DATE: 20040116

DOCKET: C38353

COURT OF APPEAL FOR ONTARIO

RE: GERTRUDE PIRNER-MOSER (Applicant (Appellant)) – and – DIANE MARION PIRNER (Respondent (Respondent)) – and – THOMAS PIRNER (Respondent (Respondent))

BEFORE: ROSENBERG, MacPHERSON and SHARPE JJ.A.

COUNSEL: D. Smith

for the appellant

John Legge

for the respondent Diane Marion Pirner

Milton J. Bernstein

for the respondent Thomas Pirner

HEARD: November 19, 2003

JUDGMENT

RELEASED: November 24, 2003

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

[1] All of the parties to this appeal, including the respondent Diane Marion Pirner, seek their costs on the appeal. The appellant Gertrude Pirner-Moser was successful on the appeal on the basis that the application judge had no jurisdiction to make the order that the appellant convey the cottage property to Diane Pirner. The fact remains, however, that the respondent Thomas Pirner has been in arrears on his payments of child support for some considerable period of time. This litigation was part of Diane Pirner’s attempt to secure those arrears for the benefit of the children. Be that as it may, we can see no basis for an order that Thomas Pirner pay Diane Pirner’s costs of this appeal. The dispute was between Gertrude Pirner-Moser and Diane Moser. The involvement of Thomas Pirner did not increase Diane Pirner’s costs of responding to the appeal. On the other hand, it would be wholly inequitable to require Diane Pirner to pay Thomas Pirner’s costs, given the history of this matter.

[2] Gertrude Pirner-Moser seeks costs on a substantial indemnity basis because Diane Pirner undertook numerous ill-advised and unsuccessful interlocutory steps in this court. We agree that those steps were ill advised and resulted in unnecessary costs. We are not, however, prepared to make an order for costs on a substantial indemnity basis. As we have noted, this litigation was a product of Thomas Pirner’s continuing attempts to evade payment of support, which have left Diane Pirner and the children in reduced circumstances. This particular piece of litigation originates in Thomas Pirner’s conveyance of the cottage in breach of the Family Law Act. Had Diane Pirner moved promptly in consequence of Jennings J.’s Order, she could have set aside that conveyance. Thereafter, as a result of transactions that seemed to have benefited Gertrude Pirner-Moser at the expense of the Pirner Trust (in which the children were beneficiaries), the cottage property is now out of the reach of Diane Pirner and the children to secure the arrears.

[3] Given this history, it would be unfair to award anything more than modest costs to Gertrude Pirner-Moser. We make an order for costs in her favour only because of the unnecessary expense engendered by the ill-conceived steps. This case is not governed by the Family Law Rules and we think this order is required having regard to the factors set out in Andrews v. Andrews (1980), 32 O.R. (2d) 29 (C.A.).

[4] Accordingly, the respondent Diane Pirner will pay costs to the appellant Gertrude Pirner-Moser in the amount of $3,000 inclusive of GST and disbursements.

Signed: “M. Rosenberg J.A.”

“J.C. MacPherson J.A.”

“Robert J. Sharpe J.A.”