Court of Appeal for Ontario

Date: 2018-03-09 Docket: C62765

Judges: Pepall, Lauwers and Pardu JJ.A.

Between

Margaret Perri Applicant (Respondent)

and

Enzo Perri Respondent (Appellant)

Counsel

Andrew Kania, for the appellant

Karen Cunningham and Athena McBean, for the respondent

Heard

December 11, 2017

Appeal Information

On appeal from the judgment of Justice Kofi N. Barnes of the Superior Court of Justice, dated September 16, 2016, with reasons for judgment reported at 2016 ONSC 5833.

Costs Endorsement

[1] The issue of costs remains. The respondent wife claims full recovery costs of $38,642.47. The appellant husband claims partial costs of $16,264.29.

[2] Each of the parties supports his or her claim for costs with an argument that he or she was more successful on the appeal.

[3] The most substantial issue on the appeal was whether the application judge erred in awarding spousal support to the wife. The appellant argued that there was no economic detriment to the wife flowing from the roles the parties adopted during marriage, and that there was therefore no entitlement to spousal support. He was not successful on this argument. The amount in issue was over $100,000 after considering the tax consequences of a lump sum spousal support as opposed to periodic support. The respondent conceded at the hearing of the appeal that those tax consequences should result in an amendment of the order. The respondent was successful in resisting the appellant's argument that the application judge erred by failing to conclude that the son of the parties continued to be a child of the marriage. Other changes to the application decision were not controversial. The respondent was largely successful on the contested issues on the appeal.

[4] There were some additional costs incurred by the respondent when the appellant was late in perfecting his appeal, and in responding to the appellant's motion to introduce fresh evidence which was dismissed.

[5] Partial indemnity costs are appropriate in this case, and I would award the respondent costs fixed at $28,000.00, inclusive of fees, disbursements and applicable taxes.

S.E. Pepall J.A.

P. Lauwers J.A.

G. Pardu J.A.