Court of Appeal for Ontario
Date: 2025-07-04
Docket: M56090 (COA-24-CV-0436)
Judge: David M. Paciocco (Motions Judge)
Between:
O.K.
Applicant (Appellant/Responding Party)
and
M.H.
Respondent (Respondent/Moving Party)
Appearances:
Ian C. Matthews, for the moving party
No one appearing for the responding party
Heard: 2025-07-02
Endorsement
Background
[1] The responding party, O.K., brought a family law appeal from an order made against him on September 27, 2024, which required him to pay child support and non-taxable spousal support. On June 11, 2025, that appeal was administratively dismissed pursuant to a May 6, 2025 order made by Roberts J.A., sitting as a single judge of this court (the “Roberts Order”). The Roberts Order allowed a motion brought by the moving party, M.H., seeking three months’ payment of support arrears from O.K., as well as security for costs for the family law appeal. The non-payment of support played a material role in the security for costs order.
[2] In response to the Roberts Order, O.K. brought an application for a panel review. He also brought a motion before Thorburn J.A. to stay the Roberts Order pending that review (the “Thorburn Motion”). When Thorburn J.A. dismissed this motion, she left the issue of the costs before her to be settled by the panel conducting the review.
The Motion
[3] Now that the family law appeal has been administratively dismissed, M.H. brings this motion for:
- an order awarding her costs in the Thorburn Motion in the amount of $6,599.31, as well as costs of this motion in the amount of $6,599.31;
- an order that the $3,200 costs award made in the Roberts Order, and the costs awards ordered in this motion (the “costs orders”), each constitute, in their entirety, “support orders” within the meaning of s. 1(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, as amended (the “FRSAEA”), and are thereby enforceable as support orders by the Director, Family Responsibility Office;
- an order in accordance with FRSAEA, s. 10(1), issuing a support deduction order in respect of the total amounts specified in the costs orders;
- an order that unless the order is withdrawn from the office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed; and
- an order that this order bear interest at the post-judgment rate of 4.00 per cent per year effective from the date of this order, and that a payment in default bears interest only from the date of default.
Notice and Absence of Responding Party
[4] O.K. was provided with notice of this motion through a dependable email address by his then solicitor, Michael Tweyman, who has since been removed from the record. O.K. did not appear today on this matter, and I therefore proceeded in his absence. I am persuaded on the evidence before me that each of the orders requested should be made and I direct that the draft order, provided by the moving party, is to issue. It will be furnished to the Registrar along with this order.
Reasons
[5] My reasons are as follows.
Costs Award
[6] With respect to the first requested order, since the panel review will not occur now that the underlying family law appeal has been dismissed, it is appropriate that I resolve the outstanding costs award issues in these proceedings. I am persuaded that M.H. is entitled to the costs of the motion that was before Thorburn J.A. She was successful in those proceedings and there is no basis for denying her the benefit of a costs award. Although her representation at that hearing was pro bono, this is not a prohibition on making a costs award: 1465778 Ontario Inc. v. 1122077 Ontario Ltd., para 34. This is an appropriate case for making such an order. First, making that order in favour of M.H. will reinforce that non-pro bono parties are not free to abuse the court system contrary to the interests of those who cannot fully retain counsel without fear of costs repercussions: 1465778 Ontario Inc., para 35. Second, a costs order in favour of M.H. will promote access to justice by encouraging lawyers to undertake pro bono work in future cases given the prospect that they may receive payment from the opposing party, where warranted: 1465778 Ontario Inc., para 35. As well, the costs amounts sought relating both to the Thorburn Motion and this motion are set on a partial indemnity basis and are fair and reasonable.
Costs as Support Orders
[7] With respect to the second requested order, s. 1(1) of the FRSAEA defines “support order” as including “(g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance”. There is no impediment to costs orders made by this court in family law proceedings from being enforceable as spousal support pursuant to FRSAEA, s. 1(1): Wildman v. Wildman, para 65. The Roberts Order involved a request to enforce support orders, and the security for costs order that was made was based, in part, on O.K.’s failure to comply with those support orders. The costs order made in connection with the Roberts Order is therefore a costs order “in relation to support or maintenance”. It is to be treated as a “support order”. The costs of the Thorburn Motion are also “in relation to support or maintenance” since the motion before Thorburn J.A. dealt with the payment of support and maintenance. The costs order I am making relating to the Thorburn Motion is therefore also to be treated as a support order within the meaning of s. 1(1). The remaining relief in the motion now before me is, of course, incidental to those two orders, such that the costs of this motion also arises “in relation to support or maintenance”, and so it too is to be treated as a “support order”.
Support Deduction Order
[8] A court making a support order is obliged by FRSAEA, s. 10(1) to make a “support deduction order”. The costs orders made by this court are each a “support order” within the meaning of FRSAEA, s. 1(1). Therefore, the third requested order will also be made. Those support deduction orders are to be made, pursuant to s. 11(1), in the form prescribed by the regulations. The required support deduction order is to be made by the office of the Registrar of this court, as required by FRSAEA, s. 11(4) and it is to be filed promptly with the Director’s office, pursuant to s. 12. I note that the moving party has completed the requisite schedule. It is to be found in the Motion Record of the Moving Party for motion M56090, at pp. 71-72 of 81.
Enforcement and Interest
[9] The fourth order requested relating to the enforcement by the Director, Family Responsibility Office is also to be made. It is recommended to be used in support orders by Recommended Standard Terms for Support Orders, O. Reg. 454/07, s. 6. Similarly, the fifth order requested is also to be made. It is recommended by s. 5 of O. Reg. 454/07.
“David M. Paciocco”
