ONTARIO COURT OF JUSTICE

CITATION: M.B. v. A.F., 2021 ONCJ 45

DATE: 2021 01 26

COURT FILE No.: Toronto DFO-11-10070 – B1

BETWEEN:

M.B.

Applicant

— AND —

A.F.

Respondent

Before Justice Alex Finlayson

Costs Submissions Received in Writing

Reasons for Judgment respecting Costs released on January 26, 2021

M.B................................................................................................................. on her own behalf

Jared Teitel..................................................................... counsel for the respondent father

ALEX FINLAYSON J.:

PART I: OVERVIEW

[1] On September 21, 2020, I heard a full day of argument on the parties’ competing motions. On November 3, 2020, I released my Judgment (the “Judgment”: see M.B. v. A.F., 2020 ONCJ 498). I dismissed the mother’s motion in full. I granted aspects of the father’s motion for summary judgment. I also ordered that the mother requires leave of this Court, prior to commencing any further Motions to Change. I set out a process for that to occur.

[2] In the Judgment, I summarized the prior proceedings before this Court, and the related proceedings before the Superior Court and the Divisional Court. As part of the recitation of that history, I commented about the extraordinary volume of materials before this Court. This Court’s findings about those prior proceedings are relevant to the Court’s assessment of the parties’ behaviour and reasonableness, in relation to costs.

[3] At the conclusion of the Judgment, I invited written costs submissions and specifically directed that they be limited to 5 pages, double spaced, plus certain attachments. The father complied with my direction; the mother did not, filing some 45 pages. This is yet another example of the mother’s pattern of filing excessively long materials.

[4] In her submissions, the mother sets out her own account of the history of this case. In several respects, that history is contrary to this Court’s summary and findings in the Judgment. She attempts to reargue many of the issues in the substantive motions already disposed of. And she continues to make numerous complaints about the father’s counsel, also addressed in the Judgment.

[5] The mother’s submissions include what appears to be excerpts from transcripts of conferences heard by Justice Murray during the prior proceedings. The mother has appealed the Judgment, as is her right. But the purpose of including the transcript excerpts within her costs submissions appears to be to inform this Court about the previous case management judge’s opinions, to highlight the ways in which she says I erred in the Judgment. These transcripts excerpts from prior conferences were not put before this Court as part of the original motion materials. And, as transcripts of conferences, they are not properly before the Court now, in any event[^1].

[6] Although the Judgment did not grant the father a right of reply, on January 19, 2021, he filed a further brief containing 3 pages of supplementary written submissions, and some attachments. The purpose was to respond to some of the Offers to Settle submitted by the mother, purportedly dated in 2019 and 2020, and purportedly served prior to argument of the motions. The father’s supplementary submissions state that:

(a) He was never served with the Offers;

(b) The Offers are unsigned and were created with Microsoft Word; and

(c) The “metadata” reveals that the Offers were created after their purported dates. In two cases, he says the mother only created them on January 5, 2021. That was three days before she served her costs submissions, and well after the motions before me were argued.

PART II: THE PARTIES’ POSITIONS

[7] The outcome in the Judgment matched or exceeded numerous portions of three severable Offers to Settle made by the father. The father’s claim for costs is based on his success, his severable Offers to Settle, and the mother’s behaviour. He asserts that the mother engaged in unreasonable and bad faith behaviour. Nonetheless, the father only claims costs of $15,000.00, or approximately 54% of his counsel’s already discounted Bill of Costs.

[8] The mother says that the father is not entitled to costs. She argues the father’s counsel’s hourly rate and Bill of Costs are excessive. She alleges that the father’s lawyer engaged in bad faith behaviour. She submits she does not have the ability to pay costs.

[9] The mother not only resists an award of costs but appears to be claiming costs herself, at a self-represented litigant rate of $75.00 per hour. The mother claims that she incurred costs to prepare for various past steps in the case, in addition to the motions. She also claims she incurred costs to prepare for appeals. She says she was “successful” at various of those events.

[10] Finally, the mother says that she made the aforementioned Offers to Settle. These include a concession that the father would only have to provide 3 years of bank statements, had he just accepted her Offer regarding disclosure. She also seeks to rely on an Offer to Settle the substantive issues in the case. But these are the very Offers to which the father objects for the reasons expressed above.

PART III: ISSUES AND ANALYSIS

A. Overall Framework and Law Concerning the Purposes of Costs Orders

[11] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended, provides that cost orders are in the discretion of the Court. The framework for awarding costs in a family law case is set out in Rule 24 of the Family Law Rules, O. Reg. 114/99, as amended.

[12] Modern costs rules are designed to foster three fundamental purposes: to partially indemnify successful litigants; to encourage settlement; and to discourage and sanction inappropriate behaviour by litigants. Rule 2(2) of the Family Law Rules adds a fourth, to ensure that cases are dealt with justly. See Mattina v. Mattina, 2018 ONCA 867 ¶ 10.

B. Entitlement

(1) Success

[13] An important factor in the determination of costs is success. Rule 24(1) provides a presumption that the successful party is entitled to costs of a motion. The Court may apportion costs if success is divided, pursuant to rule 24(6).

[14] There is no question that the father was the successful party. For the reasons explained in the Judgment, this Court dismissed all the mother’s various requests for relief in her motion and raised throughout her affidavits.

[15] By contrast, the Court largely granted the father’s summary judgment motion. Although the Court did not dismiss the mother’s Motion to Change outright, as claimed in part of the father’s Notice of Motion for summary judgment, it granted a Final Order on the Motion to Change and the Response to Motion to Change that approximated the substantive relief claimed by the father elsewhere in his Notice of Motion for summary judgment.

[16] I find that the presumption in rule 24(1), entitling the successful party to costs, applies to the father. Further, rule 24(6) is not engaged. Any lack of success that the father may have enjoyed on the motions, such as the amount from the personal injury settlement that the Court added to his 2017 income or his request to dismiss the mother’s case as an abuse of process, was insignificant.

[17] The mother correctly submits that the Court has jurisdiction under rule 24(11) to award costs in relation to past steps in a case, even where they were not reserved until later in the case. However, this rule must be applied in appropriate circumstances. The Court is not in a position, based on the record placed before it, to go back over past conferences that occurred before a different judge and engage in an assessment of “success”, or of other issues that might relate to costs of such conferences. Justice Murray was in the best position to make those determinations at the time, and yet no costs of any conferences were ever ordered, nor reserved to a later event.

[18] The mother’s costs materials also refer to her success in an appeal to the Superior Court of Justice. That Court made no order for costs of the mother’s appeal. I understand she unsuccessfully sought to challenge this outcome, first by seeking a reconsideration before the appeal judge in the Superior Court, and then in the Divisional Court. This Court has no authority in relation to costs incurred, or ordered, or denied, in any of those proceedings. They are clearly irrelevant to the assessment of costs arising from this proceeding, except perhaps in relation to mother’s ability to pay.

(2) Behaviour of the Successful Party

[19] Pursuant to rule 24(4), a successful party who has behaved unreasonably may be deprived of all or part of his or her costs, or even be ordered to pay the other side’s costs. Rule 24(5) sets out the factors the Court is to examine in deciding whether a party behaved reasonably or unreasonably. These provisions are not engaged here because there is nothing in any of the findings made by this Court, or in the motion record, that warrants depriving the father of his costs based on his bad behaviour.

[20] The mother’s renewed criticism and complaints about Mr. Teitel have already been addressed in the Judgment, where I found they lacked merit. Therefore, I also conclude that rule 24(8) neither applies to deprive the father of his costs, nor to require the father to pay costs to the mother, based on either the father’s or his counsel’s alleged behaviour.

C. Quantum

[21] The quantum of costs is determined with reference to the factors in rule 24(12). It reads:

24(12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

(1) Each Party’s Behaviour

[22] Many costs decisions have expressed that family law litigants are accountable for the positions they take in litigation. They have an obligation to assess their cases at the outset, and to reassess as the case unfolds. Courts have repeatedly stated that those who can least afford to litigate should be motivated to pursue settlement and to avoid unnecessary proceedings.

[23] I have already addressed the father’s behaviour as it relates to rules 24(4) and 24(8). I would make similar findings in regards to his behaviour for the purpose of rule 24(12)(a)(i).

[24] It is important to consider the mother’s behaviour in its full context. The father is a salaried, T4 employee. I would have taken no issue with the mother’s conduct in the litigation, had she just pursued an adjustment to child support based on the father’s new Line 150 incomes, revealed after the date of the last Final Consent Order dated June 1, 2017, plus some additional income from the receipt of his personal injury settlement. In fact, had that been the extent of her claims, this case could have easily settled, or alternatively could have been determined at a focused hearing.

[25] Instead, as I summarized in ¶ 6 to 30 and elsewhere in the Judgment, the mother:

(a) took the position that the father was concealing income;

(b) took the position that he had a more affluent lifestyle and hidden resources than those which he was disclosing;

(c) argued that the Court should now go behind two prior Consent Orders of this Court, and order more support going back several years;

(d) argued that the Court should order the father to pay an above guideline amount of child support. The amount she sought, if ordered, would have exceed his entire annual income;

(e) took the position that the father failed to provide disclosure; and

(f) submitted that the Court should order the father to provide bank statements and much other disclosure, to enable the mother to advance the arguments above.

[26] I concluded there was no basis to make any of those findings and orders. Moreover, the mother did not comply with her own disclosure obligations, particularly as they pertain to section 7 expenses. Yet she now disputes the Court’s ruling on that issue, despite her failure to place the necessary information before it.

[27] At ¶ 21 of the Judgment, I found that what was in issue in the litigation was entirely disproportionate to the steps and the positions the mother was taking, or wished to take. At ¶ 24, I found that the mother had filed an excessive amount of material, numbering in the hundreds if not in excess of one thousand pages, or more. The mother’s conduct of filing voluminous materials continues. She blatantly ignored the Court’s direction limiting the length of costs submissions. She complains that the page limit means she was only able to give “limited information”. Yet she filed 45 pages of submissions, plus attachments, in any event.[^2]

[28] I have no hesitation in finding that the mother’s behaviour has been neither reasonable nor proportional in relation to the importance and complexity of the issues, withing the meaning of rule 24(12)(a)(i). I do not need to address father’s references to the mother’s alleged bad faith behaviour, or whether her behaviour rises to that threshold, to warrant an order for full recovery costs since the father already restricted the quantum of his claimed costs.

(2) Time Spent and Fees Incurred

[29] I turn next to subrules 24(12)(a)(ii), (iv) and (vi). Mr. Teitel was called to the bar in 2014. His rate of $300 is reasonable, especially having regard to the skill he demonstrated in the presentation of the father’s case.

[30] The mother asserts that the time spent by Mr. Teitel was excessive or disproportionate to the issues in this case. Mr. Teitel’s task was made more difficult by the mother’s approach to the litigation. He was required to read and respond to excessively voluminous materials. He was required to respond to meritless claims. He had to advance the father’s own position, too.

[31] Costs should be proportional to the issues. But greater proportionality by father was impossible to achieve in the face of the positions and steps taken by the mother. The time spent by father’s counsel was necessary in these circumstances.

[32] Despite this context, and the significant financial litigation costs to father (who is also of limited means), he only asks for costs of $15,000.00. This is about 54% of his total Bill of Costs of $27,810.20. The father’s Bill of Costs only includes costs in relation to the two motions before the Court on September 21, 2020. Unlike the mother, he has not attempted to go back over the history of this case and claim costs for prior events.

[33] The father’s submissions state that he wishes to be mindful of the mother’s limited financial means. He has been. And I am told that Mr. Teitel did a good amount of work pro bono.

(3) Offers to Settle

[34] The mother asserts that she made several Offers to Settle. The Offers include her restricting her request for disclosure to three years of bank statements only, as well as terms to settle the Motion to Change itself. None of the copies of her Offers included in her Costs Brief are signed.

[35] The father alleges that the mother may have filed Offers that she either did not serve, or that she may have manufactured for her costs submissions. Given the seriousness of that allegation, the mother should be given an opportunity to respond. But I decline to invite such a response because, in the context of this case, it is not necessary. Even if the Court accepts that the mother’s Offers to Settle are genuine and that they were served when she says they were, she did not achieve a result more favourable than the Offers respecting disclosure, nor the substantive terms. It serves neither party’s interests to invite further materials or submissions on point, with their attendant added cost to both parties, when they have no actual impact upon the result.

[36] Had the father not restricted his costs claim to $15,000.00, I would have considered applying Rule 18 to order even more costs. As I already indicated, the result ordered by the Court matched or exceeded numerous portions of the father’s three severable Offers to Settle. And so the costs provisions of Rule 18(14) are engaged in relation to these severable Offers. But given the father’s overall position, I need not decide how to apply rule 18(14) to this case.

D. Summary

[37] As the Ontario Court of Appeal held in Beaver v. Hill, 2018 ONCA 840 ¶ 12, “… proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.” I find that the father’s request for costs of $15,000 to be more than reasonable and proportionate in all of the circumstances.

[38] The mother relied on an inability to pay costs to argue that no costs should be ordered against her. I have not ordered that outcome. I am taking into account her ability to pay below, when considering the father’s request for set off. I would have also entertained a further request from the mother for a repayment schedule, but neither side made submissions.

E. How Costs Will Be Paid

[39] The father asks that the mother’s costs be set off against the child support arrears of $5,563.37 that this Court determined he owes the mother at paragraph 293(g) of the Judgment. Alternatively, if set off is not a remedy within the jurisdiction of this Court to order on these facts, or if the Court declines to order a set off on the merits of the argument, then the father asks to repay his child support arrears at the rate of $90.00 per month.

(1) The Jurisdiction of the Ontario Court of Justice to Order Set Off

[40] In M.P.A.N. v. J.N., 2018 ONCJ 769, this Court canvassed the jurisdiction of the Ontario Court of Justice to set off costs against an order for the repayment of an overpayment of child support. At ¶271 of M.P.A.N. v. J.N., I found that set off may arise by agreement of the parties, by operation of a statute (legal set off), or in equity. The Superior Court has jurisdiction to order equitable set off, whereas this Court, a statutory Court, lacks the jurisdiction to award equitable relief. See section 96(3) of the Courts of Justice Act. This makes it important, when considering decisions about set off, to pay attention to the level of Court deciding the issue, and the legal basis underlying the set off.

[41] Section 111 of the Courts of Justice Act empowers this Court to order legal set off. The parameters of section 111 are stricter than those which apply to equitable set off. To make out a claim for legal set off under section 111 of the Courts of Justice Act, the proceeding must be an action for a payment of a “debt”, and the responding party must have a claim to set off a “debt” owing to him or her from the plaintiff or applicant. If so, those debts may be set off against each other, even if they are of a different nature. See ¶273-275 of M.P.A.N. v. J.N. Unlike equitable set off, section 111 of the Courts of Justice Act requires that there be “mutual cross-obligations of debts”.

[42] In M.P.A.N. v. J.N., I concluded that set off was an available remedy on the facts. That case involved costs orders being set off against an order for the repayment of an overpayment of child support, claimed under section 8.4(4) of the Family Responsibility and Support Arrears Enforcement Act, 1997, S.O. 1990 c. 31. At ¶286-293 of M.P.A.N. v. J.N., I found both obligations to be “judgment debts”, and as such that there were “mutual cross-obligations of debts” within the meaning of section 111. In arriving at that conclusion, I was guided by the clear wording in sections 1(1) and 8.4(6) of the Family Responsibility and Support Arrears Enforcement Act, 1997, that an order for the repayment of an overpayment of support under the section 8.4(4) is not a “support order”.

[43] In this case, I would apply the same reasoning in M.P.A.N. v. J.N., to conclude that the costs order is “judgment debt” and therefore a “debt” within the meaning of section 111 of the Courts of Justice Act. But here, the father seeks to set the mother’s cost debt off against is his obligation to pay child support arrears. And unlike the situation in M.P.A.N. v. J.N., those arrears are a child support order. That raises a question about whether the latter is also a “debt”.

[44] In M.P.A.N. v. J.N., I did not need to decide whether a child support order may be set off against costs, under section 111 of the Courts of Justice Act. The case law varies widely as to whether that may be done, and if so, whether that should be done. I turn to that next.

[45] At ¶ 282 of M.P.A.N. v. J.N., I said the following about this Court’s jurisdiction to order set off involving a child support order:

…. some other cases[^3] say that child support is the right of the child. At least one case referred to support as a “personal obligation” not a debt. Although the cases don’t specifically say this, in such an instance, it may be that there would be no “mutuality” as required by section 111 of the Courts of Justice Act. Or if the obligation to pay support is not a “debt”, then statutory set off would not be available at all. In which case it could not be ordered by the Ontario Court of Justice.

[46] Few cases contain any analysis about whether a child support order is a “debt” for the purposes of legal set off under section 111 of the Courts of Justice Act. Some cases consider whether to order set off on the merits, without considering the underlying jurisdiction of the Court to do so. One of the few cases, if not the only case, that specifically considers the parameters of section 111 of the CJA is Del Pozo v. Del Pozo, 1992 CanLII 7577 (Ont. Prov. Div.). In obiter, James J. questions the applicability of section 111 as giving this Court the jurisdiction to order set off. The Court ultimately allowed the father to set off certain direct payments he had made to his adult children, against support arrears that were otherwise owing to the mother. The issue arose in the context of a support enforcement hearing, not a child support proceeding itself.

[47] In my view, whether costs may be set off against child support under section 111 of the Courts of Justice Act turns on the proper characterization of a child support order as a debt. And within that discussion, it may be appropriate to draw further distinctions between retroactive and future child support, although ultimately for the reasons below, I need not determine the import of that distinction.

[48] I begin with Jamieson v. Loureiro, 2010 BCCA 52, where the British Columbia Court of Appeal considered whether to set off child support against costs. The British Columbia Court of Appeal was clearly considering equitable set off, as opposed to set off according to a statutory provision like section 111 of the Courts of Justice Act, so the question of whether there were “mutual cross-obligations of debts” was not squarely in issue.

[49] The British Columbia Court of Appeal reiterated that child support was the “right of the child”, citing D.B.S. v. S.R.G., 2006 SCC 37 among other decisions. In the result, it declined to set off costs and child support, finding that the costs were too disconnected from the child support, even where those costs were ordered in connection with an application to vary child support. See ¶ 52-61.

[50] While the case does not specifically say that child support is not a “debt” (perhaps because a provision like section 111 of the Courts of Justice Act was not in issue), the reference to child support being “the right of the child” raises the question about whether the mutuality requirement under a provision like section 111 can ever be met.

[51] Justice Martin’s concurring opinion in the more recent decision of the Supreme Court in Michel v. Graydon, 2020 SCC 24 provides additional, different and helpful guidance on that particular question, which now confronts this Court. Martin J. refers to child support (and perhaps more particularly, to retroactive or “historical” child support) as the “right of a child”, a “financial entitlement due to children by their parents”, or other like concepts, just as the British Columbia Court of Appeal did in Jamieson v. Loureiro. See Michel v. Graydon at ¶38, 41, 54-56, 60, 77. This suggests, as some previous cases have stated, that although it is money paid to the other parent, it is paid for the benefit of the child and therefore should have some special or different treatment.

[52] However, Martin J. simultaneously refers to the obligation to pay retroactive or historical child support as a “debt”, too. And the person to whom this “debt” is owed (that is, the child, the parent or someone else), will depend on the governing legislation, the facts of the case, the identity of the applicant, and the court’s ultimate Order. For example, at ¶ 41, Martin J. characterizes child support as both the right of the child, and a debt. She describes a retroactive award (under British Columbia’s provincial legislation) as a way to enforce “such pre-existing, free-standing obligations and to recover monies owing but yet unpaid”, a “debt… which does not evaporate or fade into history…”, and she says that a “debt exists if the child qualified as a beneficiary at the time the support was due…”

[53] Elsewhere in the decision, Martin J. makes it clear again that past unpaid child support obligations are a debt. And she calls it a debt that is on “equal footing” with other kinds of debt. Specifically, at ¶ 78 she writes:

When modern family law obligations took shape, it became essential to remove any vestige of the view that child support obligations were a lesser form of debt. … Unmet child support obligations, whether they are in the form of arrears or have not yet been judicially recognized, are “a valid debt that must be paid, similar to any other financial obligation”, regardless of whether the quantum is significant.

[54] By way of further example, at ¶ 79, Martin J. writes that while a child support “debt” may be forgiven by a court, it remains true that such a “debt” is owed from the moment it ought to have accrued. And at ¶ 99, she writes that “what is really at stake is monies that ought to have been paid for the care and support of children but were directed elsewhere”.

[55] On the one hand, Martin J. does write, in some passages, in a way that suggests the money or “debt” is owing to the child. For example, at ¶ 73 when discussing the ability to request historical support, she says “[t]he courtroom doors should not be closed because certain categories of debts owed to children are classified as coming “too late” [emphasis added]. But then at ¶132, Martin J. writes this:

Retroactive child support is a debt; by default, I see no reason why it should not be awarded unless there are strong reasons as between these factors not to do so. Historical child support can be awarded in part or in whole to either or both the child or their parent, given findings of act and depending on whom the hardship – if there was any – was visited upon.

[56] So while many cases characterize child support as the right of the child, and in some instances as money owing to the child, I read Martin J.’s comments, as a whole, that it is an obligation, enforced as a debt, and that it may be owing as between a payor parent and a recipient parent, or as between a parent and a child, or as between a parent and someone else. Indeed, paragraph 132 of the opinion, and the wording of the governing statute, map out to whom the “debt” may be owed. In a nutshell, in Michel v. Graydon, Martin J. states the debt will be owed to the person to whom that the Court finds is owed the money. While Michel v. Graydon was decided under British Columbia’s provincial legislation, Ontario’s Family Law Act, R.S.O. 1990, c. F-3, as amended, similarly gives this Court latitude to determine to whom this “debt” is owed (see sections 29, 33 and 37of the Family Law Act).

[57] This characterization of child support arrears as a debt for the purposes of set off has found expression in prior, lower court decisions. For example, in Woo v. Chin, 2007 CanLII 50880 (Ont. S.C.J.), Herman J. ordered set off, but the child support that she set off only consisted of arrears. Specifically, she ordered that certain amounts owing from Ms. Woo to Mr. Chin on account of retroactive child support, be set off against Mr. Chin’s equalization payment, costs award and interest owing to Ms. Woo.

[58] While Woo v. Chin does not specifically address whether the Court is ordering legal or equitable set off, at ¶ 59, Herman J. does refer to the amounts being set off as “debts”. And at ¶ 57, she states:

The distinction between ordering a set-off of arrears but not of prospective support presumably derives from a consideration that, in the case of an award for arrears, the award may not directly benefit the child, but rather, may be compensation to the parent for expenses that have already been incurred. The same logic would apply to an order for retroactive support. In this case, there is the additional factor that Mr. Chin did not comply with his child support obligations when the children were with Ms. Woo.

[59] Likewise, Perkins J. set off child support arrears against other family law obligations in Colt v. Colt, 2009 CanLII 77491 (Ont. S.C.J.). Unlike in Woo v. Chin, ¶ 28 Perkins J. clearly stated he was making such an order under section 111 of the Courts of Justice Act, rather than by way of equitable set off. Referring to the particular obligations to be set off, Perkins J. said, “[t]hough it is often not applied to child or spousal support, the sums in question in this case are all in after-tax dollars and there seems no public policy reason why NFP or costs entitlements should not be set off against any support arrears.” While Perkins J. does not specifically characterize the support arrears in Colt v. Colt as a “debt”, it is an implicit, necessary element of his analysis; otherwise section 111 of the Courts of Justice Act could not have applied.

(2) Conclusion About the Nature of the Child Support Arrears in this Case

[60] In the Judgment, I determined that the father owes child support arrears of $5,563.37 and that the mother is the person to whom they are owed. Applying Martin J.’s comments from Michel v. Graydon, and the Courts’ comments in Woo v. Chin and Colt v. Colt, I find that what the father owes the mother is a “debt” for the purposes of section 111 of the Courts of Justice Act. I see no basis to characterize those arrears differently, just because the claim is now for set off under section 111 of the Courts of Justice Act, as opposed to the underlying claim for historical support itself.

(3) Whether the Court Should Order Set Off

[56] Having found the jurisdiction to order set off under section 111 of the Courts of Justice Act, I must now consider whether to do so. Courts having jurisdiction to order set off have taken varying approaches to whether, and if so, to what extent they might order it. At ¶ 280 and 281 of M.P.A.N. v. J.N., I said the following about how the case law has approached this question:

[280] To begin, a number of cases consider whether a Court should set-off costs orders against prospective support orders, or against arrears of support, or against other family law obligations, like an order for an equalization of net family property. In cases where a party seeks to set off costs against ongoing support, some cases draw the distinction between whether the ongoing support order in question is child support or spousal support. Where the support order in question is child support, some cases refuse to order set-off and express a concern that a set-off order will harm the child by depriving him or her of ongoing support.

[281] One decision of this Court distinguished a decision of the Superior Court, and refused to draw such a ‘bright line’ rule, preferring to look at the reality of the situation and how money is actually spent. In that case, this Court set-off child support and costs. Other decisions have further drawn distinctions, making it seemingly more easy to obtain set-off against child support arrears rather than ongoing child support. [^4]

[61] Peers v. Poupere, 2008 ONCJ 615, is a frequently cited decision of this Court about set off. It adopts a flexible approach, largely on policy grounds. In that case, the Court set off costs against future child support. The Court distinguished cases that held set off against future child support was not possible or should not be ordered. In so doing, the Court said the following at ¶ 60-62 of the decision:

[60] ... the notion of treating child support payments as a segregated fund does not mesh with the reality of how parents normally run their lives. Accordingly, whether a court is prepared to make a set-off order should depend less on an unyielding rule and, rather, upon the facts of each case. In my view, the inquiry should be directed to ascertaining what is reasonable, fair and just in all the circumstances of a particular case.

[61] To impose a blanket prohibition against set-off orders would, in some cases, give a support recipient licence to litigate and to act as unreasonably as he or she saw fit, possibly with complete impunity. That kind of conduct has the potential to drive a support payor of modest means into financial ruin. It must not be forgotten that an order for costs is only as good as the ability to enforce that order.

[62] One of the primary goals of rules and, in particular, the costs provisions, is to discourage litigation, to encourage parties to act reasonably, and to ensure that parties are potentially held liable for unreasonable choices that they decide to make.

[62] But in this case before me, I am not deciding about whether to set off costs against future child support. Applying the reasoning extracted from many of the cases I referred to in M.P.A.N. v. J.N., I am prepared to make the more limited set off order sought by the father in this case.

[63] The Court acknowledges that the mother went without the full amount of child support to which she was entitled at the material time, resulting in the Court’s retroactive or historical award. At first blush, this militates against an order for set off. However, as already expressed above, the mother conducted this litigation in a manner that has caused financial harm to the father. She behaved unreasonably and disproportionately.

[64] I also am aware that the mother owes the father other costs orders from other courts. Significantly, she has declared that she will not pay the father any money “under any circumstance”. Specifically, at ¶ 122 of the mother’s costs submissions, the mother said this about herself and about her future intentions:

The applicant mother is also a victim. I believe there are also certain restrictions that should prohibit a court from ordering that “a victim of sexual assault, rape or domestic violence” has to “pay their abusers or rapist money.” (This would also include legal fees and costs) The applicant will not pay the respondent father money under any circumstance [emphasis added].

[65] This Court has not made any such finding of abuse and is unaware of any other court having made such a finding against the father. So even if the mother’s statement of the law is correct (about which I will not comment), I fail to see how it would apply in this case.

[66] Absent a set off order, I find the father will not collect, certainly not in the near future or without incurring additional costs and hassle. That effectively undermines the very purposes of making a costs order.

[67] Finally, regarding any financial harm to the child that the set off order might cause, father has only asked to set off the costs order against the arrears he owes. The costs owing to father by the mother exceed the child support arrears owing to the mother by the father.

[68] I find it significant that he has not sought to set off the balance of the costs against his future child support. This means the mother will continue to receive periodic prospective child support, for the benefit of the child, in accordance with his legal obligation set out in the Judgment.

[69] To be clear, I am just dealing with the arrears that the father owes the mother. I do not purport to decide whether the father’s future, periodic child support payments that have not yet accrued are a “debt” for the purposes of set off under section 111 of the Courts of Justice Act, and if so, whether such a set off order would have been appropriate in this case. He has not asked the Court to decide this.

[70] The father’s alternative request, at ¶ 9 of his written submissions, should this Court decline to make the set off order sought, is to pay off the child support arrears off at the rate of $90.00 per month commencing September 1, 2021. He says this will provide him with a small period of time to financially recover from this litigation.

[71] I am sympathetic to that request, although given that mother has launched an appeal of this Court’s Judgment, and apparently a motion for leave to appeal to the Court of Appeal too in connection with prior Divisional Court proceedings, I am not certain how much of a financial break that would have actually afforded the father. In any event, this alternative request is moot in light of my ruling about set off. But to be clear, if my analysis respecting set off is wrong, I would have granted him this alternative request.

F. Corrections to the Judgment of November 3, 2020

[72] There is a final issue regarding potential revisions to the Judgment. Two revisions were raised by the father and two were raised by the Court itself in the Judgment. I will address the father’s two issues first.

[73] First, at ¶ 126-127 of her affidavit sworn July 13, 2020, at ¶ 49-50 of her affidavit sworn August 21, 2020, and at ¶123-126 of her Factum for the September 21, 2020 motions, the mother accused Mr. Teitel of various behaviour, directed at her. She then said that a “Superior Court Judge” and “other lawyers” acknowledged his behaviour, in support of her assertions against him. In making the latter statement, she cited certain decisions from the Superior Court. The style of cause of those other Superior Court decisions is E.M.B. v. M.F.B.

[74] As it turns out, Mr. Teitel represents E.M.B. in that other case. And coincidentally, the Respondent in that Superior Court case is named “M.F.B.” I use the word “coincidentally”, because the mother’s initials in this case before me, are “M.B”.

[75] I reviewed those Superior Court decisions. While I did not rely on them for the purpose for which the mother supplied them to the Court (namely to make findings about Mr. Teitel’s conduct), based on the confusing manner in which the mother wrote her affidavit and her Factum, and based on the unfortunate similarity of the Respondent’s initials in that other case to the mother’s in this case, I was led to believe that the mother in this case before me is one and the same person as “M.F.B.” I wrongly inferred that the mother is therefore in litigation with someone else in another court, in which Mr. Teitel is also opposing counsel.

[76] As such, at ¶ 5 and 8 of my Judgment, when summarizing the mother’s financial circumstances, I explained that while she told this Court that she receives ODSP, the Superior Court found that “M.F.B.” was employed. Nevertheless, at ¶ 39 of the Judgment, I went on to describe the mother’s financial circumstances, based on the documentary record before this Court. Insofar as her income was concerned, that consisted of ODSP and government benefits, not employment income.

[77] Having now read ¶ 27 of the father’s costs submissions, I acknowledge that portions of ¶ 5 and 8 of the Judgment contain a factual error. I acknowledge that error insofar as I made reference to the Superior Court’s finding about the other M.F.B., who is employed, being one and the same person as the mother in this case before me.

[78] The father asks that my reference to E.M.B. v. M.F.B. be removed from the Judgment pursuant to rule 25(19)(b) of the Family Law Rules. He notes that my references to E.M.B. v. M.F.B. actually had no bearing upon my decision. Given mother’s appeal of the Judgment, I decline to make this amendment. Mr. Teitel is free to make whatever arguments he sees fit on behalf of the father in the appeal, as is the mother. The appellate Court is the proper Court to decide whether my factual error impacted the result.

[79] Second, and related to this, the father submits that my decision need not have been initialized. To be clear, this Court has not made a sealing order, nor an order restricting publication, nor an order that the title of proceedings be amended to use initials in this case. Nor did I use initials because the Superior Court did in the other case.

[80] Rather, my use of initials in the Judgment was done at my own initiative, in an attempt to limit identifying or other sensitive information about the parties and the child going out into the public domain. I did so particularly out of a concern for the child, A.B., and that he not be embarrassed or harmed in the future by the dissemination of any information about him or his parents.

[81] Regarding the two potential revisions to the Judgment raised by the Court, the first relates to my determination of the father’s income for 2017. Specifically, the determination of the father’s income for 2017 included a gross up calculation. At ¶ 249 of the Judgment, I wrote:

The father has argued against a gross-up and the mother is acting on her own. As such, neither side therefore gave me a gross-up calculation. Rather than go to the time and expense of having the parties submit additional material, I have used DivorceMate to calculate the gross up based on the tax rates in 2017. My calculation is attached to this decision as Schedule “A”. If, and only if, either side believes there is a calculation error in my gross up calculation, the parties may make brief submissions about this when they make costs submissions. This is not an invitation to re-litigate anything else, or to challenge any findings of fact or conclusions that I have made in this decision[^5].

[82] As set out at ¶ 10 of his written costs submissions, the father takes no issue with the Court’s calculations. The mother, however, does. At ¶ 171, the mother says that she does not agree with the Court’s gross- up calculations because they only state the father’s 2017 income and the amount I included from the motor vehicle accident settlement, but “no information about the applicant mother. It’s BARE”. The amount of the gross -up is based on the father’s circumstances and tax rates. The mother has not explained what information of hers might impact the gross- up calculation. Nor has she supplied me with an alternative calculation. Therefore, there will be no change to that calculation.

[83] Finally, the arrears calculation of $5,563.37 assumed the father made certain ongoing child support payments in October and November 2020 (ie. between the date of argument and the release of the Judgment). I indicated in the Judgment that I would adjust the math, if in reality, he did not make those payments. See ¶ 293(h) of the Judgment.

[84] At ¶ 10 of his written costs submissions, the father confirmed that he paid those amounts. The mother has not challenged otherwise.

PART IV: ORDERS

[85] Based on the above, I make the following orders:

(a) The mother shall pay costs to the father of $15,000.00;

(b) The arrears owing by the father to the mother in the amount of $5,563.37 shall be set off against the costs of $15,000.00 that the mother now owes the father;

(c) Therefore, the net amount of costs owing from the mother to the father, after the set off, shall be in the sum of $9,436.63; and

(d) The father’s counsel may submit the draft Order to my attention for my signature, by email to the judicial secretary, without the need to secure the mother’s approval as to form and content.

Released: January 26, 2021

Signed: Justice Alex Finlayson

[^1]: For further context about the transcripts, and for an explanation as to why/how the mother even has these in her possession in the first place, see ¶ 65, 74,137, 210-212 and 260-271 of the Judgment.

[^2]: Although they are voluminous, I take no issue with the amount of attachments. The father also filed a number of attachments. Mostly, the attachments to both sides’ costs submissions are cases. But the father’s written submissions themselves complied with the Court’s direction as to page limits.

[^3]: The various cases I summarized are cited at ¶284 of M.P.A.N. v. J.N.

[^4]: Again, the various cases summarized in these quotes are cited at ¶284 of that decision.

[^5]: See also ¶ 293(i) of the Judgment.