Crooks v. Crooks, 2017 ONSC 2019
CITATION: Crooks v. Crooks, 2017 ONSC 2019
DIVISIONAL COURT FILE NO.: DC-16-00000025 DATE: 20170331
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, SWINTON, M.L.J. EDWARDS JJ.
BETWEEN:
Sheanna Crooks Appellant
– and –
Courtney Crooks Defendant/Respondent
Self-Represented Appellant Self-Represented, Respondent
HEARD at Brampton: March 30, 2017
M.L.J. EDWARDS J. (Orally)
[1] The appellant husband in these matrimonial proceedings appeals the final costs order (“the Order”) of Fitzpatrick J. [“the trial judge”) dated February 12, 2016, as a result of which the husband was ordered to pay the respondent wife her costs fixed in the amount of $25,000.00.
[2] Leave to appeal the order was granted pursuant to the endorsement of Justice Donohue, dated June 14, 2016.
Standard of Review
[3] In Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27, the Supreme Court of Canada stated:
A court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong.
[4] An award of costs is a discretionary order and as such, appellate review is limited.
[5] This court sitting as an appellate court should only interfere with the order if there has been a misdirection or the decision is so clearly wrong as to amount to an injustice.
The Facts
[6] The determination of costs came before the trial judge as a result of the parties having resolved all of the issues arising out of their separation; all, that is, except costs. Their agreement resulted in three final orders of Justice Coats that incorporated the parties’ agreement. For reasons best known to the parties, they requested that the issue of costs be dealt with by the trial judge, even though he only had very limited background with the case. The parties provided written submissions and their bills of costs to the trial judge together with their various offers to settle. The husband sought costs on a partial indemnity basis of approximately $122,000.00 and on a full indemnity basis of approximately $188,000.00. The wife on the other hand suggested that she should be awarded costs ranging from approximately $70,000.00 on a partial indemnity basis to approximately $110,000.00.
Analysis
[7] In coming to the conclusion that he did, the trial judge was put into a very difficult position as he was asked to assess costs by reference only to the parties’ various settlement offers and the parties’ written submissions. This was not the classic situation after a trial where there is a “winner” and a “loser” and the court is then in the best position to determine which party has presented the most reasonable offer in the context of the final order of the court.
[8] The trial judge found that both parties acted unreasonably throughout the process, except with respect to the issue of custody and access. At paragraph 14 of his reasons he stated:
The only topic that I can cultivate any sense of clarity for is the custody and access issue. It is clear that the general custody and access issues were hard fought and the most significant dispute between these parties. The applicant made several offers from May 2014 forward, proposing the fundamental framework that the parties ultimately settled upon, namely, joint custody with parallel parenting and shared time. I am of the view that the respondent failed to and should have accepted this basic framework towards achieving settlement of that issue prior to the settlement reached in December 2014. In other words, the respondent should have acted more reasonably in response to the applicant’s repeated proposals providing this framework and this would have saved significant costs to the parties. In my view the balance of the issues involved a give and take over time to achieve resolution and a dynamic that assigns fault and credit to each side.
[9] In my view, the trial judge made a palpable and overriding error when he stated the wife’s offers reflected the fundamental framework in the trial order. He failed to consider the husband’s April 2014 offer that reflected the fundamental framework of parallel parenting. The wife’s offers did not initially propose parallel parenting but rather, weekend access. The trial judge’s error of fact informed his conclusion that the husband’s conduct was unreasonable.
[10] Accordingly, the costs order against the husband must be set aside.
Costs of Trial
[11] Having now excised, essentially, paragraph 14 of the trial judge’s reasons, it is apparent up to that point in time the trial judge would not have awarded any costs at all and our view is that there is no error in the balance of his reasoning and as such there will be no order of costs with respect to the remaining issues.
Costs of Appeal
[12] In determining the question of costs of the appeal we take into consideration the offer that was made by the respondent, which in our view was a reasonable offer and had it been accepted by the appellant would have, for all intents and purposes, disposed of the appeal.
[13] Under the circumstances we are exercising our discretion to award no costs of the appeal.
[14] With respect to the $3,000.00 costs that were ordered by Justice Donohue, those costs were left to our ultimate discretion. For the same reasons as set forth in paragraph 12 above, we decline to award any costs of the leave motion.
M.L.J. Edwards J.
I agree _______________________________
Kiteley J.
I agree _______________________________
Swinton J.
Date of Reasons for Judgment: March 30, 2017
Date of Release: March 31, 2017
CITATION: Crooks v. Crooks, 2017 ONSC 2019
DIVISIONAL COURT FILE NO.: DC-16-00000025 DATE: 20170331
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, SWINTON, M.L.J. EDWARDS JJ
BETWEEN:
Sheanna Crooks Appellant
– and –
Courtney Crooks Defendant/Respondent
ORAL REASONS FOR JUDGMENT
M.L.J. EDWARDS J.
Date of Reasons for Judgment: March 30, 2017
Date of Release: March 31, 2017