Court File and Parties

COURT FILE NO.: 08/395 DATE: 20081223 SUPERIOR COURT OF JUSTICE - ONTARIO (DIVISIONAL COURT)

RE: L.K. (Applicant/Responding Party) - and - C.L. (Respondent/Moving Party)

BEFORE: Justice Gans

COUNSEL: Alex Finlayson, for the Applicant, C.L. Jeff Rechtshaffen, for the Respondent, L.K.

HEARD AT TORONTO: Written Submissions received

C O S T S E N D O R S E M E N T

GANS J.

[1] Counsel have provided me with their submissions in respect of L.K.’s request for costs incurred in successfully defending C.L.’s application for leave to appeal. Given the antipathy that has dominated the ongoing legal battle between them, it is little wonder that the litigants have not been able to resolve even a request for costs without the court’s assistance.

[2] I do not intend to review the parties’ respective submissions, which left me to speculate on what has actually transpired between the parties and their lawyers in the time leading up to the motion itself.

[3] In my view, and in the absence of properly filed evidence, I see no reason why a “standard” costs order should not follow the result. While the Applicant admittedly met the first part of the test for leave, this does not mean that she achieved divided success on the application itself, as Mr. Finlayson argued.

[4] Furthermore, absent evidence to the contrary, there is nothing in the record before me which would permit me to conclude that the concessions exacted from the Respondent during argument and the trials of issues now defined formed part of discussions or offers by counsel before the return of the application.

[5] Finally, I am not persuaded in the circumstances that there is an overarching reason for costs to be deferred and awarded in the cause. Indeed, if the Applicant is not forced to the realization that every motion she launches has a relatively immediate costs sanction, then there will be little incentive for her to come to some form of negotiated resolution.

[6] In my view, having regard to the time recorded by counsel on both sides of the aisle, and the authority provided me under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, I am of the view that $3,500 for fees plus GST and the disbursements described in Mr. Rechtshaffen’s submissions is appropriate in the circumstances. This sum shall be payable within 30 days from the date of this endorsement.

GANS J.

DATE: December 23, 2008