CITATION: Lemieux v. Lemieux, 2017 ONSC 2217
COURT FILE NO.: D-21,615/16
DATE: 2017-04-11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alain Lemieux
Applicant
– and –
Amanda Lemieux
Respondent
Krista J. Fortier, for the Applicant
Matti E. Mottonen, for the Respondent
HEARD: April 7, 2017
RULING ON COSTS
GAUTHIER, J.
[1] On January 19, 2017, I made a temporary order granting the respondent (“Mother”) sole custody of the children. The applicant (“Father”) was granted access. The order further provided for child support, among other relief.
[2] Essentially, the Mother was successful on virtually all heads of relief sought in her motion.
[3] I must now deal with the issue of costs.
[4] A review of the court file discloses that the Father filed a notice of change of representation, on January 25, 2017, indicating that he would henceforth represent himself. He had counsel on January 12, 2017, when the motion was argued.
[5] The Father was given notice of the April 7, 2017, date which was set for hearing of the issue of costs. On that date, court was convened at 2:00 p.m. The Father’s name was called in the public area of the courthouse, with no response. I stood the matter down until 2:30 pm. to allow time for the Father to appear. He did not do so and, accordingly, I received Mr. Mottonen’s submissions on costs on behalf of the Mother, together with counsel’s bill of costs.
[6] The bill of costs outlines the services rendered to the Mother in relation to the motion which resulted in the temporary order of January 19, 2017. The claim is for the sum of $7,973.28 consisting of fees in the amount of $7,056, HST on fees, in the amount of $917.28. This represents full indemnity costs.
[7] The Mother’s position is that she is entitled to full indemnity costs for the following reasons:
a. She was entirely successful on the motion;
b. Conversely, the Father was almost entirely unsuccessful;
c. The Father’s position was unreasonable and completely unsupported by the evidence, including some of the evidence led on his behalf;
d. The Father’s conduct was not only unreasonable, but abusive and uncooperative.
[8] As the Father chose not to appear on the costs hearing, I received no submissions on his behalf opposing costs, or resisting a full indemnity costs order.
[9] It is correct to conclude that the Mother was almost totally successful on her motion. I granted some additional access to the Father, over that access that had been suggested by the Mother, however, it was conditional and depended on the Father’s work schedule. Otherwise, the Order reflects the claims advanced by the Mother.
[10] The Father’s position that he should be awarded primary residence of the children, or alternatively, joint and shared custody of the children was not reasonable on the evidence. There was ample, unrefuted evidence that the Mother had been the primary parent to the two children from their birth until the parties’ separation. None of the evidence, including that evidence led on behalf of the Father, suggested that, until separation, the Father had been a primary or even an equal contributor to the children’s care.
[11] The evidence as a whole, including the Father’s evidence failed to establish that he was able to parent the children on a joint and shared basis.
[12] Without such evidence, there was no basis on which to award joint and shared custody and parenting, as claimed by the Father.
[13] In addition to his position on the motion being unreasonable, his conduct toward the Mother can only be characterized as uncivil, disrespectful, and abusive. The Father’s failure to be forthcoming about his work schedule and his living arrangements is bad conduct in the conduct of the litigation and should attract costs sanctions.
[14] Although the Father’s conduct is not “bad faith” conduct which automatically triggers full recovery costs (Rule 24(8)), it nonetheless should attract more than partial indemnity costs.
[15] In family law litigation, it is not necessary for the court to find “special circumstances” to order costs approaching substantial indemnity. Sordi v. Sordi, 2011 ONCA 665, [2011] O.J. No. 4681, 2011 ONCA (Ont. C.A.)
[16] Although the facts must meet a high threshold for full indemnity costs to be awarded, and I find that the facts here do not meet that high threshold (conduct designed to delay or confuse proceedings, conduct that is contemptuous, or conduct that is a “scurrilous attack on the administration of justice”. (See Envoy Relocation Services Inc. v. Canada (Attorney General), 2013 ONSC 2622), the facts of this case justify a substantial indemnity award.
[17] The unreasonableness of the position and the conduct justify such award.
[18] Accordingly, I order that the Father (applicant) pay to the Mother (respondent) costs in the amount of $6,500, plus HST. No disbursements were claimed.
The Honourable Madam Justice Louise L. Gauthier
Released: April 11, 2017
CITATION: Lemieux v. Lemieux, 2017 ONSC 2217
COURT FILE NO.: D-21,615/16
DATE: 2017-04-11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alain Lemieux
Applicant
– and –
Amanda Lemieux
Respondent
RULING ON COSTS
Gauthier J.
Released: April 11, 2017