CITATION: Harrington v. Harrington, 2009 ONCA 190

DATE: 20090302

DOCKET: C47432

COURT OF APPEAL FOR ONTARIO

Weiler, Juriansz and MacFarland JJ.A.

BETWEEN

Shelley Marlene Harrington

Applicant (Appellant)

and

Kevin Harrington

Respondent (Respondent)

David A. Seed, for the appellant

David J. Sherman and Ian D. Corneil, for the respondent

Heard: December 8, 2008

On appeal from the order of Justice William J. Festeryga of the Superior Court of Justice dated May 7, 2007.

COSTS ENDORSEMENT

[1] On January 19, 2009 this court released its decision allowing the appellant’s appeal in part and invited costs submissions from the parties. The appellant’s counsel appears to have taken this as an invitation to reargue his case. It was not.

[2] As noted by the trial judge, the main issue at trial was whether “the assets of the respondent’s father ought to be included in the calculation of the equalization payment.” He held that they ought not to be. On appeal, that finding was maintained with one exception. Based on the evidence of the respondent that he was entitled to use the income from his father’s property as he wished, and his evidence that he had exercised his power of attorney accordingly, the court ordered that the amount of $160,000 in income in the respondent’s name at the date of separation be included in his net family property.

[3] The relevant portions of Rule 18 of the Family Law Rules (which are applicable in Hamilton) contemplate the making of an offer to settle one or more claims. (See Rule 18(1) and the definition of offer.)

[4] Originally at trial, the result was more favourable to the respondent than his offer to settle either the property or support claim. Based primarily on the respondent’s offer, the trial judge ordered the appellant to pay the respondent the amount of $82,822.00 in costs.

[5] On appeal, the appellant has achieved a result that is greater than the respondent’s offer to settle the property issue which was the main issue at trial. The trial judge’s award with respect to support was not disturbed. It can fairly be said that success at trial was divided. The overall award remains less than the respondent’s offer to settle. A comparison is set forth below:

Total Offered by Respondent

Periodic support up to review period (5 years at $2,500.00 per month)

$150,000.00

Equalization

96,300.00

Total

$246,300.00

Result at Trial Following Appeal

Periodic support up to review period (3 years at $2,100.00 per month)

$75,600.00

Equalization (excluding credit of exhibit 43 adjustment of $11,053.91)

126,369.61

Total

$201,969.61

[6] The respondent submits that the costs award at trial ought not to be disturbed on the basis that the appellant’s behaviour was unreasonable, the amount by which the property award of this court exceeded the respondent’s offer is not large, and the respondent’s offer was much closer to the actual award than the appellant’s.

[7] We would not give effect to any of these arguments. In his award of costs the trial judge did not find that the appellant’s behaviour was unreasonable. Rather, he commented that the applicant knew or ought to have known that the exercise of tracing the funds in the respondent’s hands was going to be expensive and it was. In the end, that expense was necessary as it required him to explain his treatment of his father’s funds.

[8] The amount by which the property award of this court exceeded the respondent’s offer is significant. We acknowledge that the respondent’s offer to settle was much closer to the actual award than the appellant’s. At the same time, we bear in mind other principles respecting the award of costs in family law matters such as ability to pay and the relative means of each party to bear his or her own costs.

[9] Having regard to the factors set out above, we would set aside the costs award in favour of the respondent at trial and order each party to bear their own costs.

[10] The appellant achieved some success on appeal and it was necessary for her to bring the appeal in order to do so. We would award her $5,000 in costs, all inclusive payable by the respondent.

“K.M. Weiler J.A.”

“R.G. Juriansz J.A.”

“J. MacFarland J.A.”