Court of Appeal for Ontario

Citation: A.A. v. Z.G., 2016 ONCA 737
Date: 2016-10-06
Docket: C60864

Before: Feldman, Simmons and Lauwers JJ.A.

Between

A.A.
Applicant (Appellant)

and

Z.G.
Respondent (Respondent)

And Between

S.A.
Plaintiff (Appellant)

and

A.A. and Z.G.
Defendants (Respondents)

Counsel:
Mark A. Russell and Judy Hamilton, for the appellants A.A. and S.A.
Harold Niman and Deborah MacKenzie, for the respondent Z.G.

Heard and released orally: September 29, 2016

On appeal from the judgment of Justice Emile R. Kruzick of the Superior Court of Justice, dated July 14, 2015.

Endorsement

[1] This court adjourned the hearing of the appeal on August 24, 2016 to give the appellant the opportunity to pay the arrears of support, post a letter of credit for future spousal support and place a life insurance policy on the life of the husband to secure support, all as a condition of hearing the appeal.

[2] The appellant did not make the payments. Counsel have agreed that the appeal be dismissed with costs in the agreed amount of $27,500 inclusive of disbursements and HST payable within 30 days. They have also agreed on the amount of $25,000 costs payable to the successful party on the companion appeal.

[3] The issue that was argued this morning was the application of s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 2005, S.O. 2005, c. 16, to the costs order in this appeal. Mr. Niman submits that it is clear that the appellant has no intention to pay any amount ordered and that the costs award should be protected and made enforceable to the extent possible under the Act. He submitted that two-thirds of the costs were related to the issue of support.

[4] Mr. Russell submitted first that counsel had not proven how much time was spent on the support aspect of the appeal. We reject that submission. The court is in a position to assess the applicability of the section: see Clark v. Clark, 2014 ONCA 175, 40 R.F.L. (7th) 14, at para. 81. Mr. Russell submitted in the alternative that $7,500 of the agreed amount could be included under the statute.

[5] The section requires that the amount of the legal fees included as a support order relate to the support issue. In our view, a fair amount of the $27,500 agreed costs to be included as a support order is $15,000. So ordered.

"K. Feldman J.A."
"Janet Simmons J.A."
"P. Lauwers J.A."