COURT FILE NO.: FC-09-2171-2
DATE: 2022/12/21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Timothy Ray Covell, Applicant
AND:
Diane Theresa Covell, Respondent
BEFORE: Justice Ian Carter
COUNSEL: Julie Gravelle, for the Applicant
Rodney Cross, for the Respondent
HEARD: In Writing
ENDORSEMENT
[1] On November 1, 2022, I released a decision holding that the Applicant’s application be stayed pending payment of the sum of $18,092.11 net of tax an obtaining leave of the Court. I indicated that if the parties were unable to agree on either reductions as a result of tax implications or the liability and/or quantum of costs, written submissions could be provided to me. The parties have agreed upon the amount the Applicant owes to lift the stay, which is $13,940.71. However, the parties do not agree on the form of the order or on the cost issues.
[2] With respect to the form of the order, the parties can arrange for a brief virtual conference before me to discuss the matter further.
[3] My reasons for decision on the costs are as follows.
[4] The Respondent sought a stay of the Applicant’s application on the basis of non-compliance of previous court orders. The Respondent was successful in that regard and is presumptively entitled to costs (Rule 24(1)). That said, success was divided to a degree. The Applicant sought an amount to lift the stay of $47,010.11 based on a failure to follow two aspects of Justice Kershman’s Order of March 14, 2014 (“the Kershman Order”). I concluded that only one aspect of the Order was not complied with. Given that success was divided, I will apportion costs as appropriate (Rule 24(6)). To be clear, I found that an order for security of costs was unnecessary at this time in light of the stay. I do not consider the Applicant to have been successful on that issue.
[5] As to quantum, I have been provided with a bill of costs in the amount of $12,102.30. Although I find the work spent to be reasonable (Rule 24(12)(i) and (iv)), as previously noted success was divided. On the one hand, much of the focus on the motion was on the issue of whether the costs aspect of the Kershman Order had been complied with, an issue on which the Applicant was successful. On the other hand, it was obvious that the Applicant had not complied with a substantial portion of the Kershman Order as it related to the withdrawal of funds from the RRSP. Despite providing no justification for this failure to comply, the Applicant asked the Court not to impose a stay. It is of note that the Applicant at no time indicated that he intended to comply with that portion of the Kershman Order. The failure to comply has been ongoing since 2014. The Respondent’s motion for a stay was therefore necessary.
[6] The Applicant will pay to the Respondent her costs in the amount of $4,500. The order relates to the payment of support and, as a result, will be enforceable by FRO.
Carter J.
Date: December 21, 2022
Released: December 21, 2022
COURT FILE NO.: FC-09-2171-2
DATE: 2022/12/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RE: Timothy Ray Covell, Applicant
AND:
Diane Theresa Covell, Respondent
BEFORE: Justice Ian Carter
COUNSEL: Julie Gravell, for the Applicant
Rodney Cross, for the Respondent
COSTS ENDORSEMENT
Carter J.