ONTARIO
SUPERIOR COURT OF JUSTICE
SIMCOE COURT FILE NO.: 3773/96
DATE: 2013/01/18
BETWEEN:
LESLEY JANE VANSICKLE (aka Jane Elms)
Walter Drescher, for the Applicant
Applicant
- and -
BRIAN AUSTIN VANSICKLE
Steven McCutcheon, for the Respondent
Respondent
THE HONOURABLE MADAM JUSTICE L.M. WALTERS
COSTS ENDORSEMENT
[1] On December 21st, 2012, I rendered judgment for the applicant regarding her claims for child support. I invited counsel to agree on costs and, if that proved impossible, I ordered written submissions to be filed within 20 days. I have now had the opportunity to review those submissions.
[2] The applicant seeks her costs on a full indemnity basis, in the amount of $45,525.36, or alternatively, on a partial indemnity basis, in the amount of $34,473.96. The defendant asks that the circumstances of this case are such that there should be no order for costs.
[3] Rule 24 of the Family Law Rules creates a presumption that a successful party is entitled to his or her costs, except in certain specific cases. Rule 24 (11) sets out the factors the court is to consider in determining an appropriate cost award.
[4] In my view although the applicant did not receive as much as she claimed, she was still successful. It is important to remember that the respondent took a very aggressive approach at trial, denying any further obligation or any recognition that his daughter was still a child of the marriage. After considering those factors set out in Rule 24 along with the provisions of section 131 (1) of the Courts of Justice Act, I am satisfied that the applicant is entitled to some costs of the trial.
[5] The respondent’s position has some merit in that the court did determine that an inordinate amount of time was spent by the applicant concerning the respondent’s income. At the same time, the respondent did nothing to assist, and clearly underestimated his income for child support purposes. It is also of note that the applicant did not at any time serve the respondent with an Offer to Settle. In these circumstances, any award will be on a partial indemnity basis.
[6] As always, in fixing costs, the court must determine an amount that is fair and reasonable for the unsuccessful party to pay. (See Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.))
[7] Here the respondent in submissions acknowledges that he spent “over $50,000” in legal fees. At trial, he explained how he took extra money from his corporation to pay his legal bill. The respondent is well aware of the cost of litigation.
[8] After considering all the circumstances of this case, and those factors set out in Rule 24, the respondent shall pay the applicant her costs of the trial fixed in the amount of $20,000 inclusive of HST and disbursements, to be paid within six months of today’s date.
Walters J.
Released: January 18, 2013
SIMCOE COURT FILE NO.: 3773/96
DATE: 2013/01/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LESLEY JANE VANSICKLE (aka Jane Elms)
Applicant
- and -
BRIAN AUSTIN VANSICKLE
Respondent
COSTS ENDORSEMENT
Walters J.
Released: January 18, 2013