





CITATION:
Stewart v. Crane, 2011 ONCA 758



DATE: 201111130



DOCKET: C52554



COURT OF APPEAL FOR ONTARIO



MacPherson, Simmons and Blair JJ.A.



BETWEEN



Norma Stewart



Applicant/Respondent



and



Joe Crane



Respondent/Appellant



Patrick Di Monte, for the appellant



Marie G. Michaels, for the respondent



Heard & released orally:
November 25,
          2011



On appeal from the judgment of Justice Sherrill M. Rogers of
          the Superior Court of Justice dated July 16, 2010.



ENDORSEMENT



[1]

Rogers J. ordered Mr. Crane to pay Ms. Stewart costs in the amount of
    $22,263.24 plus HST.  The order was made following the disposition of jointly
    tried issues arising out of a
Partition Act
claim brought by Mr. Crane
    in relation to the couples former co-habited property and a
Family Law Act
application brought by Ms. Stewart.

[2]

In addition to the home, the issues raised included custody, child and
    spousal support (and the related issue of imputed income), interest in certain
    personal property, common liability for debts and a claim by Ms. Stewart to an
    interest of approximately $94,000 of investments owned by Mr. Crane.

[3]

Although there is a debate about the extent to which Ms. Stewart
    prevailed, the trial judge clearly viewed her to be the successful party. 
    Rogers J. awarded costs on the basis that she had been 80% successful and
    applied that percentage to an amount that represented full recovery for the
    matters relating to the proceedings because she was of the view that Mr. Crane
    should have accepted an earlier offer to settle. Mr. Crane seeks to attack both
    of these determinations and adds that there should either no costs awarded or,
    if so, that they should be awarded to him.

[4]

We reject these submissions.

[5]

A cost award is a discretionary order in terms of both the amount to be
    paid, and by whom, and is subject to a very limited appellate review.  The
    court will only interfere if the trial judge has made an error in principle or
    if the cost award is plainly wrong: see
Hamilton v. Open Window Bakery Ltd
.,
    [2004] 1 S.C.R. 303 at para. 27, citing the decision of this court in
Duong

v. NN Life Insurance Co. of Canada
, (2001) 141 O.A.C. 307 at para. 14.

[6]

Here, there was ample support on the record for the trial judges 80%
    success conclusion and she was in a much better position to make that call
    than are we.  We see no basis to interfere.  There was ample support as well for
    her view that it was appropriate to take the earlier offer to settle into
    account: see Family Law Rules 18(16) and 24(5)(b).  We can find no error in
    principle on the part of the trial judge, nor do we think that the decision was
    wrong, much less clearly wrong.

[7]

Leave to appeal is therefore granted but the appeal is dismissed for the
    foregoing reasons.  Costs to the respondent are fixed in the amount of $5,000
    all inclusive.

J.C.
    MacPherson J.A.

J.M.
    Simmons J.A.

R.A.
    Blair J.A. 


