Court File and Parties

COURT FILE NO.: 452/15 DATE: 2016 10 14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CYNTHIA MARIE GHENT v. NORMAN HARRY BUSSE

BEFORE: EMERY J.

COUNSEL: Kamaljit Saini, for the Applicant Marilyn Samuels, for the Respondent

HEARD: In writing

COSTS ENDORSEMENT

[1] Each party on the motion and cross-motion seeks costs, claiming to be the successful party on those motions determined by my endorsement dated August 22, 2016.

[2] Ms. Ghent seeks $13,669.89 on a substantial indemnity basis for the motion, inclusive of disbursements. In the alternative, she seeks costs of the motion in the amount of $9,568.92 on a partial indemnity basis. Ms. Ghent claims that she was the successful party, and is therefore presumed to be entitled to costs under Family Law Rule 24(1).

[3] Mr. Busse claims that he was successful on the central issue on which the motion turned, namely what amount he is to pay for Hayden’s post-secondary education costs. Ms. Ghent’s entitlement to ongoing support was held to the monthly amount based on his annual income specified in the separation agreement. Mr. Busse claims that the court found that Ms. Ghent was not to “double dip” in terms of receiving full on-going support without having to contribute part of those monthly payments to Hayden’s room and board and other expenses. He claims success because the court’s interpretation of paragraph 6.4 of the separation agreement was consistent with his position.

[4] Ms. Ghent has made two relevant offers to settle that I must consider.

[5] The applicant, Ms. Ghent, was successful on obtaining an order that Mr. Busse pay his 75 per cent contribution towards Hayden’s post-secondary education expenses for an amount greater than each of her offers to settle. However, that measurement of success does not bring her claim for costs within the ambit of either Rule 18 or Rule 24(1). I agree with Mr. Busse that Ms. Ghent was unsuccessful on her motion to increase Mr. Busse’s monthly payments for ongoing child support because she failed to have a higher imputed income to him on the evidence, and to make his contribution towards Hayden’s post-secondary expenses based on any amount that includes his living expenses while attending school. In the final result, both parties had their share of success.

[6] Family Law Rule 24(6) provides the court with the power to allocate costs when success on a motion is divided.

[7] I consider the parties on the motion achieved divided success on the two motions. Accordingly, I therefore do not consider it appropriate to award costs to either party.

Emery J DATE: October 14, 2016