2013 ONSC 4366, 2013 ONSC 4366

CITATION: Crisp v. Crisp, 2013 ONSC 4366 DIVISIONAL COURT FILE NO.: 142/13 DATE: 2013/06/25 SUPERIOR COURT OF JUSTICE – ONTARIO RE: William Owen Crisp, Moving Party (Respondent in Application) AND: Lesley Joan Crisp, Respondent (Applicant in Application BEFORE: Herman J. COUNSEL: Dani Z. Frodis, for the Moving Party (Respondent in Application) Karen Ballantyne, for the Respondent (Applicant in Application) HEARD: June 24, 2013 ENDORSEMENT [1] Mr. Crisp moves for leave to appeal the costs order made by Penny J., dated March 8, 2013, requiring him to pay Ms. Crispcosts in the amount of $32,500.

This amount represents 50% of Ms. Crisp’s partial indemnity costs. [2] Mr. Crisp submits that the trial judge erred in fact and in law by materially misapprehending or failing to consider key factsand findings when deciding costs. [3] The gist of the leave motion is that the trial judge erred in his determination that, although success was divided, Ms. Crispwas the more successful party and therefore entitled to costs. In particular, Mr. Crisp submits that the trial judge erred when heconcluded that Ms. Crisp was more successful on the issue of an overpayment.

The trial judge’s reasons on costs [4] The trial judge determined that Ms. Crisp was the more successful party on the major issues having regard to the parties’positions at trial and the outcome. He noted in particular that: income was imputed to Mr. Crisp substantially in excess of his claimedincome; Mr. Crisp sought recovery of over $140,000 of alleged overpayments of support but was awarded about $25,000; Mr. Crispsought termination of all spousal support obligations, while spousal support was ordered on an ongoing basis; and Ms.

Crisp wassuccessful in a post-trial dispute over whether spousal support arrears should be calculated net of tax or not. Test for leave to appeal of a costs decision [5]

Section 133(

b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that leave to appeal is required where the onlymatter being appealed is costs that are in the discretion of the court. [6] Leave to appeal a costs decision should only be granted in an obvious case, where there are “strong grounds upon which theappellate court could find that the judge erred in exercising his discretion” (Brad-Jay Investments Ltd. v.

Szijjarto (2006), (ON CA), 218 O.A.C. 315 (C.A.) at para. 21, leave to appeal to S.C.C. refused). [7] A court should only set aside a costs award on appeal if the trial judge made an error in principle or the award is clearlywrong (Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 , [2004] 1 S.C.R. 303 at para. 27). [8] The test for leave to appeal a costs award in a family proceeding was articulated by Aston J. in Johanns v. Fulford, [2011]O.J.

No. 4071 (S.C.J.) at para. 2, as follows: (i)Awards of costs, while a matter of judicial discretion, can be reviewed by an appellate court on the basis that the award is made on awrong principle, on a misapprehension of significant facts, or in a non-judicial manner; (ii)A person seeking leave to appeal a decision regarding costs faces a heavy onus requiring strong grounds; (iii)Having regard to the parameters of judicial discretion, leave to appeal will be granted if: (

a) the discretion is not exercised on thefacts of the case; (

b) the discretion is exercised on facts wholly unconnected with the cause of action; or (

c) the judgment has proceededon some erroneous principle. [9] While the test is somewhat differently articulated in Johanns than in Brad-Jay and Open Window Bakery, it is not materially

different in substance. Application of the test [ 10 ] It is undisputed that success was divided. [ 11 ] In Mr. Crisp’s submission, it is clear that he was the more successful party on the major issues: the judge determined that Ms. Crisp owed him an overpayment; ongoing support was reduced; and his proportion of s. 7 expenses was reduced. [ 12 ] Ms. Crisp, on the other hand, submits that she was the more successful on the major issues: the amount of the overpayment that was ordered was significantly lower than the amount Mr.

Crisp had proposed, and was closer to the amount she had proposed; support was determined on the basis of an income imputed to Mr. Crisp; and she was successful in the determination of the post-trial issues. [ 13 ] Mr. Crisp’s main point was that the trial judge erred with respect to what he submits was the central issue in the case, that is, whether Ms. Crisp owed him an overpayment. While the amount ordered might have been arithmetically closer to Ms. Crisp’s claim, the critical point is that he was awarded an amount for overpayment, while Ms. Crisp had claimed that he owed money to her. [ 14 ] Ms.

Crisp disagrees that the trial judge erred with respect to his assessment of success on the overpayment issue. The fact is that the amount ordered was closer to the amount she had proposed. Furthermore, in her submission, the issue of Mr. Crisp’s income was an equally important issue, an issue upon which she was successful. [ 15 ] The awarding of costs is a discretionary matter. The determination of who is the more successful party in a case of divided success is a matter of judgment and an exercise of discretion.

It was particularly complicated in this case where there were multiple issues, numerous offers to settle, positions which changed over time, and post-trial issues. Whether Mr. Crisp was more successful because he received an overpayment or Ms. Crisp was more successful because the amount ordered was closer to the amount she had proposed, is an exercise of discretion. So too is the decision as to how much weight should be given to the various issues.

The trial judge is generally in the best position to weigh these matters in order to determine relative success. [ 16 ] In the circumstances of this case, I am unable to conclude that the trial judge made an error in principle, misapprehended significant facts or made a costs award that was clearly wrong. [ 17 ] The motion for leave to appeal is therefore dismissed. [ 18 ] The parties agreed that the successful party would receive costs of $3,000. Costs are therefore awarded to Ms. Crisp of $3,000, inclusive of HST and disbursements. Herman J. Date: June 25, 2013