Peter M. Callaghan

The Applicant sought full indemnity costs after successfully obtaining an order for DNA paternity testing of the Respondent.

The Respondent opposed, arguing for lower costs and alleging bad faith by the Applicant.

The court, applying Rule 24 of the Family Law Rules, found the Applicant was the successful party but did not find bad faith by either party.

Considering the importance and complexity of the issues, the reasonableness of counsel's time and hourly rate ($300/hour for 18 years experience), and the absence of applicable offers to settle, the court awarded partial indemnity costs.

The court also affirmed that a legally-aided client's fee arrangement with Legal Aid does not need to be disclosed, and costs should be assessed based on the private rate of the solicitor.

The Respondent was ordered to pay $4,500.00 inclusive of fees, disbursements, and HST.

This preliminary costs endorsement addresses the propriety of the applicant's reply submissions following a decision on the applicant's motion.

The respondent challenged three aspects of the applicant's reply: allegations of bad faith, arguments regarding legally-aided costs potentially exceeding actual incurred costs, and the introduction of an offer to settle.

The court found the bad faith arguments in reply were proper as they were raised initially.

However, the court allowed the respondent to make further submissions on the legally-aided costs issue, as it was a new argument introduced in reply.

The court struck out the applicant's reply submissions concerning the offer to settle, finding it was raised for the first time in reply and contrary to a prior agreement and ruling.

The applicant mother brought a motion for an order compelling the respondent, who resides in Australia, to undergo DNA paternity testing regarding her 17-year-old child.

The respondent opposed, citing the applicant's delay in bringing the application and his privacy rights.

The court held that while it cannot compel the respondent to undergo testing, it has jurisdiction to grant leave to obtain a DNA test and draw adverse inferences if he refuses.

The court granted leave, finding that DNA testing provides the best evidence of paternity and that delay or privacy concerns do not override the need for this evidence.

Trial decision concerning custody, access, and child support for a child born in 2006 to unmarried parents who never cohabited.

The mother sought sole custody and retroactive child support from birth.

The father sought joint custody with an alternating weekly schedule as recommended by the Office of the Children's Lawyer.

The court found the mother was the primary caregiver and granted her sole custody, rejecting the Office of the Children's Lawyer's recommendation for joint custody based on the parties' inability to communicate and cooperate.

The court ordered the father to pay child support retroactive to the child's birth and rejected many of his claimed business expense deductions as illegitimate.