DATE: 20040408

DOCKET: C40513

COURT OF APPEAL FOR ONTARIO

RE: MICHAEL FRANCIS WALSH (Appellant) – and – JOANNE CONSTANCE WALSH (Respondent

BEFORE: LASKIN, GOUDGE and FELDMAN JJ.A.

COUNSEL: Harold Niman and Anita Volikis for the appellant

Carole Curtis, Victoria Starr and Valda Blenman for the respondent

HEARD: September 30, 2003

On appeal from the order of Justice Lorna-Lee Snowie of the Superior Court of Justice dated February 26, 2003.

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

[1] Success in these proceedings has been divided. Although Mr. Walsh obtained leave to appeal the decision of Snowie J. to the Divisional Court, that court correctly held that it had no jurisdiction to hear the appeal. Mr. Walsh must, therefore, bear the cost consequences of the proceedings in the Divisional Court.

[1] He has, however, succeeded on his appeal to this court. In these circumstances, and taking into account the disparity in income between the two parties, we think the fair order is that there be no costs, either of the proceedings in the Divisional Court or in this court.

[2] The costs order of Snowie J. cannot stand. In its place we order that the costs of the motion before her be reserved to the judge hearing the application to vary.

“John Laskin J.A.”

“S.T. Goudge J.A.”

“K. Feldman J.A.”