DATE: 20030124

DOCKET: C36134

COURT OF APPEAL FOR ONTARIO

RE: NANCY ALICE VOCE (Appellant) (Applicant) –and– PETER MYLES GIBSON (Respondent) (Respondent)

BEFORE: CARTHY, LASKIN and MacPHERSON JJ.A.

COUNSEL: Jeanie M. DeMarco, for the appellant

Patrick D. Schmidt and George Karahotzitis, for the respondent

HEARD: January 9, 2003

RELEASED ORALLY: January 9, 2003

On appeal from the judgment of Justice Bonnie J. Wein of the Superior Court of Justice dated March 5, 2001.

E N D O R S E M E N T

[1] Although the appellant raises several issues on appeal, the only substantive issue is the costs ordered by the trial judge. In our view, leave should be granted to appeal costs.

[2] The trial judge’s costs order consisted of two components: the costs ordered by O’Connor J. and the costs of the proceedings before her. As to the former, we think she erred in principle in upholding O’Connor J.’s costs order. That order was implicitly set aside on February 6, 2001, when O’Connor J. set aside his original November 1, 2000 endorsement. Moreover, each party should bear its own costs of the proceedings before O’Connor J. as each was wrong on the jurisdiction question that regrettably infected this entire proceeding.

[1] As to the costs of the proceedings before Wein J., we see two problems with her order. First, having rejected solicitor and client costs, the amount she ordered, $12,000, was substantially in excess of party and party costs. Second, her costs order in part reflected her view that the respondent succeeded on the jurisdiction question and, again, we are of the view that each party should bear its own costs on that question.

[2] That said, we think there is merit in the trial judge’s view that some effect be given to Mr. Schmidt’s reasonable proposal in his letter of September 27, 2000. Custody was the main issue at trial, and in that letter, the respondent proposed a continuation of the existing custody arrangement with the hope that related issues could be worked out. Instead of trying to work out these issues the appellant chose to litigate, continuing to assert her claim for sole custody, which she resiled from only at trial.

[3] An important objective of a costs award in any proceeding, including family law proceedings, is to encourage parties to resolve their differences by reasonable settlement proposals. The respondent did so in this case; the appellant did not. Viewed in this light, we think the respondent is entitled to some costs of the proceedings before Wein J. A fair figure is $4,000, inclusive of disbursements and G.S.T.

[4] The other grounds of appeal advanced by the appellant are either moot or without merit.

[5] Accordingly, leave to appeal costs is granted and the judgment of Wein J. is varied by striking out paragraph 11 and substituting the figure $4,000 in paragraph 13. The appeal is otherwise dismissed. Because success was divided there shall be no costs of the appeal.

Signed: “J.J.Carthy J.A.”

“John Laskin J.A.”

“J.C.MacPherson J.A.”