DATE: 2003-01-07

DOCKET: C36273

COURT OF APPEAL FOR ONTARIO

RE: ANJA MARIA DRYGALA (Petitioner/Respondent) – and - ANTHONY JOHN PAULI (Respondent/Appellant)

BEFORE: LASKIN, BORINS and GILLESE JJ.A.

COUNSEL: David A. Sloane for the appellant Steven F. McMurray for the respondent

HEARD: April 11, 2002

On appeal from the judgment of Justice Allan C.R. Whitten of the Superior Court of Justice dated April 4, 2001.

E N D O R S E M E N T

[1] Reasons for decision in this matter were released on October 2, 2002 [reported 2002 41868 (ON CA), [2002] O.J. 3731]. Counsel sought and received permission to make further written submissions on three matters: disposition of a $6,000 payment into court made by the appellant, the validity of the costs award made at trial and a determination of costs of the appeal.

The Payment Into Court

[2] Before the appeal was heard, the respondent brought a motion to stay the appeal until the appellant had honoured his child support obligation or, alternatively, requesting security for costs of the appeal.

[1] On March 15, 2002, Justice Laskin granted a stay of the appeal on these terms: “The hearing of Mr. Pauli’s appeal is stayed until he pays $6,000 into court on account of his child support obligation or until further order of this court.”

[2] In accordance with the terms of the order of March 15, 2002, the $6,000 payment into court by the appellant shall be paid out to the respondent to be applied first to arrears of child support and, if any funds remain, the remaining funds shall be applied against the costs award of $1,500 made by this court in favour of the respondent in connection with the stay motion.

Costs Award at Trial

[3] Whitten J. gave three reasons for awarding the respondent costs of the trial fixed in the amount of $15,000 plus GST and disbursements.

[4] He first noted that the parties enjoyed “mixed success” at trial. In our view, the respondent enjoyed greater success at trial than did the appellant as she was awarded sole custody of the child and child support. The appellant was awarded less generous access than that which he had sought. He had not disputed the respondent’s claim to custody but had maintained throughout that he had no obligation to pay child support while attending university.

[5] On appeal, the amount of child support to be paid by the appellant was reduced. After taking that reduction into consideration, in our view, the respondent remains the more successful of the two parties as she remains entitled to child support.

[6] Whitten J. found that the offer of the respondent more closely approximated the result at trial than did the offer of the appellant. This remains so after factoring in the result of the appeal, as the child support ordered is higher than that proposed by the appellant in his offer to settle.

[7] Whitten J. also found that the appellant’s position on child support was “rather unrealistic”. We share his view. It is unrealistic for a parent with a substantial income and no debt to take the position that he need not pay child support. The appellant maintained this position on appeal, arguing that he should pay no support or, alternatively, that any support ordered be for a nominal sum only.

[8] After taking into consideration the results of the appeal, the reasons given by the trial judge for the cost award remain valid. We see no basis for interfering with the costs award at trial.

Costs of the Appeal

[9] Costs of the appeal are awarded on a partial indemnity basis to the respondent, fixed in the amount of $9,500 plus GST and disbursements. Our reasons for this award are as follows.

[10] Success on appeal was mixed. While the appellant achieved a reduction in the quantum of child support, the respondent remained successful in obtaining an order for child support. (The matters of custody and access were not appealed.)

[11] The matter of costs in family matters is approached somewhat differently than in other civil litigation. Discretionary factors including the ability to pay and conduct of the parties prior to the litigation can play a more significant role. (Tauber v. Tauber, 2000 5747 (ON CA), [2000] 48 O.R. (3d) 577, Andrews v. Andrews (1980), 1980 1913 (ON CA), 32 O.R. (2d) 29).

[12] In the case at hand, based on the sworn financial statements, the appellant has a greater ability to pay than does the respondent. In this regard we note that the appellant disclosed expenses of over $48,000 per year and that he is debt-free.

[13] In terms of conduct prior to the commencement of litigation, it is relevant to note that the appellant failed to provide financial support for his daughter despite a significant income stream and absence of debt. Whitten J. found that the appellant had made only two payments of child support prior to trial. The appellant has not yet voluntarily made any payments on account of child support during litigation despite the order of the court below.

Enforceability

[14] As directed by Whitten J. in his endorsement of April 4, 2001, the costs award at trial is to be enforced in its entirety by the Family Responsibility Office.

[15] Similarly, as contemplated by section 1(1) of the Family Responsibility and Support Arrears Enforcement Act, 1986, S.O. 1986, c. 31, as am., costs on this appeal are a “support order,” and are fully enforceable by the Family Responsibility Office.

“John I. Laskin J.A.”

“S. Borins J.A.”

“E.E. Gillese J.A.”