CITATION: Noble v Noble, 2016 ONSC 7409
COURT FILE NO.: FC-15-2013
DATE: 2016/11/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alison Noble
Applicant
– and –
Shannon Noble
Respondent
Mimi Marrello for the Applicant
Jessica Dany Vo for the Respondent
HEARD: In writing
REASONS FOR JUDGMENT
Justice A. Doyle
[1] On October 13, 2016, the Court rendered a temporary order which permitted the Respondent father to have supervised access to Holly, but not to Matthew who is the victim of an alleged assault from his father. Matthew will be testifying in criminal court in December 2016. The Court declined to order the involvement of the Office of the Children’s Lawyer’s Office (OCL). Due to the father’s unemployment, no child support was ordered at this time but the father was obligated to advise the mother of employment applications and/or training. The parties were required to co-operate with the sale of the matrimonial home.
[2] After having considered the parties’ written submissions, Family Law Rules, the jurisprudence, the divided success of the parties, there will be no order as to costs. My reasons are set out below.
Legal principles
[3] The cost rules are designed for the fundamental purposes:
(1) to indemnify successful litigants for the cost of litigation
(2) to promote the encourage promote and encourage settlement, and
(3) to control behaviour by discouraging frivolous suits if the defences that lack merit.
(4) Fong v. Chan 1999 2052 (ON CA), [1999] O.J. No. 4600 and confirmed in Serra v. Serra [2009] ONCA 395.
[4] Rule 24 of the Family Law Rules, O. Reg. 114/99 (the “FLRs”) creates a presumption of cost in favour of the successful party. Rule 18 deals with the cost consequences of failure to accept offer and allows the court the discretion to take into account any written offer to settle. There were no offers to settle.
Analysis
[5] The Court notes that the father was successful as follows:
(i) he obtained supervised access to one of his children;
(ii) due to his unemployment, he was not required to pay child support and no income was imputed to him; and
(iii) he can continue to participate in the sale of the matrimonial home and the mother did not obtain an order that dispensed with his consent.
[6] The Court finds that the mother was successful as follows:
(i) the father was denied access to Matthew;
(ii) the father was required to update the mother regarding employment searches;
(iii) she obtained an order for the sale of the matrimonial home and would be able to return to court if he failed to co-operate, and
(iv) the father’s request for the involvement of the OCL was denied.
[7] In considering the factors set out in Rule 24(11), I have considered the following:
i) the importance complexity and difficulty of the issues:
The matter was not complex but important as it dealt with the children’s well-being.
ii) the reasonableness or unreasonableness of each party’s behaviour in the case.
The mother alleges that, contrary to a previous court order, the father demonstrated bad faith and was not co-operative in the sale of the matrimonial home and that the value decreased. He also failed to contribute financially to the household expenses.
Although this behavior is not acceptable, the Court finds that it does not cross the line to constituting bad faith.
ii) The lawyers’ rates and the time spent on the motion, in light of the various issues and case law were reasonable.
Both parties’ quantum claimed is reasonable.
[8] Therefore, in light of the divided success, there will be no order as to costs.
Justice A. Doyle
Released: November 28, 2016
CITATION: Noble v Noble, 2016 ONSC 7409
COURT FILE NO.: FC-15-2013
DATE: 2016/11/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alison Noble
Applicant
– and –
Shannon Noble
Respondent
REASONS FOR JUDGMENT
Justice A. Doyle
Released: November 28, 2016