Court File and Parties

CITATION: Dwyer v. Lewis, 2014 ONSC 6476

DIVISIONAL COURT FILE NO.: 312/14

COURT FILE NO.: FS1200-375956-0000

DATE: 20141107

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: YVONNE DWYER Applicant/Respondent on the motion for leave to appeal

AND:

KEVIN LEWIS Respondent/Applicant on the motion for leave to appeal

BEFORE: H. Sachs J.

COUNSEL: Martine Ordon, for the Applicant/Respondent on the motion for leave to appeal Nancy Iadeluca, for the Respondent/Applicant on the motion for leave to appeal

HEARD: In writing

ENDORSEMENT

[1] Mr. Lewis sought leave to appeal two interlocutory orders of Backhouse J. I denied his motion and ordered the parties to provide submissions in writing to me on the question of costs. I have now received and reviewed those submissions.

[2] Ms. Dwyer, as the successful party, sought her partial indemnity costs, fixed in the amount of $9,280.13, inclusive of HST. Mr. Lewis submitted that the costs awarded should be fixed at the amount of $6,500.00, all inclusive, and that those costs should be made payable in any event of the cause at the end of litigation, rather than on a forthwith basis. He seeks such an order on the basis of an argument that he is insolvent and cannot comply with Backhouse J.’s order, let alone another costs order.

[3] On the issue of the quantum of costs, I agree that the amount requested by Ms. Dwyer is somewhat high, given the complexity of the motion before me, which took approximately two hours to dispose of. In my view, a more appropriate amount to award for costs is $7,500.00, all inclusive.

[4] I do not agree that the payment of costs should be deferred as Mr. Lewis has requested. He chose to bring the motion for leave to appeal. In doing so, he should have known that the threshold for granting such a motion in a family law case is a high one and that if he lost his motion, he would be liable for costs. One of the purposes of the requirement that costs be payable as the litigation proceeds rather than at the end of the litigation is to discourage unnecessary motions. In this case, that purpose is an important one to reinforce.

[5] For these reasons, I am ordering that Mr. Lewis pay to Ms. Dwyer her costs of the motion for leave to appeal fixed in the amount of $7,500, all inclusive, and payable within 30 days of the date of this endorsement.

H. SACHS J.

Date: 20141107