Draves v. Draves, 2019 ONSC 2262

CITATION: Draves v. Draves, 2019 ONSC 2262

DIVISIONAL COURT FILE NO.: DC-18-73-00 DATE: 20190409

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

GORDON, BACKHOUSE, BALE JJ.

BETWEEN:

JEFFERY FREDERICK DRAVES Appellant

• and -

ANDREA LYNN DRAVES Respondent

Michael J. Ruhl, for the Appellant Self-represented

HEARD at Brampton: April 8, 2019

ENDORSEMENT

r. gORDON J.

1The Appellant appeals from the decision of Fragomeni J. in which he held there be no costs payable by either party following the hearing of a Motion to Change.

2The Appellant had been successful in the motion and had served two offers to settle which, in his submission, he met or exceeded.

3The trial judge determined that although there was a presumption of costs in favour of the Appellant, the undue hardship visited upon the Respondent by any such award militated against any costs award.

4Clearly, the issue of costs is in the discretion of the trial judge. As the Ontario Court of Appeal noted in McNaughton Automotive Ltd. v. Co-Operators General Insurance Co., 2008 ONCA 597: “…the judge of first instance is in the best position to determine the entitlement, scale and quantum of any such award…He knows and understands all the subtleties of the cases. I must grant him considerable deference unless I conclude that there are obviously strong grounds of appeal.”

5In this instance, the trial judge correctly determined that the Appellant enjoyed a presumption in favour of costs given his success. Although he did not specifically comment upon the two offers made by the Appellant, in our view he was correct not to because the issue of support for one of the children of the marriage was left undetermined. Until that issue is canvassed by the court, there can be no valid comparison of the offers to the final result obtained and no determination that the Respondent was unreasonable in her failure to accept one or the other of them.

6The trial judge was entitled to consider the consequences an adverse costs order would have on the Respondent and the child of the marriage who remained in her care. He was in the best position to understand the subtleties of the case and whether an award of costs was appropriate. In our view, in the particular circumstances of this case, his decision is entitled to deference.

7It follows that the appeal is dismissed. As the Respondent did not request costs, none are ordered.

R. Gordon J.

I agree _______________________________

Backhouse J.

I agree _______________________________

Bale J.