Portelli v. Laing, 2011 ONCJ 777

Brampton Registry No. 1366/08 DATE: 2011·XII·15 CITATION: Portelli v. Laing , 2011 ONCJ 777 ONTARIO COURT OF JUSTICE BETWEEN: FRANCIS PORTELLI, Applicant — AND — MARY-LOU ANN LAING, KEN LAING and DEBORAH LAING, Respondents Before Justice Manjusha B. Pawagi In Chambers Ruling on Costs released on 15 December 2011 Bernadette T. Duggan ................................................................................ counsel for the applicant Todd C. Jenney ...................................... counsel for the respondents Ken Laing and Deborah Laing Marilynne P.

Glick .................................. counsel for the Office of the Public Guardian and Trustee on behalf of respondent Mary-Lou Ann Laing JUSTICE M.B. PAWAGI:— 1: NATURE OF THE CASE [ 1 ] The Respondents Ken and Deborah Laing seek costs of $2,000 against the Applicant Francis Portelli and his counsel Ms. Duggan for bringing a contempt motion which they then withdrew on the date it was scheduled to be heard, December 1, 2011. The Public Guardian and Trustee counsel Ms.

Glick, representing the Respondent Mary-Lou Ann Laing seeks costs for the same reason in the amount of $500. [ 2 ] The court heard submissions on the issue of costs and the decision was reserved. The following is the ruling. 2: BACKGROUND [ 3 ] The child subject of this proceeding is 12-year-old Joshua Jacob Burt (born December 16, 1999). On February 23, 2009, Justice J. Elliott Allen made a final order removing Joshua from the care of his stepfather, Francis Portelli (applicant) and placing Joshua in the custody of his maternal grandparents, Ken and Deborah Laing (respondents).

The order specified that access between Joshua and his mother, Mary-Lou-Ann Laing (respondent) would continue and that other parties’ access to Joshua shall be in the discretion of the grandparents. Joshua’s mother was hospitalized at the time and was represented by Public Guardian and Trustee counsel Marilynne Glick. Justice Allen also ordered Mr. Portelli to pay costs to the respondent grandparents in the amount of $5,000. [ 4 ] It is now two years later. Joshua continues to reside with his grandparents. His mother Ms. Laing is now residing with Mr. Portelli. Mr. Portelli has not paid the costs award. Mr.

Portelli has not had access to the child since the order was made. Ms. Laing has not had access to the child since she moved from hospital to reside with Mr. Portelli. The reason why there has been no access is disputed. The grandparents state that Mr. Portelli has not requested access nor have they known his address until now. They are agreeing to resume access between the child and his mother, but not between the child and Mr. Portelli, stating that the child fears Mr. Portelli and does not wish to see him. 3: LEGAL PROCEEDING

[5] Mr. Portelli’s notice of contempt motion does not identify the name of the person against whom the contempt motion ismade. It also leaves blank the

section asking for the details of the contempt. His supporting affidavit focuses on Ms. Laing’scircumstances and her desire to see the child, not Mr. Portelli’s desire to see the child. It asks for Justice Allen’s order to be changed,and in the meantime, enforced. It does not ask for any finding of contempt to be made. [6] Ms. Duggan, counsel for Mr. Portelli, explained that she had intended to file a motion to change but was advised bystaff at the court filing counter that she could not do so and that she must file a motion for contempt instead.

Thus, she handwrote anotice of contempt motion on the spot and filed it. She explained that she does not wish to proceed with a contempt motion. She intendsto bring a motion to change. [7] Thus, the contempt motion was withdrawn, leaving only the respondents’ motion for costs. The respondents also seekan order prohibiting the applicant from bringing further motions without prior leave of the court. 4: ANALYSIS AND THE LAW [8] Rule 24 of the Family Law Rules, O.

Reg. 114/99, as amended, provides that the successful party is entitled to costs andsubrule 24(9) provides that, if a party’s lawyer has run up costs without reasonable cause, the court may order the lawyer personally topay the costs of any party. [9] The factors that must be considered under subrule 24(11) include the importance, complexity or difficulty of the issues;the reasonableness or unreasonableness of each party’s behaviour in the case; the lawyer’s rates; time properly spent on the case;expenses properly paid and any other relevant matter. [10] The purpose of awarding costs, as set out by the Ontario Court of Appeal in Fong v.

Chan (1999), 46 O.R. (3d) 330, 128O.A.C. 2, 181 D.L.R. (4th) 614, , [1999] O.J. No. 4600, 1999 Cars​well​Ont 3955, is threefold: 1. To indemnifysuccessful parties for the cost of the litigation, 2. To encourage settlements; and 3. To discourage inappropriate behaviour by litigants. And, as Justice G. Patrick Smith noted in Skramrud v. Skramrud, , 163 A.C.W.S. (3d) 269, [2008] O.J. No. 130, 2008Cars​well​Ont 135 (Ont. S.C.), the court must always have in mind the overriding principle of reasonableness and the fundamentalobjective of preserving access to justice.

The fixing of costs does not begin or end with the calculation of hours multiplied by rates. Justice Smith cites the Ontario Court of Appeal in Boucher et al. v. Public Accountants Council for the Province 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, which held that theoverall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of thecase rather than an amount fixed by the actual costs incurred by the successful party. [11] The respondent grandparents were clearly the successful party. Counsel for the applicant not only withdrew the contemptmotion but even conceded that it should not have been brought. Her explanation was that counter staff directed her to file a contemptmotion even though she wanted to file a motion to change.

This is non-sensical, that a lawyer would take direction from counter staffabout a substantive issue such as whether or not to bring a contempt motion. If there was any problem about counter staff not acceptingher motion to change for filing, she ought to have brought a 14B motion seeking leave to file, or seeking direction from the court. [12] The consequences of her filing a contempt motion, even though she had no intention of proceeding with it, is that therespondents went to the expense of retaining counsel and filing a response.

A costs award is necessary in this case to indemnify themfrom a completely unnecessary expense and to discourage the applicant from filing further frivolous motions. The costs ought to beshared by his counsel as she chose to bring a contempt motion even though she knew she did not wish to proceed with a contemptmotion. [13] The respondents seek costs in the amount of $2,000. No bill of costs was filed, but their counsel Mr. Jenney submittedthe following simple account: He charges $375 per hour and he spent 2.5 hours meeting with his clients to prepare a response and 2.5hours in court on 1 December 2011. Ms.

Glick, from the Public Guardian and Trustee, appeared on behalf of the respondent mother andsought costs of $500. She did not file any responding material to the contempt motion. [14] The applicant Mr. Portelli is in receipt of Ontario Disability Support Payments. He has no other form of income. He hasnot paid any of the $5,000 costs award made against him two years ago. He proposes to pay it at the rate of $10 per month, which wouldtake over 40 years and go beyond the expected life spans of the applicant and the respondents. However, his limited income does notgive him a licence to litigate unchecked.

A costs award must be made to guard against such actions as the within motion which, it isconceded, should not have been brought. [15] Counsel for the respondents asked for the further relief that the applicant be barred from filing any further motions in thisproceeding until he has paid the outstanding $5,000 costs award and/or that he be barred from filing further motions in this proceedingwithout prior leave of the court. This court does not have the jurisdiction to make conditions with respect to the $5,000 costs awardalready made. That proceeding has been disposed of in its entirety.

However, this court may make conditions with respect to the withincosts award and it would be justified in doing so given the history of non-payment of costs. With respect to requiring him to seek leaveprior to filing future motions, such is not justified on the evidence of one improperly brought motion. The respondents are of course freeto seek security for costs in response to any future motion filed given the history of non-payment of costs. 5: FINAL ORDER [16] An order shall issue fixing costs in the amount of $1,000 to the respondents Ken and Deborah Laing; and $250 to thePublic Guardian and Trustee.

The costs are to be shared equally between the applicant and his counsel and are payable forthwith. Theapplicant may not file any further motions in this proceeding until his share of this costs award has been paid.

Released: 15 December 2011 ___________________________ Justice Manjusha B. Pawagi