COURT OF APPEAL FOR ONTARIO
Feldman, Sharpe and Epstein JJ.A.
BETWEEN
Aneesa Nadia Zamaludeen Ruffudeen-Coutts
Appellant (Moving Party)
and
Conrad Michael Coutts
Respondent (Responding Party)
Susan A. Metzler, for the appellant
Jodi L. Feldman, for the respondent
Heard: November 24, 2011
On appeal from the order of Justice Peter Hambly of the Superior Court of Justice, dated May 31, 2011.
COSTS ENDORSEMENT
1By order dated February 1, 2012, (Feldman J.A., dissenting), we dismissed Ms. Ruffudeen-Coutts’ application for leave to appeal without prejudice to her bringing a motion under Rule 59.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to set aside the order on the ground of facts arising or discovered after the order was made.
2The parties have now made costs submissions.
3Ms. Ruffudeen-Coutts submits that there should be no order as to costs. Mr. Coutts seeks costs on a substantial indemnity basis in the amount of $36,621.00.
4Under Rule 24 of the Family Law Rules, O. Reg. 114/99, the successful party is presumptively entitled to costs: Biant v. Sagoo, 2001 28137 (ON SC), 20 R.F.L. (5th) 284 (Ont. S.C.), at paras. 15-16. While Rule 24 has circumscribed the court’s discretion to award costs, there remains a discretion to make no-costs awards: see Murray v. Murray (2005), 2005 46626 (ON CA), 79 O.R. (3d) 147 (C.A.).
5In our view, the circumstances of this case warrant a departure from the presumption set out in Rule 24.
6Both parties are successful professionals. While any order as to costs imposes a burden, financial hardship is not a factor here. Neither party behaved unreasonably. The circumstances surrounding the order under appeal were extraordinary and not the making of either of the parties. The custody of a child was at issue. The issues presented to us were procedural and unusually complex and the disposition of this court could not and did not dispose of the substance of the dispute between the parties.
7This is one of those cases in which it is appropriate to make no order as to costs of the appeal.
“Robert P. Sharpe J.A.”
“G.J. Epstein J.A.”
