Court of Appeal for Ontario

Citation: Clark v. Clark, 2014 ONCA 175

Date: 20140305

Docket: M42120, M42106, M42981, C56511

Judges: Cronk, Rouleau and Tulloch JJ.A.

Between:

Georgia Anne Clark Applicant (Respondent in Appeal)

and

Gregory Lawrence Clark Respondent (Appellant)

Counsel: Howard J. Feldman, for the appellant William H. Abbott and Aaron M. Mastervick, for the respondent

Heard: October 17, 2013

On motions: (1) for review of the chambers order of a single judge of the Court of Appeal for Ontario, dated January 11, 2013, and associated relief; (2) for leave to appeal and, if leave be granted, on appeal from the costs order of Justice Clayton J. Conlan of the Superior Court of Justice, dated March 27, 2012; and (3) to quash the said appeal.

Cronk J.A.:

I. Introduction

[1] There are several matters before this court arising from this protracted matrimonial litigation.

[2] First, the proposed appellant, Gregory Lawrence Clark ("Gregory"), moves: (1) to review the chambers order of Doherty J.A. of this court, dated January 11, 2013 (the "January Order"), granting Gregory an extension of time, on terms, to file an application for leave to appeal and a notice of appeal from the costs order of Conlan J. of the Superior Court of Justice, dated March 27, 2012 (the "Costs Order"), both by January 21, 2013, and denying all other relief sought by Gregory; (2) for leave to file fresh evidence concerning his review motion; (3) for an order granting him leave to appeal the Costs Order; and (4) for an order validating the form of security for costs provided by him in alleged compliance with the January Order.

[3] Second, if leave to appeal the Costs Order is granted, Gregory appeals from the Costs Order.

[4] Third, the respondent, Georgia Anne Clark ("Georgia"), moves for an order quashing the appeal of the Costs Order on the grounds that Gregory failed to comply with: (1) that term of the January Order requiring, as a condition of the time extension granted thereunder, that he post security in the amount of $25,000, on or before February 1, 2013, for the costs of the proposed appeal from the Costs Order; and (2) two prior court orders, as described in further detail later in these reasons, namely: (a) that part of the order of Snowie J. of the Superior Court of Justice, dated October 22, 2002, requiring Gregory to fund a registered educational savings plan ("RESP") for the children of the marriage; and (b) the order of Edwards J. of the Superior Court of Justice, dated April 26, 2013, requiring Gregory to produce a statement showing the balance contained in the children's RESP.

II. Background Facts

[5] It is unnecessary for the disposition of the matters now at issue before this court to set out the myriad background facts in detail. The following summary will suffice.

[6] The parties were married in February 1994 and separated on December 26, 1997. There are two children of the marriage: Courtney Amber Clark, born January 30, 1995, and Mackenzie Alexandra Clark, born April 21, 1996.

[7] On October 22, 2002, Snowie J. of the Superior Court of Justice granted a consent order in accordance with minutes of settlement concluded by the parties, addressing various issues relating to the children (the "Snowie Order"). Among other matters, the Snowie Order provided that: (1) custody of the children was to be joint, with access to Gregory at specified times; (2) Gregory was to pay $20,000 to Georgia on account of child support arrears; (3) no prospective child support was payable by either party, other than extraordinary expenses for the children under s. 7 of the Child Support Guidelines, O. Reg. 391/97 (the "Guidelines"), to be shared on a set pro-rata basis; (4) Gregory was to contribute the sum of $150 on a monthly basis to a RESP on behalf of the children; and (5) the parties were to exchange full releases respecting child support.

[8] Unfortunately, approximately six years later, litigation between the parties again erupted. In late-August 2008, Gregory brought a motion to change the Snowie Order, seeking full custody of Courtney, who was then 13 and one-half years old. In November 2008, Georgia initiated her own motion to change the Snowie Order. She sought orders for ongoing child support, child support retroactive to November 1, 2002, reinstatement of all child support arrears as at October 22, 2002 and payment of those arrears by Gregory, and payment by Gregory of his proportionate share of extraordinary expenses for the children under s. 7 of the Guidelines, among other relief.

[9] Three years later, on November 4, 2011, Gregory filed an amended change motion in which he sought orders granting him primary residence of both children of the marriage and retroactive and ongoing child support from Georgia, commencing in January 2011, in addition to other alternative relief.

[10] Georgia resisted Gregory's change motion. In her initial response to the motion, delivered in November 2011, she sought a final order for joint custody of the children of the marriage, with access to Gregory. She also sought an order for no base child support payable by either party or, in the alternative, an order varying the Snowie Order so as to require Gregory to pay the full arrears of child support owing as at October 2002, retroactive child support for the period November 2002 to December 2010, and his proportionate share of the children's extraordinary expenses under s. 7 of the Guidelines. In the further alternative, Georgia sought an order that she pay monthly child support to Gregory in accordance with the Guidelines. In early December 2011, Georgia filed a further response to Gregory's change motion, reiterating her November 2011 position on child support.

[11] On December 23, 2011, Gregory again amended his change motion, renewing his previous claims for primary residence of the children and ongoing child support from Georgia and seeking leave of the court, in certain circumstances, to advance set-off claims in respect of Georgia's alternative child support claims.

[12] Throughout this flurry of motions, neither party advanced a spousal support claim.

[13] In January and February 2012, a ten-day trial was conducted before Conlan J. of the Superior Court of Justice. At the commencement of trial, counsel filed a joint statement of agreed issues. The questions of liability for child support and s. 7 extraordinary expenses remained in dispute. However, the parties consented to an order providing for joint custody of the children with no designation of primary residence. Neither party raised any issue regarding spousal support. In the result, the remaining issues in dispute concerned child support (both retrospective and prospective), s. 7 extraordinary expenses, and the costs of a psychological assessment and counselling for the children.

[14] By orders dated February 3 and 14, 2012, the trial judge disposed of several substantive issues between the parties (collectively, the "Trial Judgment"). He dismissed Gregory's claim for child support, ordered support to be paid on account of s. 7 extraordinary expenses, and directed Gregory to pay 50% of the costs of the psychological assessment and the counselling fees incurred for the children. Thus, Georgia was largely successful at trial.

[15] The Costs Order was made on March 27, 2012. Under paragraph 1 of the Costs Order, the trial judge granted Georgia costs of the trial in the total amount of $185,000. Paragraph 2 of the Costs Order states:

The costs set out in paragraph 1, shall be paid as lump sum spousal support from the Respondent [Gregory] to the Applicant [Georgia] and shall be enforceable by the Family Responsibility Office.

[16] In January 2013, approximately 11 months after the Trial Judgment, Gregory moved before a single judge of this court for an extension of time to appeal the substantive aspects of the Trial Judgment and for leave to appeal the Costs Order. He also sought a stay of the Costs Order pending appeal.

[17] By the January Order, Doherty J.A. of this court granted Gregory's motion only in respect of the proposed appeal of the Costs Order. In all other respects, he dismissed Gregory's motion.

[18] The January Order required Gregory to serve and file a notice of motion for leave to appeal the Costs Order and a notice of appeal concerning the Costs Order, both by January 21, 2013. It also required him to post security for the costs of the appeal of the Costs Order, in the amount of $25,000, on or before February 1, 2013.

[19] Gregory filed his leave motion and notice of appeal on time. The parties dispute whether he properly complied with his further obligation under the January Order to post security for costs by February 1, 2013.

III. Motions to Review the January Order and to File Fresh Evidence in Support of the Review Motion

[20] At the conclusion of oral argument, this court dismissed Gregory's review motion, with reasons to follow. These are those reasons.

[21] Gregory attacked the January Order on various grounds. I see no merit to his challenge of the January Order.

[22] In detailed reasons dated January 11, 2013, Doherty J.A. held:

(1) apart from serving Georgia with a purported notice of appeal, Gregory did nothing to pursue an appeal in respect of the Trial Judgment for more than six months "after the latest possible deadline for filing a notice of appeal in respect of any of the orders made at trial" (at para. 12);

(2) there was no basis in the record before him upon which to find any explanation, "much less a reasonable explanation", for Gregory's inordinate delay in pursuing his proposed appeal, even assuming that he had any intention of doing so (at para. 14); and

(3) the absence of a bona fide intention to appeal, and of any explanation for the long delay in pursuing the appeal, told strongly against granting an extension of time within which to appeal the substantive aspects of the Trial Judgment (at para. 15).

[23] In addition, at paras. 15 and 16 of his reasons, Doherty J.A. held:

If I could be satisfied that the father [Gregory] had a meritorious appeal, particularly as it relates to matters affecting the children, I might be inclined to grant the extension despite the factors I have listed above.

I am, however, satisfied there is no merit to any of the grounds of appeal, apart from those relating to the cost order. The trial decision is fact-driven and well-reasoned. On my review of the trial judge's reasons, his findings are fully and amply supported by the evidence. I think it is also relevant that several of the proposed grounds of appeal involve parts of the trial judge's orders that award amounts far below the minimum amount required to establish this court's jurisdiction. Bluntly put, apart from the cost issues, there is no chance that this proposed appeal could succeed. I, therefore, refuse any extension of time to appeal any of the matters addressed in the trial judge's orders of February 3rd and February 14th.

[24] As appears from these holdings, Doherty J.A. addressed all the relevant factors governing the determination whether to grant an extension of time to appeal the substantive aspects of the Trial Judgment and properly applied those factors to the evidentiary record before him. Moreover, I see no error in his assessment of the merits of Gregory's proposed appeal from the Trial Judgment. Indeed, I agree with it.

[25] Accordingly, I see no basis for interference with Doherty J.A.'s discretionary decision to deny an extension of time to appeal from the substantive aspects of the Trial Judgment.

[26] Nor do I see any reviewable error in Doherty J.A.'s refusal to stay the Costs Order pending Gregory's proposed appeal of that order. On the record before Doherty J.A., it appeared that the Family Responsibility Office (the "FRO") had not been served with Gregory's motion and that, potentially, it was a proper party to an application to stay the Costs Order. The refusal of a stay order in these circumstances cannot be faulted.[^1]

[27] Gregory seeks leave to file fresh evidence on his review motion, in support of his renewed request that he be granted an extension of time within which to appeal from the substantive aspects of the Trial Judgment. The fresh evidence consists of: (1) affidavits sworn by the two children of the marriage, who are now approximately 18 years of age (Courtney) and 17 years of age (Mackenzie); and (2) extracts from the transcript of the costs hearing before Conlan J.

[28] In my opinion, the proposed fresh evidence does not meet the applicable test for the admission of fresh evidence at this stage: see R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. All the fresh evidence could have been obtained by Gregory prior to the motion before Doherty J.A. on the exercise of due diligence. In any event, the fresh evidence does not alter my conclusions regarding the substance of the January Order, set out above.

[29] Accordingly, the motion to review the January Order is dismissed.

IV. Motion for Leave to Appeal Costs Order

[30] In my opinion, leave to appeal from the Costs Order should be granted for three reasons. First, as I have already said, Gregory filed his leave motion and his notice of appeal in respect of the Costs Order within the timelines set by the January Order.

[31] Second, as Doherty J.A. noted at para. 17 of his reasons, Gregory made his objections to the Costs Order known shortly after the order was made.

[32] Third, as I will explain, I agree with Doherty J.A.'s conclusion, at para. 17 of his reasons, that there is some merit, albeit on a narrow issue, to the proposed appeal from the Costs Order. As a result, the interests of justice militate in favour of Gregory being allowed to pursue his appeal from the Costs Order.

[33] I would therefore grant leave to appeal the Costs Order.

V. Motion to Quash the Appeal

[34] I next address Georgia's motion to quash Gregory's appeal from the Costs Order.

[35] During oral argument, Georgia narrowed the focus of her motion to quash considerably. As argued, the main issue is whether Gregory properly complied with his obligation under the January Order to post security for the costs of the appeal from the Costs Order.

[36] Under the January Order, the posting of security for the costs of the proposed appeal, by February 1, 2013, was a pre-condition to Gregory's entitlement to seek leave to appeal the Costs Order and, if leave be granted, to appeal the Costs Order. Paragraph 20 of Doherty J.A.'s reasons in support of the January Order reads:

The extension of time to file is granted on the condition that the father will post security for the costs of the appeal in the amount of $25,000 on or before February 1, 2013.

[37] It appears that, through administrative error, the appeal from the Costs Order was set down for hearing, after perfection, without proof of Gregory's compliance with the security for costs term of the January Order. Be that as it may, the central issue on the motion to quash is whether Gregory, in fact, properly satisfied this term of the January Order.

[38] Gregory did not pay the monies ordered to be posted as security for costs into court, nor did he post a letter of credit in the required amount ($25,000) by February 1, 2013. Instead, on that date, Gregory's then counsel informed Georgia's counsel by email that Gregory's parents had furnished a second mortgage in the amount of $25,000, in Georgia's favour as second mortgagee, on a home owned by them in Mississauga, Ontario. The home in question was and remains Gregory's residence. Georgia's counsel was also informed that the second mortgage had been registered on title to the property. These events took place without prior notice to or any consultation with Georgia.

[39] Gregory took the position that the provision of this second mortgage satisfied his obligation under the January Order to post security for costs.

[40] Georgia disagreed. Among other objections to the mortgage, her counsel maintained that Georgia was not obliged to look to enforce any costs award that she might ultimately receive by being forced to deal with the first mortgagee on the property in question.

[41] Subsequently, Gregory proposed that the second mortgage be refinanced and that the proceeds of the refinancing be used to pay $25,000 into court in satisfaction of his obligation under the January Order to post security for the costs of the appeal from the Costs Order and, further, to pay $25,000 into the children's RESP. Gregory sought Georgia's consent to the discharge of the second mortgage to permit the proposed refinancing to proceed. Georgia declined to consent. She took the position that her consent to a discharge was not required since she never received or consented to the mortgage security and, in any event, this security was improper and inappropriate.

[42] Before this court, Georgia renews her objection to the form of security provided by Gregory. She argues that Gregory failed to post security for costs in proper form and that, as a result, his appeal from the Costs Order should be quashed by reason of his non-compliance with the January Order.

[43] In my view, there is much to commend Georgia's argument. The purpose of an order for security for costs is to ensure the existence of a ready source of funds to which a successful litigant may look to satisfy the costs of a proceeding that he or she has been compelled to incur. For this reason, security for costs is generally intended to be in a form that is readily accessible to the party ultimately awarded the costs of the relevant proceeding.

[44] The security afforded by a second mortgage on a residential property is neither immediately liquid, nor readily accessible by the affected mortgagee. Moreover, depending on the value of the secured property and the amount of the first mortgage, a second mortgage of this type may not afford reliable security for costs at all.

[45] Notwithstanding these considerations, when Gregory's actions are viewed in full context and in light of the language of the January Order, I am unable to conclude that he clearly failed to comply with the security for costs term of the January Order.

[46] Both the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and the Family Law Rules, O. Reg. 114/99 (the "FLRs") afford the courts a wide discretion to determine the amount and form of security for costs, as well as the time for paying the ordered security into court or otherwise giving the required security: rule 56.04 of the Rules of Civil Procedure; rule 24 (13-17) of the FLRs. In this fashion, both sets of rules contemplate that the form of security to be provided is to be crafted on a case-specific basis, to meet the particular exigencies of the case. Neither set of rules requires that security for costs be in the form of a payment into court or the posting of a letter of credit, in all cases.

[47] In this case, Doherty J.A.'s reasons concerning the posting of security for costs, quoted above, do not specify the form of the security to be provided. Moreover, paragraph 1 of the January Order, as issued and entered, expressly contemplates that the form of the ordered security remained to be determined. Paragraph 1 reads as follows:

THIS COURT ORDERS that the Appellant Father's Motion shall be dismissed save and except that the Appellant Father shall be and is hereby granted an extension of time to file an application for leave to appeal and a notice of appeal from the costs order of Justice Conlan dated March 27, 2012, to January 21, 2013, on the condition that the Appellant Father shall post security for costs of the appeal in the amount of $25,000.00 on or before February 1, 2013, without a determination at this time as to what form the security should be. [Emphasis added.]

[48] Thus, both the January Order itself and Doherty J.A.'s reasons in support of that order are silent as to the form of the security for costs to be furnished by Gregory. Although she was free to do so, Georgia did not move before Doherty J.A. or otherwise in this court to clarify and establish the form of the security for costs to be given by Gregory. Nor, as I have said, did she consent to the refinancing of the second mortgage security when proposed by Gregory in May 2013.

[49] In these somewhat unusual circumstances, I do not think that it can reasonably be said that the security eventually provided by Gregory fell short of satisfying a clear term of the January Order. Accordingly, I would not quash his appeal from the Costs Order on this ground.

[50] During oral argument, Georgia did not press her assertion, detailed in her factum on her motion to quash, that Gregory's appeal from the Costs Order should be quashed on the basis of his alleged non-compliance with the Snowie Order and the order of Edwards J. relating to the children's RESP, described above.

[51] This was prudent. The Snowie Order required Gregory to contribute a set amount (the total amount of $150 per month) to the children's RESP. Subsequent court orders confirmed this obligation, requiring Gregory to bring the RESP into good standing and to provide documentary proof of having done so. The April 2013 order of Edwards J. directed that Gregory provide Georgia with a statement from the relevant financial institution of the balance held in the children's RESP.

[52] Georgia concedes that Gregory eventually brought the RESP into good standing, although he was apparently late in doing so. Quite properly, her counsel also acknowledged during this hearing that Gregory provided the required statement of the balance held in the children's RESP in May 2013. Although Georgia maintains that Gregory has dissipated the funds held in the RESP for his own benefit, there is no judicial finding to that effect and, in my view, the admissible evidentiary record before this court does not clearly establish this claim.

[53] In all these circumstances, I would dismiss the motion to quash Gregory's appeal from the Costs Order.

VI. Motion to Validate Security

[54] At the commencement of oral argument of these proceedings, Gregory sought to file, on short notice, yet another motion before this court, which he termed a motion "deeming security to be valid". In his motion, Gregory sought, among associated relief, orders "validating" the second mortgage security given by his parents on the home occupied by him and "deeming" that the mortgage security satisfied his obligation under the January Order to post security for the costs of the appeal from the Costs Order.

[55] I have already concluded that Georgia's motion to quash the costs appeal should be dismissed. As I have indicated, I am not satisfied that Gregory can reasonably be said to have breached a clear term of the January Order regarding the posting of security for costs. Consequently, even assuming that Gregory's 'validation motion' is properly conceived and should be considered by this court notwithstanding its patent late filing, matters upon which I express no view, it is unnecessary for the disposition of Gregory's costs appeal to address the merits of the motion. I would therefore decline to do so.

VII. Appeal from the Costs Order

[56] I turn now to Gregory's appeal from the Costs Order.

[57] Gregory attacks the Costs Order on numerous grounds. I will consider his principal grounds of appeal in turn.

[58] At the outset, I note that this court's consideration of Gregory's appeal from the Costs Order must proceed in recognition of the high threshold for appellate interference with a trial judge's award of costs. Unless the challenged costs award is plainly wrong or tainted by an error in principle, there is no basis for interference by a reviewing court with a trial judge's discretionary costs award: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

(1) Enforcement of Costs Award as Lump Sum Spousal Support

[59] Gregory argues that the trial judge erred by granting Georgia costs enforceable by the FRO as lump sum spousal support when no spousal support was claimed at trial.

[60] There is no dispute that spousal support was not in issue before the trial judge. Nonetheless, he directed that his costs award in favour of Georgia "shall be paid as lump sum spousal support … and shall be enforceable by the [FRO]". In so doing, the trial judge indicated, at paras. 20 and 21 of his costs reasons:

As contemplated by section 1(1) of the Family Responsibility and Support Arrears Enforcement Act, 1986, as amended, the $185,000.00 in costs is to be enforced in its entirety by the Family Responsibility Office (FRO) as a lump sum spousal support Order.

Although Mr. Clark vigorously opposed that, Mr. Peticca [Gregory's former counsel] made no submissions on that issue, and more important, enforcement through the FRO is well justified in this case. The authority for such an Order can be found in the decisions of the Court of Appeal for Ontario in Drygala v. Pauli, 2003 CanLII 48241 (ON CA), 167 O.A.C. 274, Wildman v. Wildman, 2006 CanLII 33540 (ON CA), 215 O.A.C. 239 and Writer v. Peroff, 2006 CarswellOnt 6218. Mr. Clark is an experienced litigant who has a history of disobeying Court Orders (see paragraph 36 of Ms. Clark's written submissions on costs as well as my Reasons for Judgment). He has attempted to make himself "Judgment-proof". This is one of those cases where, to be anything more than illusory, the costs award must be enforced through the FRO.

[61] Under s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (the "Act"), costs awards that relate to support or maintenance may be enforced by the FRO. The English language version of s. 1(1)(g) of the Act states:

In this Act

"support order" means a provision in an order made in or outside Ontario and enforceable in Ontario for the payment of money as support or maintenance, and includes a provision for,

(g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance… [Emphasis added.]

[62] The French language version of s. 1(1)(g) of the Act is cast somewhat more narrowly than its English language counterpart. Whereas the latter version of the section refers to legal fees or other expenses "arising in relation to" support or maintenance, the French language version employs the phrase "découlant de" [i.e. 'flowing from'] a support or maintenance obligation. It reads:

Les définitions qui suivent s'appliquent à la présente loi.

<> Disposition contenue dans l'ordonnance qui est rendue en Ontario ou ailleurs et exécutoire en Ontario, et qui a trait au versement de sommes d'argent à titre d'aliments ou d'entretien. S'entend notamment de la disposition portant, selon le case, sur :

g) le versement d'intérêts ou le paiement de frais juridiques ou autres découlant de l'obligation alimentaire ou d'entretien. [Emphasis added.]

[63] Thus, under both official language versions of the section, by reason of the inclusion in the s. 1(1)(g) definition of "support order" of "the payment of legal fees or other expenses arising in relation to" or flowing from support or maintenance, costs awards concerning support or maintenance form part of a "support order" that is "enforceable in Ontario for the payment of money as support or maintenance". In Ontario, the FRO is the body responsible for the enforcement of such orders.

[64] The issue here is whether, spousal support not being at issue before him, the trial judge erred in characterizing the costs awarded to Georgia as lump sum spousal support for the purpose of triggering FRO enforcement of the Costs Order. In my opinion, this characterization of the costs awarded to Georgia is unsustainable for the following reasons.

[65] First, and most obviously, the costs awarded at trial did not arise, flow from or otherwise relate to a spousal support claim. Both entitlement to and the appropriate quantum of child support were live issues before the trial judge. However, the question of spousal support was simply not in play. It follows that describing the costs awarded to Georgia as "lump sum spousal support" is factually inaccurate. This description finds no support in the record before the trial judge.

[66] Second, the FLRs afford judges in matrimonial cases a wide discretion to make any order considered necessary for a just determination of the case, including an order for costs. At the time of the trial judge's costs disposition,[^2] rule 1(8) of the FLRs confirmed this broad discretionary authority in order to deal with a party's "failure to follow [the FLRs]" or failure to obey a court order. But nothing in rule 1(8) of the FLRs authorized a trial judge to deem costs awarded in a matrimonial case to be "in relation to support or maintenance" in a case where support or maintenance was never in issue. Similarly, rule 1(8) afforded no licence to trial judges to characterize costs in a matrimonial proceeding as relating to spousal support where spousal support was never in issue.[^3]

[67] The broad discretion to order costs conferred by rule 1(8) is concerned with entitlement to and the quantum of costs. As I read rule 1(8), it does not extend to characterizing the nature of costs awarded in a manner that is at odds with the substance of the proceeding in which the costs are awarded.

[68] Third, I do not read the cases cited by the trial judge as providing authority for characterizing costs awarded in a matrimonial proceeding as relating to spousal support when spousal support was neither claimed nor adjudicated upon in the relevant proceeding.

[69] The trial judge, at para. 21, quoted above, referenced three decisions of this court: Drygala v. Pauli, 2003 CanLII 48241 (ON CA), [2003] O.J. No. 3, 167 O.A.C. 274; Wildman v. Wildman (2006), 2006 CanLII 33540 (ON CA), 82 O.R. (3d) 401, 215 O.A.C. 239; and Writer v. Peroff, [2006] O.J. No. 4567 (S.C.), aff'd [2006] O.J. No. 4061. In each of these cases, this court upheld a trial judge's discretionary decision to order costs awarded in a matrimonial proceeding enforceable by the FRO as support. Indeed, in Drygala, at para. 16, the validity of an order making a costs award at trial enforceable in its entirety by the FRO was specifically affirmed.

[70] However, the validity of an FRO enforcement order per se is not challenged in this case. There can be no tenable suggestion, and Gregory does not argue, that the courts lack jurisdiction to direct that costs awarded in a matrimonial proceeding be enforceable as support or maintenance by the FRO. The Act provides otherwise.

[71] The critical question is whether the FRO enforcement mechanism can be triggered by characterizing the costs of a matrimonial proceeding as referable to lump sum spousal support where no claim for spousal support was advanced or adjudicated upon at trial. None of the cases cited by the trial judge supports that proposition. To the contrary, in each of Drygala, Wildman and Writer, child and/or spousal support, among other matters, was in issue at trial. And, in each of these cases, the costs of the underlying proceeding and of the appeal before this court were ordered enforceable by the FRO as support.

[72] Nor do any of the appellate-level cases relied upon by Georgia stand for this proposition. For example, Sordi v. Sordi, 2010 ONSC 6236, aff'd 2011 ONCA 665, [2011] O.J. No. 4681, cited by Georgia, provides no authority for the approach employed by the trial judge. In Sordi, this court upheld a trial judge's order that part of the costs awarded at a matrimonial trial should be enforceable by the FRO as support. However, the issues at trial included claims for child and spousal support, thus linking the costs award to support.

[73] The relevant authorities, including those mentioned above, confirm that a trial judge's allocation of costs as relating to support or maintenance for FRO enforcement purposes attracts considerable deference from a reviewing court. That said, in those authorities cited above where costs were designated enforceable by the FRO as "spousal support", the costs were incurred in a proceeding in which spousal support was implicated.

[74] I therefore conclude that the trial judge erred in this case by characterizing his costs award as lump sum spousal support for the purpose of invoking enforcement of the award by the FRO. For the reasons given, this characterization of Georgia's costs award cannot stand.

[75] Although the trial judge erred in making his costs award enforceable as spousal support, his reasons leave no doubt that he intended the awarded costs to be enforceable by the FRO. Georgia argues that, in these circumstances, the reference in the Costs Order to "lump sum spousal support" should be deleted and a reference to child support or simply "support" should be substituted in its stead. This remedy, she submits, would achieve the trial judge's objective of ensuring that the costs awarded against Gregory remain enforceable by the FRO by reason of s. 1(1)(g) of the Act.

[76] For his part, Gregory contends that because his claim for child support was dismissed, because no child support was awarded to Georgia at trial, and because Georgia concedes before this court that the costs of counselling and the assessment report for the children are not support-related, only those costs concerning the payment of extraordinary expenses for the children of the marriage under s. 7 of the Guidelines, at best, may properly be viewed as part of a support order under s. 1(1)(g) of the Act for the purpose of FRO enforcement.

[77] I disagree. Gregory has pointed to no authority for the contention that where a child support claim is dismissed, costs incurred in respect of that claim cannot form part of a support order enforceable by the FRO.

[78] There is no doubt that child support was a live issue at trial. By order dated February 14, 2012, the trial judge dismissed Gregory's claim for child support and further ordered, "There shall continue to be no base child support payable by either parent to the other party."

[79] Thus, the trial judge was required to consider and adjudicate upon a child support claim. In these circumstances, if the Costs Order is otherwise sustainable, it is my opinion that it may be enforced by the FRO as arising in relation to support within the meaning of the Act. I will return to this issue later in these reasons.

[80] It is appropriate to address one additional aspect of Gregory's challenge to the Costs Order at this stage. Gregory argues that only costs related to support are eligible for enforcement by the FRO under the Act. Accordingly, he submits, the trial judge erred by failing to identify those costs of the trial that were unrelated to support issues and by failing to direct that only those costs relating to support should be enforceable by the FRO.

[81] The decision of this court in Wildman provides a full answer to this claim. In Wildman, a similar argument was advanced and rejected. Wildman holds, at para. 59, that where, as here, a support claim is a principal issue at a multi-issue matrimonial trial, the allocation of costs as between support and non-support issues may be both impractical and inappropriate. Although a trial judge, in the exercise of his or her discretion, may identify those costs of a proceeding that were directly incurred in relation to a contested support claim, so as to designate those costs as enforceable by the FRO, this is not a necessary undertaking. As this court noted in Sordi, at para. 25, trial courts have considerable discretion concerning requests that legal costs in a multi-issue matrimonial proceeding be designated as support for the purpose of FRO enforcement. Absent legal error, designations of this kind attract considerable deference from this court.

[82] It bears repeating that, despite the trial judge's error in tying his costs award to spousal support, his intention that all the awarded costs be enforceable by the FRO is clear. This discretionary decision was squarely within his domain. In my opinion, it is reasonable in all the circumstances. I would therefore give effect to the trial judge's intention by amending the Costs Order, as urged by Georgia, to characterize the awarded costs as "support".

[83] It remains to consider Gregory's other grounds of appeal from the Costs Order.

(1) Other Grounds of Appeal from the Costs Order

(a) Hearing fairness

[84] Gregory argues that he was denied procedural fairness at the costs hearing because his former counsel was removed as solicitor of record on short notice and he was compelled to respond as a self-represented litigant to a substantial costs claim by Georgia. I would reject this argument.

[85] Gregory's former counsel obtained an order removing him as solicitor of record on March 23, 2012, the day that oral costs submissions were received by the trial judge. Gregory does not challenge the removal order itself. Rather, he contends that the effect of the removal order was to place him, as a self-represented litigant, in an untenable position, thereby compromising hearing fairness.

[86] The record belies Gregory's complaint of hearing unfairness. Notwithstanding his removal from the record, Gregory's former counsel agreed, at the trial judge's request, to participate as a friend of the court in the costs hearing and to present evidence on Gregory's behalf. The record confirms that counsel, in fact, made several costs submissions on Gregory's behalf. Further, both Gregory and his former counsel were afforded full opportunity to present relevant evidence and submissions regarding costs. The trial judge's detailed costs reasons reveal that he took account of both parties' submissions on costs and expressly addressed specific arguments made by Gregory and his former counsel in opposition to Georgia's costs claim.

[87] For example, Gregory argued before the trial judge, as he does before this court, that a costs award in the sum of $185,000 is excessive and could not have been within the reasonable expectations of the parties for a trial originally estimated to last two days. The trial judge was uniquely positioned to assess the causes of the length of the trial. He addressed Gregory's argument directly. He noted, at para. 8 of his reasons, that the trial actually lasted 10 days and that, "all counsel and both parties are equally responsible for the vast underestimate of the Trial time". He continued:

There is no evidence to support [Gregory's] assertion that [Georgia's] counsel deliberately prolonged the Trial. In fact, the longest part of the Trial by far was [Gregory's counsel's] cross-examination of [Georgia].

[88] Moreover, the trial judge expressly directed himself, at para. 18 of his reasons, to assess a fair and reasonable amount for costs, "taking into account all of the circumstances, including [Gregory's] ability to pay". In the end, for reasons he explained, he reduced Georgia's total costs claim from $236,211.16 to $185,000, a discount of approximately $51,000.

[89] I see nothing in the record, including in the trial judge's costs reasons, to ground Gregory's complaint of hearing unfairness. To the contrary, in my view, the trial judge's approach to the assessment of costs as reflected in his reasons was even-handed and fair.

(b) Gregory's ability to pay

[90] Gregory next submits that the trial judge erred by failing to properly consider his ability to pay an adverse costs award.

[91] Once again, the record undercuts this submission. The trial judge specifically considered Gregory's ability to pay when determining the appropriate quantum of costs to be awarded to Georgia. On at least two occasions in his costs reasons, the trial judge adverted to Gregory's ability to pay costs as a relevant consideration in his costs analysis. Indeed, this factor, together with Gregory's status as a father, caused the trial judge to observe, at para. 18, that he did not wish "to crush" Gregory and motivated the trial judge to significantly reduce the quantum of the costs awarded to Georgia from the amount claimed by her, as I have already described.

[92] I would not give effect to this ground of appeal.

(c) Georgia's position on child support

[93] Gregory argues that by reason of the contents of her November 2011 response to his change motion, described earlier in these reasons, Georgia essentially withdrew her claim for child support, initiated in November 2008. Relying on rule 12(3) of the FLRs, Gregory therefore submits that the trial judge erred by failing to hold Georgia liable for the costs associated with her late withdrawal of her child support claim.

[94] I disagree, for several reasons. First, several rules under the FLRs are engaged by this argument. Rule 12(3) of the FLRs provides that a party who withdraws "all or part of an application, answer or reply" shall pay the costs of the other party in relation to the matter withdrawn, up to the date of the withdrawal, "unless the court orders or the parties agree otherwise". In addition, under rule 24(1), a successful party in a family law proceeding is presumptively entitled to the costs of the proceeding. However, a successful party "who has behaved unreasonably during a case may be deprived of all or part of [his or her] own costs or ordered to pay all or part of the unsuccessful party's costs": rule 24(4).

[95] The plain language of rule 12(3) contemplates that the payment of costs by a party on withdrawal of part of the party's application, answer or reply may be relieved against by court order. Thus, the costs consequences of rule 12(3) are not inviolate.

[96] Second, in this case, the trial judge found that Georgia was largely successful at trial. The record amply supports this finding. Georgia, therefore, was presumptively entitled to her costs of the trial, in an amount that the trial judge viewed as fair and reasonable for Gregory, as the unsuccessful party, to pay having regard to all the circumstances: Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

[97] It also appears to have been undisputed at the costs hearing that the result achieved by Georgia at trial exceeded that proposed by her in various offers to settle. Consequently, under rule 18(14) of the FLRs, she was entitled to full recovery of her costs from the date of her first offer to settle and to partial indemnity costs up to the date of that first offer.

[98] The trial judge, as he was obliged to do, took account of Rules 18 and 24 of the FLRs and their application to the facts of this case. The determination of the reasonableness of Georgia's position on child support throughout the trial proceeding was the trial judge's call to make.

[99] Finally, I note that the trial judge carefully examined the costs claimed by Georgia's counsel. I again underscore that he substantially reduced the total costs awarded by approximately 22% ($51,000) from the amount of costs that Georgia claimed ($236,211.16).

[100] In summary, for the reasons given, I am not persuaded that the trial judge erred in principle or that his Costs Order is plainly wrong due to his failure to hold Georgia liable for some costs associated with her original claim for child support. The question of child support was contested over the course of a 10-day trial and eventually adjudicated upon. Georgia was largely successful on this issue. I see no reversible error in the trial judge's treatment of this issue in his costs analysis.

(d) Quantum of costs awarded by the trial judge

[101] Gregory also complains about the overall quantum of the Costs Order. He argues, on various grounds, that the trial judge's costs award is excessive, disproportionate and unreasonable. Indeed, Gregory goes further. He contends that he, rather than Georgia, should have been awarded costs of the trial or, at least, costs associated with Georgia's "withdrawn" child support claim, discussed above. In the alternative, he says, no costs should have been awarded.

[102] I see no merit to these arguments.

[103] The trial judge's costs analysis was thorough and considered. He took into account all relevant factors, including: the nature and facts of the case; the governing legal principles; the parties' submissions, conduct and offers to settle; the bill of costs submitted by Georgia's counsel, including the time spent, the rates charged and the number of involved counsel; the length of the trial; Gregory's ability to pay costs; and the fairness and reasonableness of the costs claimed. The trial judge also properly treated Georgia's success at trial and Gregory's history of repeated non-compliance with court orders as relevant considerations in fixing an appropriate costs award.

[104] The trial judge, in the exercise of his discretion, was in the best position to determine entitlement to and the appropriate scale and quantum of any costs to be awarded. Save for his characterization of the costs awarded as lump sum spousal support, which I have already discussed, Gregory has failed to demonstrate that the trial judge's costs award is plainly wrong or tainted by an error in principle.

(2) Conclusion regarding Costs Appeal

[105] For the reasons given, I would allow the costs appeal in part, in respect only of the trial judge's characterization of the costs awarded as lump sum spousal support for the purpose of enforcement by the FRO. In that regard, I would delete the phrase "lump sum spousal support" in paragraph 2 of the Costs Order and substitute, in its stead, the word "support". In all other respects, I would dismiss the appeal from the Costs Order.

VIII. Disposition of Matters Before the Court

[106] I would dispose of the parties' various motions before this court and Gregory's appeal from the Costs Order in accordance with these reasons.

[107] On the basis of my proposed disposition of them, success on the motions has been divided. Georgia succeeded on Gregory's motions to review the January Order and to file fresh evidence in support of his review motion. For his part, Gregory succeeded on his motion for leave to appeal the Costs Order and on Georgia's motion to quash the appeal from the Costs Order. As I have explained, I view it as unnecessary to address Gregory's motion to "validate" the security for costs that he furnished in alleged compliance with the January Order. In these circumstances, I would award no costs of any of the motions.

[108] Gregory attacked the Costs Order on numerous grounds. Although I would allow the appeal from the Costs Order on one narrow ground – the question of the propriety of the trial judge's characterization of the costs for the purpose of FRO enforcement – Georgia has otherwise been entirely successful on the appeal.

[109] I have considered the joint costs outline provided by the parties following the completion of oral argument. In that outline, the parties jointly allocated $2,000 in costs to the issue of the trial judge's characterization of the costs he awarded. The parties also agreed that the costs of the appeal should be viewed, in total, as approximately $18,000.

[110] In light of the parties' joint costs outline and the extent of Georgia's success on the appeal, I would award Georgia costs of the appeal in the total amount of $15,000, inclusive of disbursement and all applicable taxes.

Released:

"MAR -5 2014" "E.A. Cronk J.A."

"EAC" "I agree Paul Rouleau J.A."

"I agree M. Tulloch J.A."

[^1]: On the materials now before this court, it emerged that the FRO takes no position on the merits of any entitlement issue raised by Gregory before Doherty J.A. or this Panel, including in respect of the determination of costs by the trial judge. The FRO, therefore, did not participate in these proceedings.

[^2]: On January 1, 2014, rule 1(8) of the FLRs was revoked and replaced by O. Reg. 322/13. As amended, rules 1(8) to 1(8.3) confirm the court's authority to deal with a party's failure to obey a court order or to follow the FLRs by making an order for costs or granting other relief that the court considers necessary for a just determination of the matter.

[^3]: Nor do the January 2014 amendments to rule 1(8) provide authority to do so.