CITATION: Whissell v. Foucault, 2026 ONSC 2526
COURT FILE NO.: FS-23-0106-00AP
DATE: 2026-04-28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Paul Whissell
Appellant (Responding Party)
– and –
Crystal Foucault
Respondent (Moving Party)
Réjean Parisé, for the Appellant
Lance Talbot, for the Respondent
HEARD: March 12, 2026
Decision on Motion
R. A. BELLOWS J.
Overview
[1] The motion before me was brought by Crystal Foucault. She was the applicant in the Ontario Court of Justice ("OCJ") family file and is the respondent on the appeal. Paul Whissell is the appellant and responding party on the motion before me.[^1]
[2] Ms. Foucault seeks the dismissal of the appeal with Mr. Whissell's consent; however she brought the motion before me to address costs issues: both on the appeal and at the OCJ level.
[3] The first issue is straightforward – it addresses costs thrown away on Mr. Whissell's appeal, which was never perfected but nevertheless resulted in costs. I will come back to this relief.
[4] The second issue is more nuanced. Justice Lefebvre presided over the trial and released her decision on September 19, 2023. The decision resulted in an order dated September 20, 2024 (the "Final Order").[^2] The Final Order addresses costs, at para. 14, as follows:
If either party seeks costs, they shall submit a Bill of Costs with written submissions, a maximum of 3 pages in length within 30 days of September 20, 2023. A response shall be submitted 15 days after receipt of the request for costs.
[5] Mr. Whissell filed his Notice of Appeal on October 17, 2023. As a result of the appeal being filed, neither party made written cost submissions in accordance with the Final Order. No direction was sought from the trial judge on this issue.
[6] Despite this, it appears from correspondence between counsel that the issue of costs was still live in their minds. In June 2024, Ms. Foucault made a settlement offer that included all costs, including the OCJ. Mr. Whissell accepted this offer; however, it was never formalized into an order or minutes of settlement.
[7] Ms. Foucault now seeks an order that would alter the Final Order by extending the costs submission timeline.
[8] Mr. Whissell argues that the offer to settle, being accepted on June 27, 2024, is a complete answer to this motion, save for the order dismissing the appeal on consent. Mr. Whissell is still willing to honour that agreement on costs, however, he argues that I have no authority to set aside the cost directions of the trial judge.
[9] For the reasons that follow, I find that I do not have jurisdiction to amend the trial judge's Final Order on a motion.
Law and Argument – Varying an OCJ Order
[10] Ms. Foucault relies on r. 63.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 ("RCP"), which applies pursuant to r. 38(1) of the Family Law Rules, O. Reg. 114/99 ("FLR"), for the premise that once the Notice of Appeal was filed, the enforcement of the trial judgment was automatically stayed. As a result, she argues that "the appellate stay rendered any immediate assessment of costs premature and practically inoperative."[^3] On that basis, Ms. Foucault deferred seeking costs until the trial judge's decision was affirmed.
[11] Rule 3(5) of the FLR permits the court to "make an order to lengthen or shorten any time set out in [the FLR] or an order." Ms. Foucault relies on this, in part, as my authority to make an order, changing the trial judge's order.
[12] Ms. Foucault further relies on FLR r. 24(1) and 24(2):
24.(1) Promptly after dealing with a step in a case, the court shall, in a summary manner,
(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or
(b) expressly reserve the decision on costs for determination at a later step in the case.
24.(2) The failure of the court to act under subrule (1) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later step in the case.
[13] Finally, Ms. Foucault relies on rr. 2(2) through 2(4) as they provide the court with flexibility to deal with cases justly. She submits that "it was prudent and reasonable for [her] to wait to deal with the issues of costs until the appeal had been dealt with."[^4]
[14] The challenge Ms. Foucault faces in her request before me is that she is not appealing a costs award; nor is she appealing the trial judge's Final Order as it relates to the timeline for costs submissions. Instead, she has brought a motion to dismiss the appeal and asks that I amend the Final Order.
[15] The trial judge may exercise discretion under r. 3(5) of the FLR to vary the timeline imposed by her Final Order.
[16] If I were asked to consider a costs award on consent by the parties as a result of the dismissal of the appeal that included costs of the OCJ trial, r. 24(2) would apply, and such an order could be made. However, that is not the case here.
[17] Moreover, although r. 63.01 of the RCP stays the payment of money except for those that provide for support, it does not preclude the court from receiving costs submissions or setting costs. The trial judge was in the best position in October 2023 to consider costs submissions. Such an order may also have been the subject of an appeal. However, that is not the case here either.
[18] On the Superior Court's jurisdiction to vary an order of the OCJ, Justice Kruzick's Endorsement in Doherty-Mulder v. Mrowietz, 2003 5374 (Ont. S.C.) is clear and succinct, at para. 10:
Where an Order is made in the Ontario court, that court has the jurisdiction to vary its own orders. As provided in s. 40(1) of the Courts of Justice Act, R.S.O. 1990 C.C. 43, this court has jurisdiction to hear an appeal from an Order of the Ontario court. This application is not an appeal. [Emphasis added.]
[19] For these reasons, the motion to vary Justice Lefebvre's decision is dismissed without prejudice to renewal before the OCJ, where I believe it properly belongs.
Costs of Appeal
[20] Mr. Whissell filed his Notice of Appeal on October 17, 2023. It appears that his sole purpose in doing so was to buy time to address concerns that he felt required clarification in the Final Order.
[21] Over the next two years or so, Ms. Foucault was required to continue retaining counsel, take steps to resolve the concerns, and have funds flow properly in accordance with the Final Order.
[22] During this time, Mr. Whissell took no steps to perfect the appeal and seemingly never intended to do so. This results in costs thrown away by Ms. Foucault and a lack of finality in the matter.
[23] Ms. Foucault's affidavit sets out her frustrations and financial hardship resulting from the outstanding appeal.
[24] Ms. Foucault's counsel inquired in June and November 2024 about having the appeal dismissed, in December 2025, with no response, she filed this motion for dismissal pursuant to r. 38(30) of the FLR. Since that time, Mr. Whissell has consented to the dismissal, but opposes any costs award on the appeal, given that the appeal did not proceed. In the alternative, he submits that costs should be minimal.
[25] Ms. Foucault seeks $3,000 in costs on the appeal. This is a reasonable request in the circumstances.
[26] The motion to dismiss the appeal shall be granted on consent, and the appellant, Paul Whissell, shall pay costs to the respondent, Crystal Foucault, in the amount of $3,000, inclusive of all disbursements and taxes, within 30 days of this decision.
The Honourable Justice R.A. Bellows
Released: April 28, 2026
CITATION: Whissell v. Foucault, 2026 ONSC 2526
COURT FILE NO.: FS-23-0106-00AP
DATE: 2026-04-28
ONTARIO
SUPERIOR COURT OF JUSTICE
Paul Whissell
Appellant (Responding Party)
– and –
Crystal Foucault
Respondent (Moving Party)
DECISION ON MOTION
Bellows J.
Released: April 28, 2026
[^1]: For clarity, I will refer to the parties and the submissions of counsel on their behalf by name ("Ms. Foucault" and "Mr. Whissell") throughout. Counsel made all submissions on behalf of the parties. [^2]: Exhibit A to Crystal Foucault's Affidavit of December 22, 2025. [^3]: See Whissell v. Foucault, FS-23-00000106-00AP (Foucault Factum, at para. 7). [^4]: See Whissell v. Foucault, FS-23-00000106-00AP (Foucault Factum, at para. 16).