NEWMARKET COURT FILE

NEWMARKET COURT FILE: FC-10-035725-00

DC- 13-00618-ML

DATE: 20140715

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOSHUA SERA, Applicant (Responding Party)

AND:

JENNIFER AMBROISE, Defendant (Moving Party)

BEFORE: Justice J.R. McCarthy

COUNSEL: J. Irwin, for the Applicant (Responding Party)

G. Shortliffe, for the Respondent (Moving Party)

HEARD: BY WRITTEN SUBMISSIONS

COSTS ENDORSEMENT

[1] The Respondent mother (RM) was unsuccessful in her motion for leave to appeal the decision of Madame Justice Gilmore dated November 14, 2013. The RM then elected not to pursue the urgent/emergency access motion.

[2] The parties have been unable to resolve the issue of costs. I requested and received written submissions on that issue from both parties.

[3] The Applicant Father (AF) seeks costs of both the leave motion and the abandoned emergency access motion. The amounts sought, on a partial indemnity basis, are $7,800.00 and $3,750.00 respectively.

[4] The RM cites various factors, including the reasonableness of the motion for leave, the nature of the emergency motion, the fact that an adjournment was made necessary by the AF’s refusal to accept anything but court translated materials and the RM’s responsible decision to withdraw the emergency motion in light of the ruling on the leave application and the imminence of trial on the issues involved. The RM suggests that costs to the AF should be limited to $2,500 for the leave application and $1,000 on the variation motion.

[5] The motion for leave to appeal was not unreasonable. It was accompanied by helpful and focused supporting materials. The RM’s submissions were thoughtful, articulate and delivered with ardour. Still, the RM failed to persuade the court to find in its favour. The AF was required to prepare for and respond to two motions in spite of the fact that the second of the two did not proceed. The AF effectively prevailed on both motions. At one time the RM was self-represented but not so on these motions before me. The court must assume that she was made aware of the likely costs consequences of these motions, if they were defeated.

[6] Having taken into account all of the circumstances, this court orders that the RM pay the AF his costs of both motions in the amount of $7,500.00 inclusive of disbursements and HST. Those costs are fixed and payable forthwith.

Justice J.R. McCarthy

Date: July 15, 2014