The parties each sought Costs arising from two unsuccessful Appeals of Orders of the Provincial Court. The Appeal of the Order of Judge Mah pertained to access to a child during Christmas holidays, which access time had passed by the time the Appeal was heard. The Appeal was dismissed as being moot. The Appellant sought Costs on this Appeal, arguing that the Appeal was necessary because the Order was likely to be relied upon by the Respondents for future access Orders. The Appellant also noted that the Respondents conduct resulted in several unnecessary steps which the Appellant incurred legal Costs in addressing. The Appellant also argued that no Costs should be payable in respect of the second Appeal because the Provincial Court Judge had amended the Order without notice to either party, and that the Appeal of that Order took relatively less time before the Court. The Appellant also argued that the photocopying charges claimed for were excessive.

Justice Grosse noted that Costs are awarded at the discretion of the Court, per Rule 10.31, however, subject to that discretion, the general rule is that the successful party is entitled to Costs, per Rule 10.29. In exercising its discretion on Costs, Rule 10.33 sets out a number of considerations for the Court.

Justice Grosse held that each party should bear its own Costs for the Appeal of Judge Mah’s Order. Justice Grosse noted that the Respondents had not argued mootness and wanted the Order upheld on its merits, however, the circumstances did not warrant granting the Appellant Costs for bringing a moot Appeal.

Justice Grosse granted the Respondents Costs for the second Appeal, noting that there was no reason to depart from the general rule for payment of litigation Costs set out in Rule 10.29. Justice Grosse elected to fix a set amount of Costs pursuant to Rule 10.31.

Justice Grosse held that each party would bear their own Costs of the Application before her given the mixed success.