J. Irwin

Following an unsuccessful motion for leave to appeal and the abandonment of an urgent access motion, the parties disputed costs.

The father sought costs for both the leave motion and the abandoned emergency access motion on a partial indemnity basis.

The court held that although the leave motion was not unreasonable, the father was required to prepare for and respond to both proceedings and effectively prevailed.

Considering the circumstances and cost consequences of unsuccessful motions in family litigation, the court fixed costs in a reduced lump sum amount inclusive of disbursements and HST.

The respondent mother sought leave to appeal a motions judge's decision refusing to set aside previous interim family law orders.

The mother argued the previous orders were a nullity because her right to a bilingual proceeding had been breached.

The Divisional Court denied leave to appeal, finding no good reason to doubt the correctness of the motions judge's decision, as the mother had not been denied her language rights but had failed to pursue them procedurally.

The court also found the proposed appeal did not involve matters of such importance to warrant leave, as the case turned on factual findings rather than substantive language rights.

The appellant wife appealed an order regarding a default divorce judgment.

The Court of Appeal found the motions judge erred in concluding the appellant could seek originating corollary relief despite a final divorce judgment addressing those issues.

The Court applied the three-part test for setting aside the noting of pleadings closed, finding the motion was timely, the appellant had a persistent intention to defend, and there was merit to her claims.

The appeal was allowed, setting aside the noting of pleadings closed and specific paragraphs of the default divorce judgment.