



COURT OF APPEAL FOR ONTARIO

CITATION: Halliwell v. Halliwell, 2017 ONCA 506

DATE: 20170619

DOCKET: C61692

Gillese, Pepall and Roberts JJ.A.

BETWEEN

Toni Halliwell

Applicant (Respondent)

and

Martin Halliwell

Respondent (Appellant)

Deborah Ditchfield, for the appellant

Robert Bickle, for the respondent

Heard: October 17, 2016

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 appellants 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 appellants partial success on appeal, the
    result is still substantially better than the appellants 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 appellants 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 appellants 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.


