Court File and Parties
COURT FILE NO.: FC-22-47 DATE: April 6, 2023 SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN: Lisa Denise Roseanna Joudrey v. Darrell John Joudrey
BEFORE: Justice M. S. James
COUNSEL: Self-represented Applicant Rod Vanier, Counsel for the Respondent
DATE HEARD: In writing
Costs Endorsement
[1] This is a costs endorsement following a successful motion by the respondent to have the application dismissed (the “jurisdictional motion”).
[2] This endorsement also addresses the costs of an unsuccessful contempt of court motion (the “contempt motion”) brought by the applicant where the motion judge deferred the costs issue arising from the alleged contempt of court to the judge hearing the respondent’s motion to dismiss the application.
[3] The jurisdictional motion was set for two hours. Factums were submitted. The core issue was whether the Ontario Superior Court of Justice has the power to set aside a final family court order made in New Brunswick.
[4] The respondent claims partial indemnity costs of $7500.00 based on a total amount of $11,371.19. A costs outline was provided without supplying the time dockets detailing the actual time spent on different aspects of the case.
[5] The respondent failed to clearly identify the statutory basis for the jurisdictional motion which in essence appeared to be a motion for summary judgment dismissing the application. To succeed on a motion for summary judgment, the moving party has the onus of establishing that there is no genuine issue requiring a trial.
[6] The applicant advanced numerous allegations of fraud and the lack of disclosure by the respondent prior to the issuance of the final order in New Brunswick. One of the applicant’s challenges was that it is very difficult to “undo” a final order when there has been no appeal of the order complained of.
[7] In her request to this court, the applicant did not seek to have the New Brunswick order varied due to the changed circumstances. Her focus was solely to have the New Brunswick order “set aside” due to fraud and non-disclosure, a request that I found I did not have the power to grant.
[8] The applicant’s entitlement to spousal support following a long-term relationship was a live issue in the New Brunswick proceeding. She says that her decision to forego a claim for spousal support was premised on the respondent’s representations that he intended to retire.
[9] A central issue that prompted the applicant to launch an application in Ontario was the respondent’s unexpected decision to continue to serve in the Canadian Armed Forces (“CAF”) instead.
[10] Awarding costs involves the exercise of judicial discretion. The relevant factors to be considered are summarized in Rule 24 of the Family Court Rules.
[11] A successful party is presumptively entitled to a reasonable allowance for his or her legal costs. In this case the respondent was clearly the successful party.
[12] The issues were moderately complex.
[13] The determination of what constitutes a reasonable allowance for costs is not simply an arithmetical tally of a lawyer’s hourly rate multiplied by the time spent on a case. It involves a consideration of many factors, including what a party would reasonably expect to pay in legal costs to the other side if the result went against them.
[14] Regarding the contempt motion, the applicant moved quickly for an order of contempt of court when the respondent failed to meet the required timelines. The motion was not personally served on the respondent, which is a requirement unless the parties specifically agree otherwise. Contempt motions should be rarely invoked and are a remedy of last resort. A motion for contempt of court was not appropriate in the circumstances present here and there ought to be some allowance for the respondent’s costs in responding to the motion.
[15] In all the circumstances I conclude that a reasonable allowance for costs payable by the applicant to the respondent, for both motions, is $3000.00, inclusive of HST, payable forthwith.
Justice M. S. James Date released: April 6, 2023