



COURT OF APPEAL FOR ONTARIO

CITATION: Schulstad v. Schulstad, 2017 ONCA 246

DATE: 20170324

DOCKET: C61349

Weiler, Rouleau and Roberts JJ.A.

BETWEEN

Campbell Karl Schulstad

Respondent (Applicant)

and

Diann Borden Schulstad

Appellant (Respondent)

Pam MacEachern, for the appellant

Ron Paritzky, for the respondent

Reasons concerning costs, supplementary to the judgment
    in
Schulstad v. Schulstad
, 2017 ONCA 95, released on February 3, 2017.

ENDORSEMENT

[1]

On February 3, 2017, we allowed in part the appellants appeal from the application
    judges October 23, 2015 order, and directed that the amount of spousal support
    and insurance benefits, if any, be sent back for determination by another application
    judge. This Endorsement disposes of the costs of the appeal and of the application
    below. The application judge had granted the respondent, as the successful
    party on the application, his partial indemnity costs in the amount of $15,000,
    inclusive of disbursements and HST.

[2]

The appellant submits that the costs order of the application judge
    should be set aside and that the costs of the application below should be awarded
    to the appellant in the same amount of $15,000. In particular, she argues that
    the respondents failure to disclose relevant financial information additionally
    justifies her receiving costs on the application below. The appellant seeks her
    partial indemnity costs of the appeal in the amount of $19,555, inclusive of
    taxes and disbursements. In total, the appellant asks for costs in the amount
    of $34,555.  The appellant maintains that as a result of the appeal, she was
    entirely successful and that costs should follow the event.

[3]

The respondent maintains that he has achieved the greater success
    relative to the appellant and should be awarded costs, for the following
    reasons:  the appellant opposed any reduction to spousal support or insurance
    benefits on the application below; the reduction to monthly spousal support
    from $10,500 to the interim amount of $1,000 is significant and any further
    adjustment will likely be modest; the respondent gained the ability to deduct
    the costs of life insurance premiums from the support. He submits that the award
    of costs to him on the application below should not be disturbed and that he
    should have his costs on the appeal in the further amount of $15,000. In total,
    the respondent asks for costs in the amount of $30,000.

[4]

Both parties rely on offers to settle in relation to spousal support and
    insurance benefits, which they exchanged during a mediation process prior to
    the hearing of the appeal. We do not find that these offers are of assistance
    because the amount of spousal support and insurance benefits has yet to be
    finally determined.

[5]

When an appeal is allowed, the general principle is that the order for
    costs below is set aside and costs are awarded to the successful party on a
    partial indemnity basis. This court has the discretion to depart from this
    approach in unusual circumstances. See
Kipij v. Metropolitan Toronto
    (Municipality)
(1999), 85 A.C.W.S. (3d) 763 (Ont. C.A.), at para. 2; and
Hunt
    v. TD Securities Inc.
(2003), 43 C.P.C. (5
th
) 211 (Ont. C.A.),
    at para. 2.

[6]

Whether the respondents spousal support and insurance obligations
    should be terminated or reduced was the main issue on the application below and
    on the appeal before this court. That the appropriate reduction to the
    respondents obligations remains open for determination by another application
    judge constitutes the kind of unusual circumstances that supports a departure
    from the general principle that the successful party on appeal be granted the
    costs on the proceeding below.

[7]

As a result, while we set aside the application judges costs order, the
    costs of the application below and of any further application to determine the
    final reduced amount of spousal support and insurance benefits are reserved to
    the application judge. This is the fairest approach for the parties because the
    application judge will be in the best position to assess the relative success
    of the parties positions on the application and to take into account the
    significance of any offers to settle.

[8]

The appellant is entitled to her costs on appeal in the amount of $13,000. 
    She largely prevailed on the main issue, namely, whether spousal support and
    insurance benefits should be terminated or reduced, although she did take the
    position that there should be no reduction to the original support order.

K.M. Weiler J.A.

Paul Rouleau
    J.A.

L.B. Roberts
    J.A.


