Court File and Parties

Citation: Ellis v. Wentzell-Ellis, 2010 ONCA 446 Date: 2010-06-16 Docket: C51392 Court of Appeal for Ontario

Before: Goudge, MacFarland and LaForme JJ.A.

Between: Jason Alexander Ellis (Appellant) and Laura Wentzell-Ellis (Respondent)

Counsel: Philip M. Epstein Q.C. and Lily Ng, for the appellant Ian R. Mang, for the respondent

Heard: April 1, 2010

Costs Endorsement

[1] On May 13, 2010 the judgment in this matter was released by this court. The appeal involved the application of the Hague Convention on the Civil Aspects of International Child Abduction, 1980, C.T.S. 1983/35; 19 I.L.M. 1501. The appeal was allowed and the child was ordered returned to England forthwith so that the English courts can assume jurisdiction. Costs of the appeal were reserved to allow the parties to file written submissions. The submissions have been filed and reviewed.

[2] In his submissions the appellant father seeks costs of the appeal in the amount of $15,000 on a partial indemnity scale inclusive of disbursements and GST. In addition, he requests that this court fix costs for the hearing before the application judge. Again, he asks that such costs be on a partial indemnity scale and fixed in the all inclusive amount of $15,000.

[3] The respondent mother submits that we award no costs of the appeal or, if we do, such costs to be in the all inclusive amount of $5,000. She makes no submissions in connection with the application hearing.

[4] The application judge did not determine the issue of costs and this court has no knowledge as to the circumstances surrounding that. Nevertheless, in order to bring finality to these proceedings we will decide that issue.

[5] The issue in this appeal is a serious one that often times demands the deterrence feature that can result from the awarding of costs. At the same time - particularly in this case - a costs award must also consider the relative situations of the parties. Having regard to this, and after consideration of the submissions, we conclude that in all the circumstances the appellant father is entitled to costs of both the appeal and the application proceedings. Such costs shall be on a partial indemnity scale in the aggregate amount of $5,000 inclusive of disbursements and GST.

"Stephen Goudge J.A."

"J. MacFarland J.A."

"H. S. LaForme J.A."