 107, 32 R.F.L. (5th) 435,27 C.P.C. (5th) 331, [2002] O.J. No. 4238, 2002 Cars​well​Ont 3666 (Ont. S.C.). Glen A.

Cook ................................................................................ counsel for the applicant mother Respondent father, Kevin Rumo ........................................................................... on his own behalf [1] JUSTICE R. ZISMAN (endorsement):— This is a motion for costs by Ms. Bannerman as the successful party on amotion to change that has been before the court since 10 June 2010. [2] Ms.

Bannerman initiated a motion to change the order of 30 June 2009 regarding child support and the order of 3September 2009 that granted the parties joint custody of the child, Wilhelm Spencer Rumo, born on 30 April 2007.

[ 3 ] Prior to the motion to change, these parties were before the court on numerous occasions and the highly contentious nature of the case continued. The Office of the Children’s Lawyer became involved and issued a report that recommended sole custody to Ms. Bannerman but extensive access to Mr. Rumo. [ 4 ] In the course of these proceedings, the matter was before me on 25 January 2011 for a settlement conference. At the time both parties were unrepresented. Mr. Rumo refused to identify himself or accept the jurisdiction of this court. He became belligerent, aggressive and incomprehensible.

He needed to be restrained and removed from the courtroom by several police officers. As a result, on my own motion, I made a temporary restraining order prohibiting Mr. Rumo from having any contact with either Ms. Bannerman or his son except through the Office of the Children’s Lawyer. All prior access orders were suspended until further court order. [ 5 ] On the return of the matter on 9 March 2011, Ms. Bannerman orally requested a final order prohibiting Mr. Rumo from having any contact with his son. Although Mr.

Rumo was not present at this hearing as he was incarcerated, he had previously filed a proper response to the motion to change. Ms. Bannerman was advised to serve and file a proper motion on notice to Mr. Rumo for the relief that she requested. [ 6 ] On 7 June 2011, the matter returned to court. Counsel for Ms. Bannerman had served and filed a motion for the Halton Regional police to release their threat assessment report about Mr. Rumo, a continuation of the restraining order and leave to amend her motion to change. Mr.

Rumo was in the process of attempting to retain counsel and had not filed any responding materials. [ 7 ] On 12 July 2011 the matter was again before the court. Mr. Rumo who was self-represented, had just prepared his motion for access and his responding affidavit and was granted permission to file his affidavit. Although Mr. Rumo apologized for his previous outburst and behaviour in the court, I advised him that, on the basis of his affidavit alone, I would not be prepared to grant him any access or to remove the outstanding restraining order.

I advised him that he would need to file a report from his psychiatrist or his family doctor to explain what led up to his breakdown in court on 25 January 2011; what treatment, if any, he is or has received; the prognosis for any re-occurrence for any future breakdowns or what risk, if any, there is to ongoing success by him to his son, supervised or unsupervised. I held that, until he could provide such a report, it was my view that there was a risk to the safety and well-being of his son. Mr. Rumo appeared to understand the concerns of the court.

Both motions were adjourned for a determination of what access, if any, should be granted to Mr. Rumo. [ 8 ] On the return date of 28 July, both parties had just received materials that they wished to file and that were only served on the other party that day. Both parties therefore agreed to an adjournment of their respective motions. A timetable for service of these materials was set out. Mr. Rumo was ordered to file an undated financial statement with proof of his current income. [ 9 ] The motions were adjourned to 4 August 2011 at 2:00 p.m. By 2:30, Mr. Rumo had not yet attended court.

He had also not filed any further affidavit or his financial statement. materials. Ms. Bannerman had served and filed two affidavits and had attached as an exhibit the police threat assessment report about Mr. Rumo. [ 10 ] Ms. Bannerman had previously served and filed a motion for contempt that I dismissed without costs. [ 11 ] With respect to her motion to change the orders of 30 June 2009 and 3 September 2009, a final order, on an uncontested basis, was made as follows: 1. Sarah Bannerman shall have sole custody of Wilhelm Rumo, born on 30 April 2007. 2.

Kevin Rumo shall have no access at the present time, subject to his right to bring a motion on notice to Ms. Bannerman for access. 3. Ms. Bannerman can be served by ordinary mail in care of Dale Colbourne at 180 Pressed Brick Drive, Brampton Ontario L6V 4K6. 4. Based on an imputed income of $32,000.00, the respondent Kevin Rumo shall pay child support of $293.00 per month as of 1 August 2011 without prejudice to his right to vary this order based on his actual income. 5. Kevin Rumo shall provide to the applicant, Ms.

Bannerman a copy of his tax return with all attachments and notices of assessment annually as of 30 June 2012 and each year thereafter to be mailed to the applicant in care of her mother. 6. Kevin Rumo is also required to pay the outstanding order of costs of $260.00 and medical expenses of $137.20. These amounts are to be enforced by the Family Responsibility Office as an incident of child support. 7. Mr. Rumo’s motion is dismissed without prejudice. 8. Mr.

Cook shall be permitted to file within 30 days his written submissions as to costs to be no more than 3 pages with a bill of costs attached. [ 12 ] A separate order was made to continue the restraining order against Mr.Rumo. [ 13 ] An addendum to this order was made as follows: It is now 3:15 p.m. I am advised that Mr. Rumo attended at 3:00 p.m. and indicated he misdiarized the court hearing time and he was advised of today’s order.

He is of course is at liberty to take the necessary steps either to set aside my order or to take steps to bring a motion for access and other relief. [ 14 ] It is in this context that Ms. Bannerman’s counsel has filed his submissions for costs and seeks costs of $1,949.25 inclusive of fees and disbursements. [ 15 ] Pursuant to subrule 24(1) of the Family Law Rules , O. Reg. 114/99, as amended, a successful party is presumed to be entitled to costs. Ms. Bannerman was completely successful for all the relief that she requested in her amended motion to change.

[16] Mr. Rumo not only failed to attend court at the scheduled time but he failed to file any motion materials or his financialstatement in accordance with the timetable set out by the court. Even if he had been present at court, costs could have been awardedagainst him pursuant to subrule 24(7) of the Family Law Rules for not being prepared for the motion. [17] I have considered the factors set out in subrule 24(11) of the Family Law Rules and find the following factors to berelevant: 1. This issue of ongoing access by Mr. Rumo was extremely important to both parties. 2. Mr.

Rumo’s behaviour was concerning but I would not characterize it as unreasonable. After his initial breakdown incourt, he appeared to understand why the court and Ms. Bannerman required a medical report to explain his behaviour andto offer some assurance that the child would be safe in the future in his care. 3. Mr. Cooks’s rate of $250.00 per hour is reasonable for a lawyer of 12.5 years experience. I agree that the court is notrestricted to ordering costs at a legal aid rate. See Ramcharitar v.

Ramcharitar, Jagam and Legal Aid Ontario (2002), (ON SC), 62 O.R. (3d) 107, 32 R.F.L. (5th) 435, 27 C.P.C. (5th) 331, [2002] O.J. No. 4238, 2002 Cars​well​-Ont 3666 (Ont. S.C.); Holt v. Anderson, , 205 O.A.C. 202, 21 R.F.L. (6th) 321, [2005] O.J. No. 5111,2005 Cars​well​Ont 6876 (Ont. Div. Ct.). 4. The time to prepare the motion materials and argue the motion was appropriate as were the disbursements. Mr.

Cook’s billof costs is a good example of how counsel can properly represent a client of modest means and still do an excellent job ofrepresenting that client. [18] In the circumstances of this motion and in view of the modest costs sought, I am prepared to order full indemnity of$1,949.25. [19] I therefore order that the respondent Kevin Rumo shall pay to the applicant, Sarah Bannerman her costs fixed at$1,949.25 forthwith. Such costs to be enforced by the Family Responsibility Office as an incident of child support. Support deductionorder to issue.