Court File and Parties

CITATION: Potter v. Boston, 2014 ONSC 2523

NEWMARKET COURT FILE NO.: DC-1300000575 ML

DATE: 20140423

ONTARIO

SUPERIOR COURT OF JUSTICE (DIVISIONAL COURT)

BETWEEN:

CINDY POTTER Applicant (Respondent in Appeal)

– and –

WILLIS STEPHEN BOSTON Respondent (Appellant in Appeal)

COUNSEL:

C. Bargman, for the Applicant (Respondent in Appeal)

K. Nathens, for the Respondent (Appellant in Appeal)

HEARD: By written submissions

RULING ON COSTS

HEALEY J.

[1] This endorsement on costs follows the ruling in respect of a motion for leave to appeal brought by the respondent, Mr. Boston, in which he was successful in obtaining leave (Potter v. Boston, 2014 ONSC 2361).

[2] Both parties were required to file submissions on costs prior to the ruling being rendered, so that the court could make a candid assessment of what each party’s reasonable expectation as to costs may have been, in the event that they were successful. I have read and considered both of the parties’ submissions.

[3] Had she successfully opposed the motion, Ms. Potter would have sought costs in the amount of $17,518.87 inclusive of disbursements and HST.

[4] Mr. Boston seeks a final order for costs in the sum of $6,352 inclusive, which is reduced from the total amount in the Bill of Costs of $9,074.22. The rationale for the reduction is that, even if the motion had been unopposed, it would have been necessary to prepare materials and attend to argue in order to obtain leave to appeal.

[5] Ultimately, while Mr. Boston was able to obtain leave, he was unsuccessful in meeting the test for granting a stay of the temporary order, which allows Ms. Potter to enjoy exclusive use of a Florida condominium for one week each month. Accordingly, in assessing the results of the motion, it may be that the apparent success ultimately serves no purpose, if the appeal is unsuccessful. The dismissal of the motion for a stay pending appeal is therefore a factor to be taken into account in assessing the costs.

[6] However, there is a presumption that the successful party is entitled to costs, and far more preparation and argument was focused on the issue of leave, as opposed to the stay. I find that Mr. Boston is therefore the more successful party, and that he should have some costs. Taking into account the various other factors set out in Rule 24(11) of the Family Law Rules, including the principle of indemnity and the reasonable expectation of Ms. Potter with respect to the costs involved, I find that the amount of $5,500 inclusive is a reasonable amount in all of the circumstances of the case.

[7] Accordingly, this court orders that Ms. Potter shall pay costs of the motion for leave to appeal to Mr. Boston fixed in the amount of $5,500 inclusive and payable within 30 days.

HEALEY J.

Released: April 23, 2014