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Can I appeal this cost order? Judge says 'mixed success' but awards her full costs

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  • Can I appeal this cost order? Judge says 'mixed success' but awards her full costs

    So, even though the Judge claims both parties had mixed success, she goes on to award my ex her entire court costs.

    Both of us agreed to cap our court fees to $70k, but the Judge goes on to state:

    Entitlement to Costs

    The Applicant sought an order for the Respondent to have supervised parenting time on Saturdays only, without any overnights. The Respondent sought an order for equally- shared parenting time and no supervision. (dear reader: please note that my offer to settle had every other weekend with overnights). Although neither party achieved exactly what they requested, I consider the result to be closer to the Applicant’s position. That is, although more than the Applicant requested, the Respondent’s parenting time is limited and largely supervised. I made an exception for parenting time exercised out of the house, but this did not include overnights. Further, my conclusions on the parenting schedule were largely driven by my findings regarding family violence, which were in the Applicant’s favour.

    The Applicant was also successful with respect to decision-making. While the Respondent sought shared decision-making )Please note in my offer to settle I had sole custody to her without any consultation. So I'm not sure why she's not mentioning that, the Applicant succeeded in obtaining the ability to make decisions affecting the children after consultation with the Respondent.

    The financial issues were less important in this case. Still, the Applicant was successful in her claim that income should be imputed to the Respondent. She was unsuccessful on many but not all of the s. 7 expenses she claimed. With respect to the equalization payment, she claimed a payment of $77,327 and was awarded a payment of $19,434.

    Taking all my conclusions at trial into account, but particularly my conclusions with respect to the parenting order, I consider the Applicant to have been overall the successful party and entitled to her costs.

    "Overall, I consider the parties to have been approximately equally reasonable in their offers to settle. The Applicant’s position on parenting time was overly restrictive compared to the final order but the Respondent’s position on parenting time was overly lenient in that he did not include any supervision. The Applicant was comparatively more successful in her offer on the financial issues, but it is difficult to consider this in isolation given that her offer was non-severable. The result of this is that success was somewhat mixed when considering the parties’ offers to settle."

    "Taking all the above factors into account, I find that the Applicant is entitled to her costs in the amount of $60,000, which is reduced from the cap agreed-to by the parties. The reduction reflects her somewhat mixed success compared to the offers to settle. On the other hand, the reduction is not significant because of the importance of the issues and the fact that the capped costs were already reasonable. Therefore, the Respondent shall pay costs of $60,000 to the Applicant."

    My question is there a case to appeal this cost decision?

  • #2
    Probably not.

    Mixed success doesnt mean no success. The case should not have gone to trial. You had serious family violence allegations against you and you lost on almost all of what you wanted. Not to mention she was only unsuccessful in her section 7 expenses.

    Comment


    • #3
      Agree with Rockscan. In addition you will need a family lawyer who also has specialized training to as an appeals lawyer. Not every family lawyer can launch an appeal for you. The retainer alone for a qualified appeals lawyer will cost you $15-20,000.00! So in other words you could end up spending close to the $60,000 you owe your ex just to appeal the matter. If you lose you will be significantly worse off financially. Even if you win you may still be out the $60,000 in legal fees and no better off. Cost benefit analysis does not show it to be a smart thing to do at this point.

      Comment


      • #4
        Remember there is a value to the issue. You are putting more weight on the arguments that you were successful on versus what the other party was successful on.

        Sole custody and majority access vs joint custody. That is where the bulk of the legal time was spent and you were unsuccessful on those topics and litigated and lost. Weighted more in her favor on a very expensive topic. So you paid the price.

        As well, if you are racking up 70K in legal fees why are you coming to this site for basic information? You should have a top tier lawyer at those numbers.

        Comment


        • #5
          Originally posted by Tayken View Post
          As well, if you are racking up 70K in legal fees why are you coming to this site for basic information? You should have a top tier lawyer at those numbers.
          More than likely because his top tier lawyer told him it wasnt possible and he disagrees.

          I also note the judges comment about the fees being capped and therefore why they decided in favour of the applicant. The actual fees were probably close to 150,000 which would mean if there was no cap she would have been given half that at 75. Therefore the 60 was reasonable based on her success at trial.

          Comment


          • #6
            Originally posted by Tayken View Post
            Remember there is a value to the issue. You are putting more weight on the arguments that you were successful on versus what the other party was successful on.

            Sole custody and majority access vs joint custody. That is where the bulk of the legal time was spent and you were unsuccessful on those topics and litigated and lost. Weighted more in her favor on a very expensive topic. So you paid the price.

            As well, if you are racking up 70K in legal fees why are you coming to this site for basic information? You should have a top tier lawyer at those numbers.
            But my offer to settle was giving her sole custody without need to consult me. In the end she got sole custody WITH consultation with me.
            In judge I asked for joint. So technically I won?

            Comment


            • #7
              Originally posted by rockscan View Post
              More than likely because his top tier lawyer told him it wasn�t possible and he disagrees.

              I also note the judge�s comment about the fees being capped and therefore why they decided in favour of the applicant. The actual fees were probably close to 150,000 which would mean if there was no cap she would have been given half that at 75. Therefore the 60 was reasonable based on her success at trial.
              Who cares if it was 150k? It was CAPPED at 60k, which means that should be starting point. Is that not an important consideration? Even if she won, she should get half of 60k, not 150k?

              Comment


              • #8
                Both of us agreed to cap our court fees to $70k
                She got 60K? which is under the cap. I don't understand your argument. I do not think your interpretation of the maximum she could claim is capped at 70K, but rather than maximum she could be awarded.

                In any event an appeal of costs is not likely to be successful, and if you're appealing costs alone you need leave (permission) of the appeals court to do it.

                Comment


                • #9
                  Can I appeal this cost order? Judge says 'mixed success' but awards her full costs

                  You are grasping here. On the whole she was more successful and her success may have been reviewed without your offer in mind. Judges dont just say oh hey the offers look good, but you won because yours was better. They also look at reasonableness, need for trial and whether it could have been settled. Based on what you have posted during your entire time here, you werent reasonable at all. You continued to push for trial and then lost. The things she won were not all equal. It looks like what she did win on was significant vs your little offers. And as for the cap, the judge doesnt say we will split it, he saw it as you capped the amount you could claim at 60 and decided she was entitled to 60.

                  Get over yourself. You were a bad litigant with a terrible case. All your answers do is cement the view that you are an abusive control freak intent on getting your way.

                  Comment


                  • #10
                    I do not understand either.
                    Were the parts of helenJ's offer server-able?


                    They didn't get full costs. They got 60K of the 70K cap and I read that full costs were 150K. In the first post you left this part out completely.


                    The judge said violence was a factor so that hurt you and what percentage of the trial was based on that?

                    Comment


                    • #11
                      Originally posted by terryfyde View Post
                      I do not understand either.
                      Were the parts of helenJ's offer server-able?


                      They didn't get full costs. They got 60K of the 70K cap and I read that full costs were 150K. In the first post you left this part out completely.


                      The judge said violence was a factor so that hurt you and what percentage of the trial was based on that?

                      Where did you read this?

                      Comment


                      • #12
                        Originally posted by blinkandimgone View Post
                        Where did you read this?

                        Upon a reread I see this poster was being creative instead of factual, my mistake for getting mixed up. I don't know what the fees were:


                        Originally posted by rockscan View Post
                        More than likely because his top tier lawyer told him it wasn�t possible and he disagrees.

                        I also note the judge�s comment about the fees being capped and therefore why they decided in favour of the applicant. The actual fees were probably close to 150,000 which would mean if there was no cap she would have been given half that at 75. Therefore the 60 was reasonable based on her success at trial.

                        Comment

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