CITATION: D.G. v. A-G.D., 2019 ONCJ 156
DATE: March 25, 2019
COURT FILE NO. D81902/15
ONTARIO COURT OF JUSTICE
B E T W E E N:
D.G.
COURTNEY KAZEMBE and RENARD PATRICK, for the APPLICANT
APPLICANT
- and -
A-G.D.
ANTHONY MARTIN, for the RESPONDENT
RESPONDENT
HEARD: In Chambers
JUSTICE S.B. SHERR
ENDORSEMENT
[1] On January 29, 2019, the court released its reasons for decision arising out of a 4-day-trial about the parenting arrangements for the parties’ child and the respondent’s (the mother’s) request for a restraining order against the applicant (the father). See: D.G. v. A.-G.D., 2019 ONCJ 43.
[2] On February 28, 2019, the court ordered the father to pay the mother’s costs of the trial fixed in the amount of $12,430, payable within 90 days. See: D.G. v. A.-G.D., 2019 ONCJ 112.
[3] On March 22, 2019, the mother filed an over-the-counter Form 14B motion asking that the costs order be defined as support and be part of the support deduction order, for the purpose of enforcement by the Family Responsibility Office (FRO). The mother claims that the father has not paid the costs order and owes her $2,998 in child support. She does not believe that the father will pay the costs order.
[4] Under clause 1 (1) (g) of the Family Responsibility and Support Arrears Enforcement Act (the Act), costs awards that relate to support or maintenance may be enforced by FRO. This clause reads as follows:
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….
[5] The court’s authority to make orders directing that legal fees be included as a support order and enforced by FRO, is limited to costs awards arising out of support decisions. See: Clark v. Clark, 2014 ONCA 175. Where the decision involves a mix of support and other issues, the court has the discretion to determine what portion of the costs should be allocated to the support issue. See: Sordi v. Sordi, 2011 ONCA 665; Clark v. Clark, supra; A.A. v. Z.G., 2016 ONCA 737.
[6] This trial had nothing to do with support.[^1] It only dealt with parenting issues and the mother’s request for a restraining order.
[7] The court has no authority to grant the relief sought in the mother’s motion. It is dismissed.
[8] This does not leave the mother bereft of enforcement options for the costs order (which is still not in default, as the father has until May 30, 2019 to pay it).
[9] Subrule 26 (2) of the Family Law Rules (all references to rules are to the Family Law Rules) provides that an order that has not been obeyed may, in addition to any other method of enforcement provided by law, be enforced as provided by subrule (3).
[10] Subrule 26 (3) provides that a payment order[^2] may be enforced by,
(a) a request for a financial statement (subrule 27 (1))[^3];
(b) a request for disclosure from an income source (subrule 27 (7));
(c) a financial examination (subrule 27 (11))[^4];
(d) seizure and sale (rule 28);
(e) garnishment (rule 29); and
(f) the appointment of a receiver under section 101 of the Courts of Justice Act.[^5]
[11] Further, subrule 1 (8) provides remedies if a person fails to obey an order in a case. It states that the court may deal with the failure by making any order that it considers necessary for a just determination of the matter. This includes an order that the party is not entitled to any further order from the court unless the court orders otherwise. See: Clause 1 (8) (e).
[12] The mother should contact FRO about enforcement of the support arrears.
Released: March 25, 2019
Justice S.B. Sherr
[^1]: The child support issue was finalized by the order of Justice Carolyn Jones dated September 7, 2018. [^2]: A payment order includes the costs and disbursements in a case. See: Clause (i) in the definition of payment order in subrule 2 (1). [^3]: Pursuant to subrule 27 (6) if the payor does not serve and file a financial statement within 10 days after being served with an order to produce one by the court under subrule 27 (5), the court may, on motion with special service, order that the payor be imprisoned continuously or intermittently for no more than 40 days. [^4]: Pursuant to subrule 27 (20) if the payor without sufficient excuse fails to obey an order or direction by the court under subrule 27 (19) regarding a financial examination, the court may, on motion with special service, order that the payor be imprisoned continuously or intermittently for no more than 40 days. [^5]: Only the Superior Court of Justice has the authority to make an order for the appointment of a receiver. See: subsection 101 (1) of the Courts of Justice Act.