Court of Appeal for Ontario

Date: March 19, 2019 Docket: C65727

Judges: van Rensburg, Benotto and Harvison Young JJ.A.

Between

Delia Joan Berta Applicant (Respondent in Appeal)

and

Raymond Louis Berta Respondent (Appellant)

Counsel

Peter M. Callahan, for the appellant

Michael Zalev and Aaron Franks, for the respondent

Heard and released orally: March 11, 2019

On appeal from: the order of Justice Michael Gibson of the Superior Court of Justice, dated July 17, 2018.

Reasons for Decision

[1] The parties have been involved in matrimonial litigation since their separation nine years ago. This is the third time they have been to this court. Indeed, the bulk of the accumulated spousal support arises out of this court's order of November 2017.

[2] The issue in this appeal is whether the motion judge erred by setting off costs and interest of $331,533.54 owed by the wife to the husband against accumulated spousal support and costs of $479,130.91 owed by the husband to the wife. In the result, the husband owes the wife $147,597.37.

[3] The husband appeals arguing that the motion judge erred by allowing the wife to amend her notice of motion to request the set off, then further erred in granting the set off because set off is not available in law and usurps the jurisdiction of the Family Responsibility Office ("FRO").

[4] We do not accept these submissions.

[5] The motion judge did not err by allowing the amendment. The Family Law Rules require the court to ensure that cases are dealt with fairly by saving expense and time, dealing with the case in ways that are appropriate to its importance and complexity and by giving appropriate resources to the case while taking account of the need to give resources to other cases. The amendment was appropriately allowed.

[6] Nor do we agree that set off was unavailable. The motion judge correctly referred to s. 111 of the Courts of Justice Act. While the Director of the FRO has the duty to enforce support orders, nothing in the Family Responsibility Enforcement Act limits the court's jurisdiction to order set off. Finally, to allow the husband to pursue a claim against the wife when he is significantly in debt to her would be highly unjust.

[7] The appeal is dismissed with costs in the amount of $17,000 all-inclusive payable to the respondent out of the funds paid into court as security for costs.

"K. van Rensburg J.A."

"M.L. Benotto J.A."

"A. Harvison Young J.A."