Court File and Parties

COURT FILE NO.: 1198/17

DATE: 2018-10-30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Gerald Dube, Applicant

AND:

Amanda Dube, Respondent

BEFORE: The Honourable Madam Justice L. Madsen

COUNSEL: Applicant, Self-Represented Respondent, Self-Represented

HEARD: In Chambers

Endorsement

[1] The parties argued a motion on September 6, 2018 regarding the day care pick-up time for their child. On October 9, 2018, Justice Lafrenière released her six-page Endorsement on that issue. Her decision included a timetable for the Court’s receipt of costs submissions.

[2] The Applicant, David Dube [“Mr. Dube”], has sought leave to appeal Justice Lafrenière’s decision about daycare pick up time to the Ontario Divisional Court. He has also sought an Order in that Court staying Justice Lafrenière’s ruling until the appeal is heard. Mr. Dube attached his materials for the Divisional Court to his motion materials for this matter.

[3] In this Court, Mr. Dube seeks an Order that costs of the September 6, 2018 motion be “reserved” until the “appeal process is complete.” He argues that it would be prejudicial for costs to be assessed while there is an extant leave to appeal. In effect he seeks to stay the timetable set by Justice Lafrenière for the filing of costs submissions until after the leave to appeal motion and potential appeal (if leave is granted) is heard and determined.

[4] Mr. Dube relies on Rule 24(10)(b) of the Family Law Rules for the relief sought in this Court. Rule 24(10) provides as follows:

24(10) DECIDING COSTS -- Promptly after dealing with each step in the case, the Court shall

(a) make a decision on costs in relation to that step; or

(b) reserve the decision on costs for determination at a later stage in the case.

[5] Rule 24(10.1) provides that courts are to decide costs matters on a summary basis.

[6] There is no provision in Rule 24 for staying the costs determination process pending appeal.

[7] Rule 38(1) of the Family Law Rules provides that in appeals to the Divisional Court and Court of Appeal, Rules 61, 62, and 63 of the Rules of Civil Procedure apply with necessary changes.

[8] Rule 63 of the Rules of Civil Procedure governs the issue of stay pending appeal (as opposed to pending a motion for leave to appeal). Rule 63.02 provides that where, as here, a stay is not automatic, a Court (the Court whose decision is to be appealed or an appeal Court) may stay an interlocutory Order on such terms as are just. Rule 63.03(2) provides that even if a stay were to be granted, this does not prevent the assessment of costs.

[9] The Ontario Court of Appeal has held that a Court should not interfere with the assessment of costs except in an unusual fact situation. See McGregor v. Royal Victoria Hospital of Barrie Inc. 1991 CarswellOnt 406 (OCA). The Court stated in part:

I think it would take an unusual fact situation to justify a court in interfering with the effect of r. 63.03(2). The complaint of the appellants in this case is by no means unusual. See para. 4.

[10] As noted, as part of his relief in the Divisional Court, Mr. Dube seeks a stay of Justice Lafrenière’s Order. In this Court he seeks, as noted, he effectively seeks a stay of the costs determination process pending the appeal.

[11] The thrust of Rule 24 of the Family Law Rules is to ensure that costs are determined in a prompt and summary manner, based on the principles enunciated in the Rule and elaborated in the case law. Delaying the costs determination in relation to this matter until after the appeal process would not assist in furthering those goals.

[12] Rule 63.03(2) makes clear that even if a stay of the decision were to be granted by the Divisional Court pending appeal (if the Divisional Court grants leave to appeal), that stay would not prevent the assessment of costs. This is not an unusual fact situation, as contemplated by McGregor, supra, which would justify the Court not determining costs in the usual course.

[13] In all of the circumstances, Mr. Dube’s Motion dated October 17, 2018 is dismissed.

Madsen J.

Date: October 30, 2018