Court of Appeal for Ontario

Date: 2017-04-24 Docket: C61093

Judges: Gillese, MacFarland and Pepall JJ.A.

Between

Donna Jean Hunks Applicant (Appellant)

and

Gary Eugene Hunks Respondent (Respondent)

Counsel

Trent Zimmerman, for the appellant

P. Alan R. Giles, for the respondent

Heard: December 16, 2016

On appeal from the order of Justice Johanne N. Morissette of the Superior Court of Justice, dated September 16, 2015.

Costs Endorsement

[1] On March 27, 2017, this court released its reasons for decision in this matter. It allowed the appeal, set aside the order that had been made below, and ordered costs of the appeal in favour of the appellant, fixed at $10,000, all inclusive. The court indicated that if the parties were unable to agree on how costs of the motion below should be dealt with, they could make written submissions on that matter.

[2] The court has now received the parties' submissions. Based on those submissions, we are satisfied that the costs of the motion below is a matter best left to the trial judge.

[3] The appeal did not dispose of all of the issues that divide the parties. Thus, the court understands that the trial will resume. The trial judge will be in the best position to fairly determine the matter of costs of the motion below (after factoring in the result on appeal) once the outstanding issues have been adjudicated upon and she has considered such things as rule 49 offers.

[4] In her written submissions on this matter, the appellant expressed a concern that the respondent was attempting to dispute this court's order as to costs of the appeal. We do not read the respondent's submissions in that way. We understand his submissions to be directed solely to the question of how costs of the motion below should be dealt with. To ensure that there is no misunderstanding on this point, we would simply reiterate that this court's order as to costs of the appeal remains: the appellant is entitled to costs of the appeal fixed at $10,000, all inclusive.

[5] For the reasons given, this court makes no determination as to costs of the motion below, instead leaving that matter to the trial judge.

"Eileen E. Gillese J.A."

"J. MacFarland J.A."

"S.E. Pepall J.A."