Stewart v. Crane, 2011 ONCA 758
COURT OF APPEAL FOR ONTARIO
MacPherson, Simmons and Blair JJ.A.
BETWEEN
Norma Stewart
Applicant/Respondent
and
Joe Crane
Respondent/Appellant
Patrick Di Monte, for the appellant
Marie G. Michaels, for the respondent
Heard & released orally: November 25, 2011
On appeal from the judgment of Justice Sherrill M. Rogers of the Superior Court of Justice dated July 16, 2010.
ENDORSEMENT
1Rogers J. ordered Mr. Crane to pay Ms. Stewart costs in the amount of $22,263.24 plus HST. The order was made following the disposition of jointly tried issues arising out of a Partition Act claim brought by Mr. Crane in relation to the couple’s former co-habited property and a Family Law Act application brought by Ms. Stewart.
2In addition to the home, the issues raised included custody, child and spousal support (and the related issue of imputed income), interest in certain personal property, common liability for debts and a claim by Ms. Stewart to an interest of approximately $94,000 of investments owned by Mr. Crane.
3Although there is a debate about the extent to which Ms. Stewart prevailed, the trial judge clearly viewed her to be the successful party. Rogers J. awarded costs on the basis that she had been 80% successful and applied that percentage to an amount that represented full recovery for the matters relating to the proceedings because she was of the view that Mr. Crane should have accepted an earlier offer to settle. Mr. Crane seeks to attack both of these determinations and adds that there should either no costs awarded or, if so, that they should be awarded to him.
4We reject these submissions.
5A cost award is a discretionary order in terms of both the amount to be paid, and by whom, and is subject to a very limited appellate review. The court will only interfere if the trial judge has made an error in principle or if the cost award is plainly wrong: see Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303 at para. 27, citing the decision of this court in Duong v. NN Life Insurance Co. of Canada, 2001 CanLII 24151 (ON CA), 141 O.A.C. 307 at para. 14.
6Here, there was ample support on the record for the trial judge’s “80% success” conclusion and she was in a much better position to make that call than are we. We see no basis to interfere. There was ample support as well for her view that it was appropriate to take the earlier offer to settle into account: see Family Law Rules 18(16) and 24(5)(b). We can find no error in principle on the part of the trial judge, nor do we think that the decision was wrong, much less clearly wrong.
7Leave to appeal is therefore granted but the appeal is dismissed for the foregoing reasons. Costs to the respondent are fixed in the amount of $5,000 all inclusive.
“J.C. MacPherson J.A.”
“J.M. Simmons J.A.”
“R.A. Blair J.A. ”