Court of Appeal for Ontario

Date: 2017-06-19 Docket: C61692

Judges: Gillese, Pepall and Roberts JJ.A.

Between

Toni Halliwell Applicant (Respondent)

and

Martin Halliwell Respondent (Appellant)

Counsel

Deborah Ditchfield, for the appellant Robert Bickle, for the respondent

Heard: October 17, 2016

On Appeal

On appeal from the Judgments of Justice R. John Harper of the Superior Court of Justice, dated January 8, 2016, and September 26, 2016, with reasons reported at 2016 ONSC 182.

Costs Endorsement

[1] By reasons released May 2, 2017 (the "Reasons"), the appeal in this proceeding was allowed in part. The result is that the equalization payment ordered at trial remains but the amount of spousal support is reduced. In the Reasons, the court noted that because the appeal had been allowed in part, it was necessary to consider not only costs of the appeal but also the costs award at trial ("Trial Costs"). The court also indicated in its Reasons that if the parties were unable to resolve the matter of costs both on appeal and below, they could make written submissions on those matters.

[2] The parties were unable to resolve the matter of costs and the court has now received and reviewed their submissions on that matter.

Trial Costs

[3] The respondent submits that the Trial Costs should be maintained. She points out that she was wholly successful at trial, the result achieved was substantially better than the appellant's last offer before trial, and the quantum of costs awarded at trial was based on the consent of the parties. The appellant does not seriously contest the Trial Costs.

[4] We affirm the Trial Costs. We would be reluctant to disturb the Trial Costs, now knowing that the quantum was based on the consent of the parties. In any event, after factoring in the appellant's partial success on appeal, the result is still substantially better than the appellant's last offer before trial.

Costs of the Appeal

[5] The appellant says that as the successful party on the appeal, he is entitled to his costs on a partial indemnity basis in the amount of $68,249.93, inclusive of disbursements and HST. He also asks that the costs of the appeal be applied as a credit against the Trial Costs.

[6] The respondent submits that she was "essentially" successful on the appeal and is presumptively entitled to partial indemnity costs of the appeal. However, her position is that no costs of the appeal should be awarded. It is also worthy of note that her partial indemnity costs of the appeal, inclusive of disbursements and HST, are $30,434.37.

[7] We agree with the respondent that the appellant was wholly unsuccessful on his appeal of the equalization payment and that he failed on a number of grounds of appeal relating to spousal support. Nonetheless, he was successful in having the quantum of spousal support reduced on appeal. Accordingly, he is prima facie entitled to some part of his partial indemnity costs.

[8] Having regard to the appellant's limited success on the appeal and after reviewing the parties' respective bills of costs, we award the appellant costs of the appeal fixed in the all-inclusive sum of $21,000. We decline to order that costs of the appeal be applied as a credit against the Trial Costs. The appeal clarified the appellant's financial obligations to the respondent. We are confident that the Trial Costs and the costs of the appeal can be dealt with as part of the discharge of those obligations.

Eileen E. Gillese J.A. S.E. Pepall J.A. L.B. Roberts J.A.