) ) Anna Gavriluke Applicant/Responding Party – v. –, 2013 ONSC 1161

CITATION : Gavriluke v. Mainard, 2013 ONSC 1161 COURT FILE NO.: 4281/12 DATE: 2013-02-21 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Anna Gavriluke Applicant/Responding Party – and – Francois Mainard Respondent/Moving Party ) ) ) ) ) ) ) ) ) Brigitta Tseitlin, for the Applicant/Responding Party Gene C. Colman, for the Respondent/Moving Party ) ) ) THE HONOURABLE JUSTICE J. R. HENDERSON costs endorsement [ 1 ] The Respondent/Moving Party, Francois Mainard (hereinafter called “Mainard”), successfully brought a motion for leave to appeal the decision of the motions judge dated December 5, 2012.

Consequently, Mainard’s appeal will proceed to the Divisional Court. Mainard now requests his costs of the motion for leave to appeal. [ 2 ] There are two competing arguments that must be considered. First, as the successful party on the motion for leave to appeal, Mainard has a presumptive entitlement to costs pursuant to Rule 24(1) of the Family Law Rules .

This Rule is, of course, subject to the court’s broad discretion as to costs as set out in s.131(1) of the Courts of Justice Act. [ 3 ] On the other hand, the Applicant/Responding Party, Anna Gavriluke (hereinafter called “Gavriluke”), can correctly state that Mainard’s appeal has not yet been determined.

It is possible that the appeal will be dismissed, and, if so, the time and expense spent on the motion for leave to appeal may have no value. [ 4 ] I accept that the value of Mainard’s motion for leave to appeal can only be accurately assessed after the Divisional Court has made a determination as to the merits of the appeal.

If Mainard is ultimately successful on the appeal it would be logical for Mainard to have his costs of the motion for leave to appeal, and his costs of the appeal itself. [ 5 ] However, if Mainard is ultimately unsuccessful on the appeal, the Divisional Court may choose to award costs of the appeal in Gavriluke’s favour. If so, Mainard’s motion for leave to appeal, in hindsight, may have been worthless. [ 6 ] Therefore, the best course is to defer the decision as to the costs of this motion until the appeal has been determined.

Accordingly, it is ordered that the costs of this motion for leave to appeal are reserved to the panel hearing the appeal. Henderson, J. Released: February 21, 2013 CITATION : Gavriluke v. Mainard, 2013 ONSC 1161 COURT FILE NO.: 4281/12

DATE: February 21, 2013 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Anna Gavriluke Applicant/Responding Party – and – Francois Mainard Respondent/Moving Party COSTS ENDORSEMENT Henderson, J. Released: February 21, 2013