Casanova v. Berry, 2011 ONCJ 668

Brampton Registry No. 1109/06 DATE: 2011·VI·29 CITATION: Casanova v. Berry , 2011 ONCJ 668 ONTARIO COURT OF JUSTICE BETWEEN: NEGENE CASANOVA Applicant — AND — MICHELLE BERRY Respondent Before Justice June A. Maresca Heard on 8 April 2011 Reasons for Costs Decision released on 29 June 2011 Isaac Birenbaum .................................................................................................... for the applicant Joanne Lagoudis ................................................................................................. for the respondent [ 1 ] JUSTICE J.A.

MARESCA:— On January 21, 2011, the parties presented argument on the motion to change brought by the respondent, Ms. Berry. The Court reserved its decision, and released its ruling on April 8, 2011. The parties were invited to make written submissions on the issue of costs. I have been the case management Justice on this motion, and have jurisdiction to award costs on the motion in its entirety. [ 2 ] The history of the case is set out in the Reasons of April 8, 2011. The facts relevant to this decision can be summarized as follows.

On November 26, 2006, a final order was made granting the parties joint custody of their child, Trinity Rain Casanova- Berry, born February 2, 2003. Mr. Casanova’s home was Trinity’s primary residence, and Ms. Berry had care of Trinity three weekends out of four, from Friday until Monday, and holiday time as the parties agreed. That order was made on consent. [ 3 ] There were significant difficulties with the order, and in May of 2009, Mr. Casanova brought a motion to change the joint custody order. He sought sole custody of Trinity, with access to Ms. Berry in his discretion.

He filed materials requesting an order that service on Ms. Berry of the motion to change was not required, on the basis that he did not know where she was or how to contact her. That motion was granted, and an order was made, without notice to the respondent mother, granting him sole custody of Trinity, with access to Ms. Berry in his discretion. [ 4 ] Ms. Berry brought her own motion to change in August 2009, and for the first time learned of the order granting Mr. Casanova sole custody. She requested an order of sole custody. Mr. Casanova’s position was that he should continue to have sole custody of Trinity.

On September 8, 2009, an order was made on consent requesting the involvement of the Office of the Children’s Lawyer. A report pursuant to s. 112 of the Courts of Justice Act was filed in April 2010. In the interim, while the assessment was being done, Mr. Casanova moved Trinity from his home in Mississauga to a new home in Aurora, without notice to Ms. Berry, and in full knowledge that she resided in Hamilton. [ 5 ] The report of the Office of the Children’s Lawyer recommended, inter alia, continuing shared parenting along the lines of the November 2006 order, and expanded holiday time with Ms. Berry.

The clinical investigator indicated a serious concern with Mr. Casanova’s anger and hostility towards Ms. Berry, and the significant negative repercussions to Trinity that result from that. I found that Mr. Casanova was much less supportive of Ms. Berry’s parenting than she was of his. [ 6 ] The order made on April 18, 2011, reinstated a shared parenting arrangement, giving Ms. Berry significantly more time with Trinity.

Neither party was successful in their bid for sole custody of the child, and in my view, no presumption as to entitlement to costs arises. [ 7 ] Under rule 24 of the Family Law Rules , where success in a case is divided, the court may apportion costs as it sees fit. The factors the court must consider are set out in subrule 24 (11):

(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. [ 8 ] In determining whether costs should be payable in this case by one party to the other, Rule 24 (11)(

b) is particularly relevant. Mr. Casanova’s conduct throughout this case has been troubling. I am not satisfied, on the evidence adduced on the motion to change, that he in fact was unaware of how to get in touch with Ms. Berry when he brought the motion to change in May of 2009. In my view, it would have been simple for him to contact Ms. Berry’s parents to assist him in locating her. The order of sole custody made in May 2009 was obtained without proper service. [ 9 ] Mr. Casanova’s move to Aurora in December 2009, while not contrary to court order, was highly prejudicial to Ms. Berry.

He gave her notice of the move on the Friday before Trinity started at a new school on the following Monday. He knew Ms. Berry was living in Hamilton, and chose to uproot Trinity from her friends and her school to take up residence in a place that would almost certainly make it very difficult for Ms. Berry to see Trinity. [ 10 ] Mr. Casanova failed to file a financial statement at any time in these proceedings. The Court had no information about his financial circumstances, despite the fact that Ms.

Berry made a claim for custody. [ 11 ] Finally, the report of the Children’s Lawyer was distressing in that the clinical investigator found that Mr. Casanova was highly critical of and angry at Ms. Berry. A specific recommendation was made that he seek counselling to deal with that hostility, lest it continue to affect Trinity adversely. [ 12 ] I find Mr. Casanova’s behaviour in the course of this litigation to be unreasonable, and as a result, I make an order of costs in Ms.

Berry’s favour. [ 13 ] In determining the amount of costs, I am cognizant of the fact that the parties continue to parent Trinity jointly, and that cooperation between them is critical for her sake. A message must be sent, however, that a party cannot manipulate the court process to undermine the relationship between a parent and a child. Mr. Casanova must understand that it is his duty as a parent to support and encourage Ms.

Berry’s relationship with Trinity, and that his behaviour towards her must be consistent with that duty. [ 14 ] In all of the circumstances, a token order of costs in the amount of $500 is made, payable by Mr. Casanova to Ms. Berry by January 1, 2012. Released: June 29, 2011 ___________________________ Justice J.A. Maresca