COURT FILE NO.: FS-10-69786-00

DECISION: 20120920

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Philomena Rosa Maria Almeida, Applicant

AND:

Henry Rege Almeida, Respondent

BEFORE: MILLER, J.

COUNSEL: R. Zaldin, for the Applicant

P. Viater, for the Respondent

HEARD: July 9, 2012 and July 20, 2012

COSTS DECISION

[ 1 ] Henry Almeida sought leave to appeal to the Divisional Court all of the temporary orders made by Lemon, J. March 7, 2012 and May 31, 2012. Mr. Almeida also sought a stay of the orders pending appeal.

[ 2 ] The temporary orders made March 7, 2012 required Mr. Almeida to pay child support and spousal support. The order made May 31, 2012 required Mr. Almeida to pay Mrs. Almeida’s costs of that motion fixed at $20,000 forthwith.

[ 3 ] Leave to appeal the temporary orders made by Lemon, J. March 7, 2012, in relation to child support and spousal support, was granted. Leave to appeal the costs order made May 31, 2012 was also granted.

[ 4 ] Mr. Almeida asked that I stay all of the temporary orders made by Lemon, J. March 7, 2012 and May 31, 2012.

[ 5 ] The order for child support made March 7, 2012 was partially stayed pending appeal. The order for spousal support made March 7, 2012 was partially stayed pending appeal. The order for costs made May 31, 2012 was partially stayed pending appeal. Mr. Almeida was ordered, pending the appeal, to pay $10,000 in costs to Mrs. Almeida forthwith.

[ 6 ] There was a conference call July 20, 2012 with counsel to settle the order.

[ 7 ] The Applicant takes the position there should be no costs as the Respondent was only partially successful on the stay application. She points out that the request for stay came well after the initial Notice of Motion.

[ 8 ] The Respondent seeks $7,411.95 in costs arguing that he was successful both in obtaining Leave to Appeal and in having a stay granted. He points out that the Applicant was unsuccessful in vigorously arguing for conditions to be placed on both the Leave to Appeal and the stay. He notes that the Applicant in her affidavit of July 5, 2012 mentioned legal costs for the leave to appeal similar in quantum to those sought by the Respondent.

[ 9 ] In accordance with Rule 24(1) of the Family Law Rules there is a presumption that the successful party is entitled to costs. Rule 24 (11) provides:

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.

[ 10 ] Considering each of these elements I find that the Respondent as the successful party on the Leave to Appeal and being partially successful on the request for stay is entitled to costs. They will be fixed at $3,300 payable forthwith by the Applicant to the Respondent. If the Respondent has not yet paid the costs ordered in the partial stay by me July 9, 2012, the $3,300 may be deducted from that still owing to the Applicant.

MILLER J

Date: September 20, 2012