Court File and Parties
Court File No.: FC-16-803-0 Date: 2017/05/16 Superior Court of Justice - Ontario
Re: Stephane Vincent Lupien, Applicant And Angela Faye Carmichael, Respondent
Before: M. Linhares de Sousa J.
Counsel: Mr. A. Merizzi, counsel for the Applicant Ms. N. Pappin, counsel for the Respondent
Heard: By Written Submissions
Decision on Costs
[1]
Background
I have now had the opportunity of considering the parties’ written submissions on costs. This matter involved a motion and cross motion dealing with the principal issues of custody and access, child support, some sundry property issues and the issue of a restraining order. For the reasons given in my decision, I did not deal with the property issues nor with the issue of retroactive child support which I concluded would be best left to the pending trial.
2Pursuant to Rule 24(1) of the Family Law Rules, O. Reg. 114/99 (the “Family Law Rules”), the successful party is presumed entitled to costs unless there is a reason not to award such costs, as for example such a party has behaved unreasonably or in bad faith. No party in this matter has been substantially successful on all of the issues on the motion. Success on the question of custody and access, with respect to timesharing is genuinely divided. Ms. Carmichael, however, was successful on the issue of final decision-making authority pending the trial of the issue.
3With respect to child support ordered on the motion, while Mr. Lupien did not deny that he was obligated to pay some child support for the child McKenzy, he disputed the amount. In fact, he had not paid any child support for the child McKenzy. On this issue, Ms. Carmichael, on an interim basis, was totally successful.
4Ms. Carmichael was also completely successful on the issue of the restraining order.
5Neither party filed formal offers to settle the issues on this motion. Consequently, neither party can benefit from the operation of Rule 18 of the Family Law Rules.
6I am not prepared to find that on the facts of this case, where there has been allegations of domestic violence and concurrent criminal proceedings, either party acted unreasonably or in bad faith.
7With respect to the Rule 24(11) of the Family Law Rules, cost factors to be considered, in this matter was certainly important to the parties. It did not have a greater public interest importance. Nor was it particularly complex or difficult.
8I have examined the respective bills of cost for the parties’ lawyers. Given the nature of the issues and the litigation and the respective experience of counsel, I cannot find them unreasonable.
9In the case of Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O. R. (3d) (Ont. C. A.), the Ontario Court of Appeal indicated that a costs award should be a “fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs of the successful litigant”. A “fair and reasonable amount” is that amount which the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation.
10In view of Ms. Carmichael’s greater success on the issues before the court, I am persuaded that she should receive some contribution towards her costs. In view of the results at the motion, Mr. Lupien could reasonably have expected to pay those costs.
[11]
Disposition
I therefore fix the costs at $1,500, all in, and order Mr. Lupien to pay those costs to Ms. Carmichael within 30 days of this order.
M. Linhares de Sousa J.
Released: May 16, 2017
