COSTS ENDORSEMENT

COURT FILE NO.: FC-11-37791-0000
DATE: 2012-02-21
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Thomas Bel l, Applicant

AND:
Lorie Bell, Respondent

BEFORE: The Honourable Madam Justice L.M. Olah

COUNSEL: Rodica David Counsel, for the Applicant

John P. Schuman Counsel, for the Respondent

HEARD: by written submissions

[ 1 ] The Applicant husband moved to have a reconsideration of the Court's motion decision dated September 28, 2011.

[ 2 ] The Respondent wife was successful in defeating the husband's motion for the reconsideration of the September 28, 2011 order.

[ 3 ] Pursuant to Rule 24 of the Family Law Rules , the successful party is entitled to costs. However, the question remains whether such recovery should be on a full or partial recovery basis.

[ 4 ] The Respondent argues that the applicant's motion was ill-conceived and indicative of bad faith in that he did not believe that he would be successful but wished to exhaust the Respondent wife financially and emotionally. In the alternative, the respondent argues that the husband's actions are reflective of aggressive litigation which is inherently unreasonable.

[ 5 ] I cannot condemn the Applicant with bad faith for his right to aggressively pursue his remedies for an order he believed to be "unusual".

[ 6 ] It is clear that the Applicant was not happy with the decision of the order dated September 20, 2011. His displeasure was rooted in his concern for his financial circumstances, which he suggested were dire and reflective of his fear of his inability to comply with the order. Rather than pursue the appropriate course of action by way of an appeal of the decision, he determined to incur further litigation costs by insisting on a reconsideration of the order. Although such action is not reflective of aggressive litigation, it is reflective of unreasonableness and in such circumstance, attracts a full recovery of the costs incurred by the Respondent.

[ 7 ] It should be noted that in response to the Applicant's motion for rehearing of the September 28, 2011 motion decision, the Respondent sought but was not successful in obtaining costs for the preparation of her affidavit of documents and the full recovery will be minimized accordingly.

[ 8 ] The Respondent's costs as submitted being reasonable in this circumstance, the Applicant shall pay to the respondent as and for costs of the reconsideration motion dated November 17, 2011, reduced by 10%, the sum of $5750 together with HST, which is to be collected as spousal support and enforced by the Family Responsibility Office.

[ 9 ] Support Deduction Order to issue.

OLAH, J.

Date: February 21, 2012