Court of Appeal for Ontario

Citation: Ludmer v. Ludmer, 2007 ONCA 892
Date: 2007-12-20
Docket: C46629

Before: Winkler C.J.O., Cronk and Epstein JJ.A.

Between:

Lisa Ludmer
Applicant/Respondent in Appeal

and

Brian Ludmer
Respondent/Appellant in Appeal

And in the matter of the motion brought by:

Gary Spira
Moving Party/Respondent in Appeal

Counsel:
Gary S. Joseph, for the respondent/appellant Brian Ludmer
Deborah Zemars, for the applicant/respondent in appeal Lisa Ludmer
Julie K. Hannaford and Julie A. Layne, for the moving party/respondent in appeal Gary Spira

Heard & Released Orally: December 17, 2007

On appeal from the final orders of Justice Susan Greer of the Superior Court of Justice, dated January 11, 2007 and April 2, 2007.

Endorsement

[1] The appellant appeals the orders of Greer J. dated January 11, 2007 and April 2, 2007 on several grounds. As the matter was ultimately argued, counsel for the appellant submitted that the motion judge erred by:

(i) dismissing the appellant’s claims for damages for the tort of invasion of privacy and under s. 35 of the Children’s Law Reform Act; and

(ii) restraining the appellant from commencing any other proceeding in any other coordinate court of the Superior Court of Justice or the Ontario Court of Justice relating to matters in issue against either the respondent or his wife, in the matrimonial proceeding.

[2] Submissions were also made concerning the motion judge’s cost award.

[3] In respect of the first of the alleged errors, it is clear from her reasons that the motion judge dismissed the appellant’s claims without prejudice to his entitlement to raise them, if so advised, in the on-going matrimonial proceeding, by moving to add the respondent as a party in that action. The parties are essentially in agreement that we clarify the motion judge’s order to reflect this.

[4] In respect of the restraining order, counsel for the respondent, quite properly, acknowledged that paragraph 4 of the motion judge’s order dated January 11, 2007 cannot stand.

[5] The concern about the motion judge’s cost award was whether she granted costs in favour of the respondent on a full indemnity scale. In light of the fact that the motion judge reduced the amount the respondent claimed for costs, it is clear that she ordered costs on a substantial indemnity basis. For the reasons set out in the motion judge’s endorsement, we see no reason to interfere with that scale or the amount awarded.

[6] Accordingly, the appeal is allowed, in part, by amending paragraph 2 of the January 11, 2007 order of the motion judge to provide that the action commenced by the appellant, styled as action number 06-CV-315493PD3 is dismissed, without prejudice to the appellant’s entitlement to move to add the respondent as a party in the matrimonial proceeding styled as action number 06-FD-30448FIS. In addition, paragraph 4 of the January 11, 2007 order is deleted. In all other respects, the appeal is dismissed and the orders of the motion judge remain in full force and effect.

[7] In view of the mixed results before this court, there will be no order as to costs.

"Winkler C.J.O."
"E. A. Cronk J.A."
"G. Epstein J.A."