COURT OF APPEAL FOR ONTARIO

CITATION: Tadayon v. Mohtashami, 2015 ONCA 777

DATE: 2015-11-16

DOCKET: C58382

BEFORE: Gillese, Pepall and Lauwers JJ.A.

BETWEEN

Leila Fatemeh Tadayon

Applicant (Respondent/ Appellant by way of cross-appeal)

and

Ali Mohtashami

Respondent (Appellant/ Respondent by way of cross-appeal)

COUNSEL:

Stephen Codas and Michael Zalev, for the appellant/respondent by way of cross-appeal

Michael Stangarone and Ryan Kniznik, for the respondent/appellant by way of cross-appeal

Heard: September 11, 2015

On appeal from the orders of Justice Michael A. Penny of the Superior Court of Justice, dated January 23, 2014 and March 14, 2014.

Gillese J.A.:

OVERVIEW

[1] The appellant, Ali Mohtashami, and the respondent, Leila Tadayon, were married in 1984. They separated in 1999 and were divorced in 2004. The parties’ three children were aged 11, 9, and 6 at the time of separation.

[2] The parties entered into a separation agreement dated October 20, 1999 (the “1999 Agreement”). Among other things, the 1999 Agreement set out how the matrimonial home (the “Yorkminster Property”) was to be dealt with and that the appellant would pay the respondent $2,000 per month as combined child and spousal support.

[3] In 2005, the Yorkminster Property was sold and 43 Charnwood Road, Toronto (the “Charnwood Property”) was purchased as a home for the respondent and the three children. Title to the Charnwood Property was taken in the respondent’s name alone.

[4] As a result of the parties’ changed circumstances, they entered into an amending agreement dated March 11, 2005 (the “2005 Amending Agreement”). Although title to the Charnwood Property was taken in the respondent’s name alone, the 2005 Amending Agreement effectively provided that each party had a 50% interest in it.

[5] In 2010, the respondent brought an application in which she sought, among other things, to set aside the two agreements, obtain retroactive and prospective child and spousal support, and be declared the sole owner of the Charnwood Property. The appellant asserted a claim for a variety of relief, including a declaration that the respondent held 50% of the Charnwood Property in trust for him.

[6] At the time that the parties entered into the 2005 Amending Agreement, the appellant represented that his income for 2005 was $80,000. However, the applications judge found that the appellant’s 2005 income was actually $344,000. The increase in income was largely due to the fact that at the time the 2005 Amending Agreement was made, in addition to running his own general contracting company (“Pegah”), the appellant was engaged in a home building venture from which he earned unreported income.

[7] The applications judge found that this financial information was highly material and had been concealed from the respondent, who had no reason to doubt the accuracy of the appellant’s representation as to his 2005 income. He also found that had the respondent known this information, she would not have executed the 2005 Amending Agreement.

[8] As discussed more fully below, the applications judge further found that the appellant’s non-disclosure of significant financial income, as well as the treatment of the Charnwood Property in the 2005 Amending Agreement, was unconscionable.

[9] The applications judge exercised his discretion under s. 56(4) of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”) and set aside the 2005 Amending Agreement. Section 56(4) reads as follows:

A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

[10] By order dated January 23, 2014 (the “First Order”), among other things, the applications judge:

• dismissed the respondent’s request to set aside the 1999 Agreement;
• set aside the 2005 Amending Agreement;
• declared the respondent to be the sole owner of the Charnwood Property;
• dismissed the appellant’s claim for overpayment of support prior to 2010 and the respondent’s claim for arrears of support prior to 2010;
• ordered that the appellant’s child and spousal support obligations for 2010, 2011, and 2012 be recalculated on the basis of: (i) his findings that the appellant’s income for support purposes was $986,450 in 2010, $384,500 in 2011, and $445,440 in 2012; and (ii) his determination to impute annual income of $48,000 to the respondent for all support purposes after December 31, 2009;
• ordered that no child support was payable to the respondent after December 31, 2013; and
• ordered the appellant to pay the respondent spousal support of $7,452 per month for the period January 1, 2014, to December 31, 2015.

[11] The applications judge issued reasons dated March 14, 2014, in which he dealt with the costs of the application, as well as the calculation of retroactive child and spousal support. In these reasons, the applications judge concluded that the respondent should pay costs of $35,915, which was one-half of the costs of the two experts’ reports plus the costs of an unsuccessful pre-trial motion which the respondent had brought. Apart from this, because of the parties’ divided success on the application, the applications judge found that each party should bear his or her own costs of the application.

[12] By further order dated March 14, 2014 (the “Second Order”), the appellant was ordered to pay the respondent a lump sum of $172,133. That figure is the total net amount that the appellant owed for child and spousal support to the end of 2013, less the costs award of $35,915.

[13] The appellant appeals and the respondent cross-appeals.

[14] For the reasons that follow, I would dismiss the appeal and allow the cross-appeal on one matter only, namely, the respondent’s entitlement to pre-judgment interest on the retroactive child and spousal support award.

THE ISSUES

[15] The appellant raises three issues on appeal. He submits that the applications judge erred in:

1. setting aside the 2005 Amending Agreement;
2. finding the respondent to be the sole owner of the Charnwood Property; and
3. the quantum and duration of the prospective spousal support.

[16] In her cross-appeal, the respondent raises four further grounds of appeal. She submits that the applications judge erred in:

4. failing to order retroactive child and spousal support prior to 2010;
5. failing to award pre-judgment interest on the retroactive child and spousal support order;
6. time-limiting the spousal support order and the quantification of that support; and
7. his disposition of the costs of the application.

THE APPEAL

Issue #1: Did the applications judge err in setting aside the 2005 Amending Agreement?

[17] The appellant makes three arguments in support of his submission that the applications judge erred in setting aside the 2005 Amending Agreement. First, he says it was an error for the applications judge to find that the appellant failed to disclose a significant asset at the time that the 2005 Amending Agreement was made. Second, he contends that the applications judge erred in finding the 2005 Amending Agreement was unconscionable. Third, he argues that the applications judge erred when he exercised his discretion and set aside the 2005 Amending Agreement because he failed to have regard to the relevant factors, as established in the case law.

[18] I see no merit in this submission or in the arguments advanced in support of it. Accordingly, in my view, the applications judge did not err in setting aside the 2005 Amending Agreement.

The First Argument

[19] Did the applications judge err in finding that the appellant failed to disclose a significant asset when the parties entered into the 2005 Amending Agreement? He did not.

[20] There is no question that at the time the parties executed the 2005 Amending Agreement, the appellant represented that his income for 2005 would be $80,000. He knew at that time that his income for 2004 was $147,000, which is substantially in excess of $80,000. He also knew that he would be receiving income from Pegah in 2005, and income from his home building venture which he did not declare to the Canada Revenue Agency. None of this financial information was disclosed to the respondent until long after she began these proceedings.

[21] One of the two income valuation experts was jointly retained by the parties. It was she who prepared the first report. That expert gave evidence that the appellant’s 2005 income was $344,000.

[22] The appellant retained the second expert to provide different scenarios as to his income, depending on alternative factual findings that the applications judge might make. The second expert accepted the first expert’s report as her starting point. She then constructed three possible scenarios for the appellant’s 2005 income, which were, at least in part, dependent upon how the unreported income was divided between the appellant and his father. It is obvious from his reasons that the applications judge preferred the evidence of the first expert, as he was entitled to do.

[23] Further, as the appellant acknowledges, the right to an income stream is an “asset”, within the meaning of s. 56(4)(a) of the FLA and ought to be disclosed: see Horner v. Horner (2004), 2004 CanLII 34381 (ON CA), 72 O.R. (3d) 561 (C.A.), at para. 77.

[24] In these circumstances, I see no error in the applications judge’s finding that the appellant failed to disclose a significant asset when the parties entered into the 2005 Amending Agreement. Nor do I see any error in the applications judge’s findings that the appellant materially misrepresented his income for 2005, that the material misrepresentation was an inducement for the respondent to sign the 2005 Amending Agreement, and that had the respondent known the correct financial information, she would not have executed it.

[25] To the extent the appellant argues that the respondent failed to raise the matter of non-disclosure of financial information in her pleadings, I would make four responses. First, he did not raise this matter below and it ought not to be raised for the first time on appeal. Second, the respondent did plead that the 2005 Amending Agreement should be set aside. She pled that she sought financial disclosure and, at para. 22 of her pleading, she expressly asked that the 2005 Amending Agreement be set aside on the basis of inadequate financial disclosure. Given that, and the parties’ joint retention of an expert in income valuation, it could have come as no surprise that the appellant’s financial situation in 2005 was in issue. Third, the appellant had an obligation to make proper financial disclosure at the time the 2005 Amending Agreement was entered into: see Horner, at para. 77. The respondent can scarcely be faulted for the appellant’s failure to fulfill that obligation. Fourth, and in any event, the record shows that by the time this matter was before the applications judge, the appellant was fully aware of the case he had to meet and was given a fair opportunity to meet that case.

The Second Argument

[26] Did the applications judge err in finding the 2005 Amending Agreement to be unconscionable? He did not.

[27] In responding to this argument, both the appellant’s non-disclosure of significant income and the treatment of the Charnwood Property in the 2005 Amending Agreement must be considered. Why? Because, in my view, the applications judge’s finding of unconscionability was based on both. I reach this conclusion based on the applications judge’s reasons, at paras. 25-27:

[25] In my view, there were good reasons for the [respondent] not to agree to the [2005] Amending Agreement. I find that a material inducement to her signing the [2005] Amending Agreement was the representation that the [appellant’s] income was only $80,000. Had she been given the information now available to the court (and known by the [appellant] at the time), she would not have signed the [2005] Amending Agreement.

[26] I also find the 2005 Amending Agreement, in its treatment of the 43 Charnwood property, to be unconscionable. There was, in my view, an inequality between the parties, a preying by the [appellant] on the [respondent] which, combined with her economic vulnerability, placed upon the [appellant] a duty to act with scrupulous care for the [respondent’s] welfare and interests. The [appellant’s] failure to disclose that his income was roughly four times that which he represented it to be was a serious breach of that duty.

[27] For these reasons, I find the [2005] Amending Agreement was obtained as a result of the [appellant’s] non-disclosure of material financial information and was unconscionable. In the circumstances, I exercise my discretion to set the [2005] Amending Agreement aside.

[28] From these reasons, it is also clear that the applications judge understood that the concept of unconscionability in the context of the execution of domestic contracts is not synonymous with unconscionability as it is understood in the common law of contract: see Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, at para. 82.

[29] Where there are circumstances of oppression, pressure, or other vulnerabilities and evidence of one party’s exploitation of such vulnerabilities during the negotiation process, with the result that the domestic contract deviates substantially from the legislation, the contract need not be enforced: see Miglin, at paras. 81-83; and Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, at para. 44.

[30] I understand the applications judge to have found that the 2005 Amending Agreement was entered into as a result of the appellant having taken advantage of the inequality between him and the respondent, and the respondent’s economic vulnerability. This preying upon the respondent was manifested in the appellant’s non-disclosure of significant financial information and the treatment of the Charnwood Property itself within the 2005 Amending Agreement.

[31] I dealt with the applications judge’s findings on financial non-disclosure immediately above and there is no need to repeat that analysis, which justifies the applications judge’s finding of unconscionability. I will deal with whether the treatment of the Charnwood Property in the 2005 Amending Agreement was unconscionable as part of my analysis of Issue #2, below.

The Third Argument

[32] Did the applications judge err in failing to consider the relevant factors when exercising his discretion to set aside the 2005 Amending Agreement? He did not.

[33] In determining whether a domestic contract should be set aside pursuant to s. 56(4) of the FLA, the court is to follow a two-step process: see Virc v. Blair et al., 2014 ONCA 392, 119 O.R. (3d) 721, at para. 52:

Step 1. Has the party seeking to set aside the agreement demonstrated that one or more of the s. 56(4) circumstances is engaged?; and

Step 2. If so, is it appropriate for the court to exercise its discretion to set aside the agreement?

[34] There can be no doubt that the applications judge was alive to this two-step process, as paras. 8-10 of his reasons contain an accurate summary of it.

[35] The applications judge also carefully followed that process.

[36] For the reasons already given, it is clear that the applications judge found that the first step in the process was met because the appellant had failed to disclose to the respondent significant financial assets when the 2005 Amending Agreement was made (s. 56(4)(a), FLA).

[37] It is equally clear that the applications judge had regard to the relevant considerations on the second step.

[38] In addition to the findings made on the first step, findings which led the applications judge to conclude that the 2005 Amending Agreement was unconscionable, the applications judge also considered the respondent’s conduct in respect of financial disclosure. Although the applications judge noted that the respondent could have pursued more detailed disclosure at the time the 2005 Amending Agreement was entered into, “it is not clear it would have been forthcoming without a fight” (at para. 15). It is also implicit in the applications judge’s reasons that the respondent took the benefits of the 2005 Amending Agreement but, given that the applications judge set that agreement aside, this does not factor against the respondent. Further, the applications judge found that the respondent had fulfilled her obligations under the 2005 Amending Agreement by paying the mortgage and other carrying costs on the Charnwood Property.

[39] Accordingly, I do not accept that the applications judge failed to have regard to the relevant considerations when he exercised his discretion and set aside the 2005 Amending Agreement.

Issue #2: Did the applications judge err in finding the respondent to be the sole owner of the Charnwood Property?

[40] The appellant says that the parties used the net sale proceeds of $120,000 from the sale of the Yorkminster Property towards the purchase the Charnwood Property. As the Yorkminster Property was jointly owned by the parties, the appellant submits that both parties advanced funds to purchase the Charnwood Property. Accordingly, he submits, given that title to the Charnwood Property was taken in the respondent’s name alone, the presumption of resulting trust applies. That presumption was not rebutted because there was no evidence to suggest that the appellant intended to make a gift of his share of the proceeds of sale to the respondent. Thus, the appellant contends, he is entitled to a 50% beneficial interest in the Charnwood Property.

[41] The full answer to this submission lies in paras. 17-24 of the reasons of the applications judge, which can be summarized as follows.

[42] When the matrimonial home (the Yorkminster Property) was sold, the parties had net equity available of $257,000. Only half of the net equity ($128,500) went towards the purchase of the Charnwood Property. That half belonged to the respondent.

[43] The appellant looked after the transaction. The applications judge found that he elected to use his half of the net equity from the sale of the Yorkminster Property to make “a discretionary payment to himself or those he chose to confer a benefit upon”. He paid $48,500 to Pegah, his construction company, allegedly because Pegah made a deposit on the purchase of the Yorkminster Property and made renovations on it. The applications judge rejected this, noting that Pegah’s bookkeeper had testified that the costs of renovations to the matrimonial home had been paid by the appellant personally or had been written off.

[44] The appellant used the other $80,000 of his share of the net equity to make a payment on his father’s home, allegedly because his father had made loans to the parties earlier in their marriage. The applications judge did not accept that such loans had been made. He found that the allegation of debts owing to the appellant’s father lacked credibility due to an absence of objective evidence and the admitted discretion afforded to the appellant in his control over his father’s Canadian finances. He described the appellant’s financial relationship with his father as almost entirely undocumented, and explained that the father had complete trust in the appellant, with the appellant often treating his father’s bank account as if it were his own. The applications judge also noted that there was no independent record of amounts loaned to, or owed by, the appellant to his father.

[45] In addition to finding that only the respondent’s funds were used for the down payment on the Charnwood Property, the applications judge found the respondent to have been entirely responsible for making the mortgage payments and paying the other carrying costs on that property. These obligations flowed from the terms of the 2005 Amending Agreement. The respondent met those obligations from the support that she received from the appellant. In the result, the mortgage payments made on the Charnwood Property were from funds taxed in the respondent’s hands for which the appellant received a tax deduction. It was in this context that the applications judge found the treatment of the Charnwood Property in the 2005 Amending Agreement, which purported to give the appellant half the net equity on its sale, to be unconscionable.

[46] These findings, coupled with the applications judge’s findings that the appellant preyed on the respondent’s economic vulnerability and that the appellant had not disclosed material financial information, satisfy the test for unconscionability, set out above.

[47] As for the appellant’s resulting trust submission, once the applications judge found that only the respondent’s funds were used towards the purchase of the Charnwood Property and that only she made payments on the mortgage, there was no room for the operation of the presumption of resulting trust.

Issue #3: Did the applications judge err in the quantum and duration of the prospective spousal support?

[48] The appellant’s submission on this ground of appeal runs as follows. In Miglin, at paras. 79-85, the Supreme Court of Canada held that when parties execute an agreement in the family law context and that agreement is called into question, the court must engage in a two-stage inquiry.

[49] As part of the first stage, the court must consider the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it. As well, the substance of the agreement must be considered so that the court can determine whether it is in substantial compliance with the objectives of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

[50] The appellant says that the applications judge did not take into consideration the factors and objectives set out in the Divorce Act, as required by Miglin, at para. 84. Instead, he says, the applications judge simply “ran” the Spousal Support Advisory Guidelines (the “SSAGs”) and ordered spousal support of $7,452 per month for an additional two years.

[51] I do not accept this submission.

[52] The applications judge succinctly set out the applicable legal principles when considering the respondent’s claim for ongoing spousal support. At paras. 77-79 of his reasons, he states as follows:

[77] With respect to spousal support, I am to consider the condition, means, needs and other circumstances of each spouse including the length of time the spouses cohabited; the functions performed by each spouse during cohabitation; and any order, agreement or arrangement relating to support of either spouse.

[78] A spousal support order must address the following objectives: recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; apportion between spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of that child; relieve any economic hardship of the spouses arising from the breakdown of the marriage; as far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[79] No one objective is paramount and each objective should be accorded equal weight. The award of spousal support is ultimately discretionary; marriage per se does not give rise to a spousal support obligation.

[53] The applications judge carefully considered the issue of entitlement and found that even post-separation, the appellant derived a significant benefit from the respondent’s dominant role in childcare. He further found that while the respondent’s role did not prevent her from working at all, it did create some limits on what she could do. He weighed the competing factors and ordered a further two years of spousal support (from January 1, 2014) to enable the respondent “to regroup, assess her options, pursue additional job training or development and transition to financial self-sufficiency” (at para. 90).

[54] As the applications judge noted, his decision in this regard was discretionary. I see no basis on which to interfere with the exercise of his discretion.

[55] As for the appellant’s complaint about the quantum of support ordered, I note two things. First, the SSAGs do not impose a cap on the amount of spousal support to be awarded when a payor’s annual income exceeds $350,000. Second, the applications judge set the amount based on the methodology that the appellant had proposed for setting retroactive spousal support for 2010-2013. As such, the appellant cannot now claim that there is no explanation for how or why the applications judge came to the quantum ordered.

THE CROSS-APPEAL

Issue #4: Did the applications judge err in failing to order retroactive child and spousal support prior to 2010?

[56] I see no merit in the respondent’s claim that the applications judge erred in disallowing her claim for retroactive child and spousal support prior to 2010. The respondent argues that the applications judge placed too much emphasis on her delay in asserting this claim. I disagree.

[57] The applications judge found that the respondent had not put forward any credible, reasonable excuse for failing to assert those claims before 2010. In making this finding, the applications judge noted, among other things, that the respondent had sworn an affidavit in 2004, to obtain the divorce, in which she indicated that she was content with the terms of the 1999 Agreement with respect to support. The applications judge also found that the respondent had not provided a basis for such claims. I understand him to be referring to the absence of evidence suggesting that either the children’s needs or her needs had not been met in the relevant time period.

[58] In these circumstances, it cannot be said that the applications judge erred in failing to order retroactive support.

Issue #5: Did the applications judge err in failing to award pre-judgment interest on the retroactive child and spousal support order?

[59] After the applications judge made his findings about the parties’ respective incomes in the relevant years, he asked the parties to calculate the amount of support that the appellant owed the respondent. They agreed on that amount ($208,048) and sent the applications judge a joint letter (the “Joint Letter”) to that effect. The applications judge used that amount in making the Second Order.

[60] The Second Order did not include an award for pre-judgment interest. The respondent had sought such an award in her pleadings and in her written closing submissions. She contends that the applications judge erred in failing to make the award.

[61] The appellant says that if the respondent had wished to assert such a claim, she should have done so at the time the Joint Letter was sent to the applications judge.

[62] In my view, the applications judge’s failure to award pre-judgment interest was an oversight. The respondent is prima facie entitled to interest on the retroactive child and spousal support ordered, pursuant to s. 128(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”). Furthermore, both the respondent’s pleadings and her written closing submissions indicated that she sought pre-judgment interest. I see no basis on which to deny her pre-judgment interest on the net amount owing for child and spousal support to the end of 2013. The Joint Letter responded to the applications judge’s request for a calculation of the amount that the appellant owed the respondent for unpaid support over a period of time. It does not specify that pre-judgment interest was to be included and neither party viewed it as including such.

[63] Accordingly, I would allow the cross-appeal on this issue alone and order that the respondent is entitled to pre-judgment interest on the amount of the retroactive child and spousal support.

[64] Having said that, rather than raising this issue by way of cross-appeal, it seems to me that when the respondent discovered the error, she ought to have followed either of the mechanisms provided by rr. 25(5) and 25(19) of the Family Law Rules, O. Reg. 426/00, and disputed the contents of the Second Order before the applications judge or moved to have the Second Order changed when she discovered the error.

Issue #6: Did the applications judge err in time-limiting the spousal support award and the quantification of that support?

[65] The respondent submits that this court should set aside the applications judge’s determination of post-2009 spousal support on the basis that it is insufficient and should not be time-limited.

[66] An appellate court is not to interfere with a support order unless that order is based on an error in principle, a significant misapprehension of the evidence, or is clearly wrong: see Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at para. 11.

[67] As I have explained above in my analysis of Issue #3, in making the spousal support award for the post-2009 period, the applications judge applied the appropriate legal principles to findings that were solidly grounded in the evidence. I see no significant misapprehension of the evidence on the part of the applications judge and the award is not clearly wrong.

[68] As I did not address the time-limited aspect of the spousal support order above, I would simply add the following. The applications judge made clear factual findings which fully justify his decision to time-limit further spousal support. Those findings include the following:

• by the time the First Order was made, the respondent had received spousal support for some 14 years;
• the parties separated after 16 years of marriage;
• the children had grown up and no longer needed the respondent’s full-time care and attention;
• the respondent was relatively young (she was 37) when the parties separated;
• the respondent was intentionally under-employed;
• there was no medical or other evidence to suggest that the respondent had limited employment opportunities; and
• evidence of the respondent’s efforts to achieve financial self-sufficiency was lacking.

[69] Effectively, the applications judge found that the respondent was capable of supporting herself but had not made reasonable efforts to do so. He ordered two years of further spousal support to enable the respondent “to regroup, assess her options, pursue additional job training or development and transition to financial self-sufficiency”.

Issue #7: Did the applications judge err in his disposition of the costs of the application?

[70] Section 133(b) of the CJA provides that leave to appeal is required where an appeal is only as to a discretionary costs order. When, however, the disposition on appeal changes the decision under appeal, leave to appeal from the costs order is not necessary: St. Jean (Litigation Guardian of) v. Cheung, 2009 ONCA 9, 173 A.C.W.S. (3d) 984, at para. 4.

[71] Here, since I would allow the cross-appeal on the issue of pre-judgment interest, the disposition of the cross-appeal changes the decision below. Thus, it would seem that leave to appeal the costs order is not required.

[72] Nonetheless, I would not interfere with the costs award. On a review of that award, I see no error in principle and it is not plainly wrong.

[73] When I factor in the change to be made to the Second Order as a result of the cross-appeal, I remain of the view that no interference with the costs award is warranted. The change arising from the respondent’s success on the pre-judgment interest issue is minor in the overall context of these proceedings.

[74] Moreover, as I have explained above, the respondent could have had the matter of pre-judgment interest addressed by the applications judge or on motion. Had she done so, it appears likely that no cross-appeal would have been required on that particular matter. In these circumstances, I am of the view that the costs award below should not be interfered with.

DISPOSITION

[75] For these reasons, I would dismiss the appeal and allow the cross-appeal only on the matter of pre-judgment interest. I would amend the Second Order to provide that the respondent is entitled to pre-judgment interest on the total amount of child and spousal support owed to the end of 2013 by the appellant. If the parties are unable to agree on the quantification of the pre-judgment interest, they shall return to the applications judge to have that matter resolved.

[76] I would make no order as to costs of the appeal and cross-appeal because, with the exception of the matter of pre-judgment interest, success was divided.

[77] In respect of the pre-judgment interest issue, I would make two observations. First, that issue occupied a very small part of the cross-appeal (and no part of the appeal). Second, as I have explained, had the respondent used either rr. 25(5) or 25(19) of the Family Law Rules, it might have been unnecessary to have brought the cross-appeal on this matter. With these considerations in mind, in my view, no order as to costs of the appeal and cross-appeal is warranted.

Released: November 16, 2015 (“E.E.G.”)

“E.E. Gillese J.A.”

“I agree. S.E. Pepall J.A.”

“I agree. P. Lauwers J.A.”