V. Ambrosino

Following a successful appeal that set aside an order requiring the appellant to have a litigation guardian, the court determined the costs of the appeal.

The appellant sought substantial indemnity costs of over $30,000, arguing that full recovery is the norm in family law proceedings.

The respondent argued for no costs due to the novelty of the issue, or alternatively $7,000.

The Divisional Court held that the normal rule of partial indemnity costs applies to appellate proceedings in this court, rejecting the family law full-recovery norm for appeals.

Costs were fixed at $15,000 on a partial indemnity basis.

The minor appellant brought an application seeking child support from her biological father.

The motion judge held that the appellant was required to have a litigation guardian under Rule 7 of the Rules of Civil Procedure, finding the Family Law Rules did not adequately cover the situation.

On appeal, the Divisional Court held that the Family Law Rules do adequately cover the situation, specifically exempting a child in a child support case from the definition of a 'special party'.

The appeal was allowed, and the order requiring a litigation guardian was set aside.

The parties made costs submissions following a successful motion by the respondent father to set aside an appeal decision based on a reasonable apprehension of bias.

The appellant daughter sought costs thrown away for the initial appeal hearing, while the respondent father sought costs as the successful party on the motion to set aside.

The Divisional Court declined to award costs to either party, noting that the motion to set aside was based on the appearance of judicial impartiality and was unconnected to the merits of the underlying dispute or the parties' conduct.

The court left the determination of costs for the preparation of the appeal materials to the new panel that will re-hear the appeal.

The moving party brought a motion to set aside an appeal decision after discovering that one of the panel judges had briefly represented him in a related matter 16 years prior, before her appointment to the bench.

Neither the judge nor the moving party recalled the relationship at the time of the appeal hearing.

Applying the objective standard for reasonable apprehension of bias, the court found that prudence dictated setting aside the decision and constituting a new panel to re-hear the appeal.