Tauber v. Tauber [Indexed as: Tauber v. Tauber]

51 O.R. (3d) 81

[2000] O.J. No. 3355

Docket No. C31593

Court of Appeal for Ontario

Carthy, Rosenberg and O'Connor JJ.A.

September 13, 2000

Civil procedure -- Costs -- Family law proceedings -- Parties seeking clarification of statements about costs in reasons for judgment in child support case -- Clarification provided -- Family Law Rules, O. Reg. 114/99, rules 18, 24(1) -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 49.

Following the release of the reasons for judgment, the court was asked to reopen the appeal to vary the costs order. Further submissions were received from the parties indicating that there might be some confusion about a statement made about costs orders in the reasons for judgment and the impact of the judgment in light of the Family Law Rules, O. Reg. 114/99.

Held, the application to reopen the appeal should be dismissed.

The statement in the reasons that "ordinarily the paying spouse wishing to challenge the presumptive assessment should be required to pay for the exercise" is limited to cases where the income of the paying spouse "vastly exceeds $150,000" and there is a "huge disparity in the ability of the parties to pay the costs of the litigation". It also only applies to so much of the costs as are attributable to the child support issue. The statement is subject to Rule 49 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and subject to the trial judge concluding that the payee spouse has not acted unreasonably. The reference to Rule 49 must be read to include reference to rule 18 of the Family Law Rules, where those rules apply.

With respect to an apparent inconsistency between the statement set out in the reasons and rule 24(1) of the Family Law Rules, this case was heard before those rules came into effect and was heard in the Superior Court of Justice, not the Family Court of the Superior Court. The relationship between the presumption set out in rule 24(1) and the statement concerning costs in this case should be left to another day.

APPLICATION to reopen an appeal.

Rules and regulations referred to

Family Law Rules, O. Reg. 114/99, rules 18, 24(1)
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 49

Gerald P. Sadvari, for appellant. Rodica David, Q.C., and Michael Charles, for respondent.

[1] BY THE COURT: -- Following the release of the reasons for judgment in this case reported 2000 5747 (ON CA), 48 O.R. (3d) 577, counsel for the appellant requested an opportunity to make further submissions concerning the costs order. We agreed to receive further written submissions from the parties. Counsel for the parties have reviewed the factors that should be taken into account in assessing costs, and in particular have again reviewed the offers to settle and the conduct of the parties during the litigation. We have not been persuaded that we should reopen the appeal or vary the costs order.

[2] However, it is apparent from the submissions of both counsel that there may be some confusion about a statement made about costs orders in the reasons for judgment and the impact of the judgment in light of the Family Law Rules, O. Reg. 114/ 99.

[3] The reasons for judgment make it clear that this was an exceptional case raising "special concerns for child support . . . and costs" [para. 2]. The statement in the reasons that "ordinarily the paying spouse wishing to challenge the presumptive assessment should be required to pay for the exercise" is limited to cases where the income of the paying spouse "vastly exceeds $150,000" [para. 50] and there is a "huge disparity in the ability of the parties to pay the costs of the litigation" [para. 53]. It also only applies to so much of the costs as are attributable to the child support issue.

[4] Further, as set out in paras. 51 and 62 of the reasons, this statement is subject to Rule 49 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and subject to the trial judge concluding that the payee spouse has not acted unreasonably. The reference to Rule 49 must now be read to include reference to Rule 18 of the Family Law Rules, where those rules apply. Finally, to make an obvious point, the statement itself is that "ordinarily" in these exceptional cases the paying spouse should pay the costs of the child support litigation. A court considering a case of this kind is not precluded from taking into account other relevant factors. However, for the reasons expressed in the decision, in these exceptional cases ordinarily the paying spouse should pay the costs of the payee spouse.

[5] In his written submissions, counsel for the appellant has pointed out that the statement set out in the reasons appears to be inconsistent with rule 24(1) of the Family Law Rules. Those rules came into force on September 15, 1999 and apply to all family law cases in the Family Court of the Superior Court of Justice and in the Ontario Court of Justice. This case was heard prior to September 15, 1999 and, in any event, was heard at Toronto in the Superior Court of Justice, not in the Family Court of the Superior Court. We would leave to another day the relationship between the presumption set out in rule 24(1) and the statement concerning costs in this case, when the court has the benefit of complete argument and the Family Law Rules have application.

[6] As to the circumstances of this case, having reviewed the conduct of the parties as set out in the materials, we are satisfied that Mrs. Tauber acted reasonably. We have also reviewed the various offers to settle. Mr. Tauber's best offer for child support was $6,000. This was far below the amount required under the law as it stood at the time of the trial and is below the amount ordered to be paid pending appeal by Laskin J.A. and pending the new trial by this court. We have not been persuaded that we should vary the costs order, nor that the matter should be remitted to the trial judge to deal with on the new trial.

[7] We have also not been persuaded that we should accede to the request of counsel for Mrs. Tauber and revisit the decision to only award party-and-party costs or the decision that she only have 80% of her costs at trial.

[8] Accordingly, the application to reopen the appeal is dismissed with costs payable on a party-and-party basis.

Application dismissed.