C.M.M. v. D.G.C. v. J.M., 2015 ONSC 435

CITATION: C.M.M. v. D.G.C. v. J.M., 2015 ONSC 435

DIVISIONAL COURT FILE NO.: 57/14

DATE: 20150121

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: C.M.M., Applicant

AND: D.G.C., Respondent

AND: J.M., Respondent

BEFORE: Harvison Young J.

COUNSEL: Jeffery Wilson, for the Applicant

Harold Niman, Daryl Gelgoot, Vanessa Amyot, for the Respondent, D.G.C.

HEARD at Toronto: April 1, 2014

COSTS ENDORSEMENT

[1] The Applicant, C.C.M. and the Respondent D.G.C. have filed costs submissions with respect to a leave to appeal application which I heard on April 1, 2014; see reasons dated April 15, 2014: C.M.M. v. D.G.C, 2014 ONSC 2356 l 4, 2. Each party asserts the right to costs on the basis of Rule 24(1) of the Family Law Rules which provides that a successful party is presumptively entitled to their costs. As each party submits, the determination of the successful part Rule 24(11) of the Family Law Rules set out the other factors to be considered

[2] The leave to appeal application in issue sought leave to appeal six discrete orders of Justice Darla Wilson made on January 24, 2014 that:

a. initialized the names of the parties;

b. restrained C.M.M. from communicating with D.C.’s family;

c. required C.M.M. to appoint a Litigation Guardian;

d. dismissed C.M.M.’s motion for interim disbursements;

e. dismissed C.M.M.’s motion for interim child support; and

f. dismissed C.M.M.’s motion to strike portions of the Respondent, D.C.’s answer and affidavits.

[3] I granted leave to appeal the order requiring C.M.M. to appoint a Litigation Guardian. I dismissed the application for leave to appeal the other orders. Rule 24(11) sets out the following factors to be considered in determining costs in addition to the success of the parties:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter. O. Reg. 114/99, r. 24 (11).

[4] The Applicant seeks costs on a partial indemnity basis in the amount of $15,000 on the basis that, while it may appear that success was divided in terms of the number of grounds, this should not be a determining factor. Rather, where there are multiple issues before the court, the court should have regard to the “dominant” issue which in this case was the issue relating to the appointment of a Litigation Guardian with respect to which the Applicant was successful: Firth v. Allerton [2013] O.J. No. 3992 S.C.J. at para. 20.

[5] The Respondent asserts that he was the successful party on the motion, given that he was successful on all the issues except for the Litigation Guardian issue. He acknowledges that there should be an appropriate apportionment of costs, given the Applicant’s success on that issue, but also submits that given the nature of the Litigation Guardian issue and the fact that its merits were left to the panel, no costs should be awarded with respect to his aspect of the appeal. He seeks $10,000 as “an appropriate amount” to order the Applicant to pay.

[6] In my view, this is a case in which success was divided and thus no costs should be payable by either party. While I do agree that the Litigation Guardian issue was the most important, significant and novel issue, each of the six issues was vigorously argued before me by both parties, and the other five issues comprised a considerable amount of the argument and materials on the leave application.

[7] Accordingly, no costs order will issue.

Harvison Young J.

Date: January 21, 2015