Court File and Parties

COURT FILE NO.: 00-FL-380-05 DATE: 2016/05/03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nicole Van Westerop, Applicant AND William G. Van Westerop, Respondent

BEFORE: Madam Justice Mackinnon

COUNSEL: Anne Marie Roodal, for the Applicant Thomas R. Hunter, for the Respondent

HEARD: By written submissions

Costs Endorsement

[1] Ms. Van Westerop is seeking $1,010 in costs as the successful party to a motion brought by Mr. Van Westerop.

[2] His position is that there should be no order of costs because of his inability to pay. His monthly income is $1,166, and he is already subject to paying $250 per month towards an outstanding costs award. The ability of the unsuccessful party to pay is a factor a court may consider in its discretion.

[3] Additionally Mr. Van Westerop submits that Ms. Van Westerop is represented by a staff lawyer at ILSO and there is no evidence that she is required to make any payment towards her legal services. Normally the amount of costs is determined without regard to whether or not a client is legally aided.

[4] That said, Ms. Van Westerop appears to be claiming costs calculated by reference to all of the time spent by her counsel, at an hourly rate appropriate to her counsel’s years of service. Despite the fact that the amount claimed for costs does not appear excessive on its face, complete recovery costs are not awarded as a matter of course. The general award is for partial recovery costs.

[5] I also take note of the fact that on the first return date of this motion Mr. Van Westerop had not complied with the order I had made the previous January requiring him to collapse his RRSP and to apply the net proceeds towards the outstanding cost order. This has now been rectified, but, in my view, his delay in compliance attracts sanction, irrespective of his ability to afford additional costs.

[6] For these reasons I do award partial costs to Ms. Van Westerop, fixed at $600, to be added to the existing outstanding costs. The result will be that Mr. Van Westerop will have to make additional monthly payments to satisfy this obligation, and will not be permitted to bring his motion to change until all of the costs have been paid in full.

Madam Justice J. Mackinnon Date: May 3, 2016