2024 ONSC 569, 2024 ONSC 569

CITATION : Walsh v. Tober, 2024 ONSC 569 DIVISIONAL COURT FILE NO.: DC-23-177 DATE: 20240129 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: CHARLENE WALSH, Applicant (Respondent in appeal) AND: ANTHONY TOBER, Respondent (Appellant) BEFORE: Lococo, Emery and Schabas JJ. COUNSEL: Edwin W. Paget , for the Applicant (Respondent in appeal) Anthony Tober, Respondent (Appellant), acting in person HEARD: By written submissions dated December 22, 2023 and January 23, 2024 ENDORSEMENT – COSTS [ 1 ] This endorsement addresses the costs consequences arising from the appellant Anthony Tober’s appeal from final orders of the Family Court that dismissed Mr. Tober’s motion for

summary judgment and granted

summary judgment and costs to respondent Charlene Walsh. As set out in Reasons for Judgment dated December 21, 2023 (reported at 2023 ONSC 7111 ), Mr. Tober’s appeal was dismissed. Costs were left to be determined following written submissions. [ 2 ] In the written costs submissions that Ms. Walsh’s counsel provides, Ms. Walsh seeks a costs award in her favour, as the successful party in the appeal. In support of her request for costs of $4,000 all inclusive, she provides a Bill of Costs, indicating total fees of $6,925 not including HST.

She submits that the amount requested (payable within 60 days) is appropriate, taking into account Mr. Tober’s ability to pay. [ 3 ] In his costs submissions, Mr. Tober notes that there is a presumption that a successful party is entitled to their costs: see Family Law Rules , O. Reg. 114/99, r. 24(1) . Nonetheless, he seeks a costs award of $4,000 in his favour, arguing that Mr. Walsh’s counsel acted unreasonably during the case: see r. 24(4).

The instances of unreasonableness he cites include errors in paragraph numbering in two filed documents, one of which was corrected only after the deadline for filing materials. Mr. Tober also asks that his limited financial circumstances and health challenges be taken into account. [ 4 ] The conduct that Mr. Tober cites as evidence of unreasonableness does not even come close to justifying depriving a successful party of her costs, let alone justifying a costs order in Mr. Tober’s favour. Ms. Walsh is entitled to costs on a partial indemnity basis.

Consistent with both parties’ submissions, the amount should be adjusted to take into account Mr. Tober’s limited financial circumstances. [ 5 ] Mr. Tober is ordered to pay costs to Ms. Walsh in the amount of $3,000 all inclusive, payable within 90 days. _______________________________ Lococo J. _______________________________ Emery J. _______________________________ Schabas J. Released: January 29, 2024