ONTARIO COURT OF JUSTICE
DATE: June 4, 2025
COURT FILE No.: Toronto DFO-19-15633
BETWEEN:
R. H.
Applicant father
— and —
S. C.
Respondent mother
Before Justice Sheilagh O’Connell
Respondent’s Motion for Enforcement of Costs
Reasons for Decision
Poroshad Mahdi — agent/counsel for the applicant
Leah Simeone — agent/counsel for the respondent
Introduction
[1] This is a motion brought by the (respondent) mother for the enforcement of a cost order against the (applicant) father, made on consent of the parties on March 8, 2024, following a trial completed on November 14, 2023.
[2] Specifically, the mother seeks an order that the sum of $19,200.00 plus interest, which is the outstanding amount of costs owed by the father to the mother, be payable as support and enforced as an incident of support by the Director of the Family Responsibility Office (“FRO”) pursuant to clause 1(1)(g) and 58(2) of the Family Responsibility and Support Arrears Enforcement Act.
[3] The main issue in this motion is whether the court can now make an order, as requested by the mother, that the legal costs owed by the father be designated payable as support and enforced as an incident of support by the Family Responsibility Office (“FRO”).
[4] The mother also seeks an order that the costs of this enforcement motion and the 14b motion brought to set the date be payable as support and enforced as an incident of support by the Family Responsibility Office should she be successful.
[5] In addition to the above, although not set out in her Form 14 Notice of Motion, the mother sought the following relief in her 14C Confirmation form for the motion:
a. an order that the father should immediately sell his truck and pay the mother the proceeds of sale of the truck for the amount outstanding;
b. an order barring the father from initiating any further proceedings or a motion to change as against the mother until the full sum of costs owing have been paid;
c. an order that the father shall immediately provide his full social insurance number to the mother to provide to the Family Responsibility Office;
d. an order that the father shall immediately provide the bank statements for any accounts opened by him for the parties’ child, O. C., from December 1, 2023 to present.
Background
[6] The father is 60 years old. The mother is 40 years. Both parties are in receipt of Ontario Disability Support Program benefits (ODSP).
[7] They are the biological parents of one child, now approximately 9 years old.
[8] The father commenced this application in 2019. The parties were involved in lengthy litigation involving the child culminating in a trial before Justice Wiri Kapurura in the fall of 2023.
[9] The trial took place over seven days. Justice Kapurura released his judgment on November 14, 2023.[1]
[10] On or before the commencement of trial, the parties executed final Minutes of Settlement regarding the child support and section 7 expenses. Both parties were in receipt of ODSP and they agreed that no child support be paid to either parent.[2]
[11] As Justice Kapurura states in the first paragraph of his decision, the trial was about the parenting arrangements for the child.[3] It is clear from reading the judgment that the parenting issues between the parties were highly conflictual and involved allegations of abuse, violence, substance misuse, and neglect by both parents against each other. The Office of the Children’s Lawyer was involved with the family and had prepared a section 112 clinical investigation and report.
[12] It is also apparent from reading Justice Kapurura’s detailed and thorough judgment that the evidence and issues at trial dealt entirely with the parenting issues between the parties and the mother’s request for a restraining order.
[13] Following the completion of the trial, Justice Kapurura granted the mother sole decision-making responsibility and primary residence and expanded parenting to the father. He dismissed the mother’s request for a restraining order. He made a multi-pronged order regarding decision-making, holidays, special occasions, contact, communication and information, travel, and other issues.
[14] Regarding child support Justice Kapurura states the following at paragraphs 135 to 139 after he ordered that the mother primary residence:
“At the commencement of the trial, the parties executed final minutes of settlement providing for no child support payment to either parent. They agreed to share section 7 expenses equally.
Both parents are in receipt of ODSP benefits.
The parenting order made by this court results in the child residing primarily with the mother. The father will be required to pay child support to the mother due to the child’s residential arrangements.
The court will require the father to pay child support to the mother, for the child, in the amount of $25.00 per month, commencing December 1st, 2023. The father will be required to notify the mother once he obtains employment, or if he stops receiving ODSP benefits.
The court will grant the parties’ request to equally share section 7 expenses. However, the court is not inclined to make an order with respect to the child’s cellphone bill.”[4]
[15] This is the only reference to child support and section 7 expenses in the 154 paragraphs of the decision, other than the final orders in the conclusion reflecting the above.
[16] Justice Kapurura addressed the issue of costs at paragraph 153 of his decision:
“[153] The mother was the successful party. If she seeks costs, she shall serve and file written submissions by December 1, 2023. The father will then have until December 22, 2023, to serve and file his written response. The submissions shall not exceed three pages, not including any bill of costs or offer to settle. The submissions are to be either delivered or emailed to the trial coordinator’s office.”
[17] According to the affidavit evidence supporting the mother’s enforcement motion, the parties’ lawyers negotiated and resolved the issue of costs rather than filing cost submissions and bills of costs.
[18] Counsel then submitted a 14b motion with signed Minutes of Settlement and an approved draft Order, which was reviewed, granted, and signed by this court in chambers.
[19] The Consent Order regarding costs, dated March 8, 2024, reads as follows:
- The father shall pay the Respondent costs of $20,000, inclusive of fees, disbursements, and HST.
- The father may pay these costs as follows:
a. At the rate of $555.00 each month, starting on January 1, 2024, and continuing the first day of each month and thereafter for the following twenty-four months;
b. The remaining balance on costs shall be paid in full by December 31, 2025. - However, if the father is more than 30 days late in making any monthly child support (including Table amount and section 7 expenses) or cost payments, the remaining amount shall become due and payable.
[20] Following the Consent Order, the father made two payments of $400.00 in January and February of 2024 respectively. He has not made any further payments. The father currently owes $19,200.00 in costs, not including the interest owed pursuant to the March 8, 2024 Order.
[21] The father states that he cannot afford to pay the costs owed. In his responding affidavit to the mother’s motion, he deposed that he was extremely unhappy with his previous lawyer, and that he felt pressured into signing the Minutes regarding costs.
[22] The mother states that the father is working under the table in construction and owns an expensive Ford pick-up truck which he paid for in cash, with a re-sale value of $10,000.00 to $26,000.00.
[23] There is no reference to any of the mother’s allegations regarding the father’s sources of income (other than his ODSP) in the trial judgment, which was not in dispute.
The Law and Governing Principles
[24] The mother relies on the definition of a “support order” under section 1(1) of the Family Responsibility and Support Enforcement Act, S.O. 1996, c. 31 (“the Act”), and on section 58(2) regarding the enforcement of orders to collect fees.
[25] The definition of a “support order” under Section 1(1) of the Act reads as follows:
Definitions
“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,
(a) the payment of an amount periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event,
(b) a lump sum to be paid or held in trust,
(c) payment of support or maintenance in respect of a period before the date of the order,
(d) payment to an agency of an amount in reimbursement for a benefit or assistance provided to a party under a statute, including a benefit or assistance provided before the date of the order,
(e) payment of expenses in respect of a child’s prenatal care and birth,
(e.1) payment of expenses in respect of DNA testing to establish parentage,
(f) the irrevocable designation, by a spouse who has a policy of life insurance or an interest in a benefit plan, of the other spouse or a child as the beneficiary, or
(g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance, [Emphasis added by the court]
and includes such a provision in,
(h) a domestic contract that is enforceable under section 35 of the Family Law Act, or
(i) a notice of calculation that is enforceable under section 39 of the Family Law Act.
(“ordonnance alimentaire”) 1996, c. 31, s. 1 (1); 1999, c. 6, s. 26; 2002, c. 13, s. 57 (1); 2005, c. 5, s. 28; 2005, c. 16, s. 1; 2014, c. 7, Sched. 10, s. 1 (1); 2016, c. 23, s. 48; 2020, c. 25, Sched. 1, s. 29 (1); 2021, c. 4, Sched. 11, s. 10; 2023, c. 9, Sched. 16, s. 25 (1).
[26] Subsections 58(2) and (3) of the Act read as follows:
Enforcement of orders to collect fees, etc.
(2) The Director may continue to enforce a support order or support deduction order to collect an amount described in subsection (3), even if,
(a) the support order or support deduction order to which the amount relates has been withdrawn from the Director’s office;
(b) there is no current support obligation, and there are no arrears, or any arrears are rescinded by a changed support order; or
(c) the support obligation has terminated and there are no arrears, or any arrears are rescinded by a changed support order. 2005, c. 16, s. 33.
Same
(3) Subsection (2) applies with respect to,
(a) fees;
(b) costs awarded to the Director by a court;
(c) any amount owed to the Director as reimbursement for money paid to a recipient; and
(d) any amount similar to the ones described in clauses (a), (b) and (c) that is owed to a support enforcement program in a reciprocating jurisdiction or contracting state, if the support order to which the amount relates is registered in Ontario under the Interjurisdictional Support Orders Act, 2002 or the International Recovery of Child Support and Family Maintenance Convention Act, 2023. 2005, c. 16, s. 33; 2023, c. 9, Sched. 16, s. 25 (7).
[27] It is well established that the court has the jurisdiction to order that costs awarded or consented to in family proceedings can be enforceable as support by the Family Responsibility Office under the above provisions. See: Clark v. Clark, 2014 ONCA 175 at para. 70.
[28] The advantages of an order under these provisions are that the costs award is enforceable by the Family Responsibility Office and the order is not discharged in a bankruptcy by virtue of section 178(1)(c) of the Bankruptcy Act. See: Wildman v. Wildman, 2006 ONCA 33540 at para. 55.
[29] However, the case law also establishes that legal costs payable and enforced as an incident of support by FRO must arise “in relation to the issue of support or maintenance”, as stated in subsection 1(1)(g) of the Act.
[30] The plain language of the Act makes that clear. The French language version of the Act, as the Court of Appeal noted in Clark v Clark,[5] makes it even more clear, as it states at paragraph 62:
[62] The French language version of s. 1(1)(g) of the Act is cast somewhat more narrowly than its English language counterpart. Whereas the latter version of the section refers to legal fees or other expenses “arising in relation to” support or maintenance, the French language version employs the phrase “découlant de” [i.e. ‘flowing from’] a support or maintenance obligation.
[31] Although the court has considerable discretion to determine what portion of the costs of litigation are attributable to support where multiple issues are being litigated, the fact remains that the legal costs must still arise in relation to support. See: Sordi v. Sordi, 2011 ONCA 665 at para. 25, which reads as follows:
[25] The court has considerable discretion over how to deal with a request that legal costs be designated as support for the purposes of enforcement by FRO, a designation that is complicated when, as here, in addition to support, a number of other issues are litigated. In this case the trial judge approached the problem one way – he did his best to identify the portion of the trial consumed by the support dispute, assigned a cost amount to it and ordered that amount designated as support. He may have chosen not to attempt to perform what is admittedly a somewhat arbitrary dissection of costs. But he cannot be faulted for doing what he did. The statute and case law support an approach of this nature: see Hatcher v. Hatcher, [2009] W.D.F.L. 5320 (Ont. S.C.) at paras. 30-36.
[32] A flexible and broad approach has been endorsed when the court is determining what proportion of costs should be allocated to the support issues in a trial. The exercise of discretion to invoke section 1(1)(g) depends on the facts of each case. See: Shelley v. Shelley, 2019 ONSC 2830 at paras. 26 and 30.
[33] In Thompson v. Drummond, 2018 ONSC 4762, Justice Debra Chappel stated at paragraph 46:
[46] A judge addressing the issue of costs has a wide scope of discretion in deciding how to deal with a request that legal costs be designated as arising in relation to support. The need for discretion is particularly compelling in cases involving numerous family law issues in addition to support matters. In such circumstances, the judge may estimate the portion of the costs award that pertains to the support issue and designate that portion of the award as being enforceable by the FRO. Alternatively, the court may designate the entire costs order as arising in relation to support if the principal issues related to support and the court is satisfied that it is impractical and inappropriate to dissect the costs claim to determine which parts relate to the support aspects of the proceeding (Stancati v. Stancati (1984), 49 O.R. (2d) 284 (Prov. Ct.), at 287; Wildman, at para. 59; Hatcher v. Hatcher, [2009] W.D.F.L. 5320 (Ont. S.C.J.), at para. 33; Sordi, at para. 25; Clark, at para. 81; Campbell v. Campbell, 2017 ONSC 3787, at para. 336; Beaver, at para. 69).
[34] In M.J.L. v. C.L.F., 2022 ONCJ 354, the mother sought an order that all her legal costs be payable as support and enforced as an incident of support by FRO pursuant to clause 1(1)(g) of the Act. Justice Stanley Sherr found that mother’s request that one hundred percent of her costs be enforced as an incident of support by the Director was unreasonable. The court found that most of the trial was spent on the parenting issues and allocated only thirty percent of the legal costs to support.[7]
[35] In Blackwood v. Nichols, 2022 ONCJ 357, there was a request that one hundred percent of costs be allocated to support in a motion for security for costs. The court found that only fifty percent of the costs should be allocated to the support issues.
[36] In Trevisanutto v. Crnkovic, 2005 ONSC 19789, the proceedings dealt solely with the issue of child support. The mother was the successful party and the court ordered that all the mother’s costs be enforceable as support under the Act.
[37] The costs in question need not necessarily relate to the hearing and adjudication stages of a support claim for the costs to fall within the scope of section 1(1)(g). They may pertain to a case management step in the case in which the issue of support was addressed. See: Meidell v. Meidell, 2013 ONSC 438; Arthur v. Arthur, 2019 ONSC 938.
Analysis
[38] Although this court has the jurisdiction to make an order after costs have previously been awarded or consented to in family law proceedings that the costs be enforceable as support by the Family Responsibility Office, the costs in question must still arise “in relation to the issue of support or maintenance”, as set out in 1(1)(g) of the Act.
[39] As was noted earlier in these reasons, this trial was about the parenting arrangements for the child.[8] It is clear from reading the judgment that the parenting issues between the parties were the primary if not the sole issues for trial, as well as the mother’s request for a restraining order. Although Justice Kapurura referred to child support as an issue at the beginning of his judgment, very little or no time was spent on it.
[40] The trial lasted seven days. Justice Kapurura’s detailed and thorough judgment is 31 single spaced pages. The parenting issues consumed virtually the entire trial. The evidence of the parents was highly conflictual and involved allegations of abuse, violence, substance misuse, and neglect against each other. Justice Kapurura carefully reviewed the law and legal considerations regarding the parenting issues in his analysis of the evidence.
[41] The parties executed final Minutes of Settlement on child support and section 7 expenses on or before the first day of the trial. As noted, both parties were in receipt of ODSP, and they agreed that no child support be paid to either parent.[9]
[42] The only reference to child support in the trial judgment is a brief section of four short paragraphs in a very lengthy judgment (except for the final order in the conclusion).
[43] As Justice Kapurura’s parenting order resulted in the child residing primarily with the mother, the court slightly modified the parties’ Minutes regarding child support and section 7 expenses and ordered that the father pay $25.00 monthly in ongoing child support to the mother.
[44] It does not appear that there was any dispute on this issue. There is no other evidence regarding child support, nor any further legal considerations regarding the issue in the judgment. The child support ordered in the conclusion mirrors the parties’ consent at the commencement of trial, but for the modification of ongoing support.
[45] The mother submits that significant time was spent before the trial in the case management process in addressing the issue of child support and relies on the case law that the costs in question need not necessarily relate to the hearing and adjudication stages of a support claim for the costs to fall within the scope of section 1(1)(g) of the Act.[10]
[46] The mother provided no evidence to support this submission. The mother did not provide a Bill of Costs regarding the time spent by her lawyer before or after trial on the issues of child support and section 7 expenses. There is no evidence that any of the legal costs incurred by the mother in this proceeding arose in relation to child support and maintenance, pursuant to section 1(1)(g) of the Act prior to trial.
[47] If this was in fact the case, it is unclear why a provision that the costs be designated as support for enforcement purposes was not included in the Minutes of Settlement or the approved draft Order for costs presented to the court. This omission did not appear to be an oversight given the “material” negotiations post-trial regarding costs, according to the mother’s supporting affidavit.
[48] The court is sympathetic to the mother’s frustration with the father’s refusal to comply with the Costs Order that he consented to following the conclusion of the trial regarding the parenting issues, especially given that she was essentially entirely successful on the parenting issues.
[49] However, it is clear from reading the plain language of the Act and the governing legal principles arising from the case law that this court cannot grant the relief that the mother is seeking.
Conclusion
[50] In considering all the above facts, as well as the legislation and governing legal principles, the mother’s motion is dismissed.
[51] Further, the alternative relief that the mother requested in her 14C confirmation form the day before the motion was not pled in advance in her notice of motion before the court. It would be procedurally unfair to address this relief without providing the father with proper notice and an opportunity to respond. The parties did not address these issues at the hearing of the motion.
[52] The mother is free to bring an enforcement motion under Rule 8 of the Family Law Rules and request such relief, if appropriate. Rule 8 was recently amended to include additional enforcement powers, as set out in Rule 1(8)(a.1):
Failure to obey order
1(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs;
(a.1) an order to pay an amount to a party or into court as a penalty or fine; [Emphasis added].
(b) an order dismissing a claim;
(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) an order postponing the trial or any other step in the case; and
(g) a contempt order, if sought under rule 31. O. Reg. 322/13, s. 1; O. Reg. 261/24, s. 1.
Order
[53] The Court makes the following order:
- The mother’s motion is dismissed without prejudice to bringing an alternative enforcement motion under Rule 8 of the Family Law Rules, or further alternative relief, if appropriate.
[54] Although the mother’s motion is dismissed, the court will not order costs in the father’s favour. Subrule 24(7) of the Family Law Rules, O. Reg. 114/99, provides that a successful party that has behaved unreasonably during a case may be deprived of costs or required to pay the costs of the unsuccessful party.
[55] In this case, the father has failed to comply with the March 8, 2024 cost order to which he consented. The father’s conduct in disregarding this court order cannot be condoned or rewarded by awarding him costs. Although the father was the successful party in this motion, he will not be awarded costs.
Released: June 4, 2025
Signed Justice S. O’Connell
Footnotes
[1] See: R.H. v. S.C., 2023 ONCJ 507
[2] See R.H. v. S.C., 2023, supra at paragraph 8.
[3] See: R.H. v. S.C., 2023, supra, at paragraph 1 of the decision.
[4] See: R.H. v. S.C., supra, at paragraphs 135 to 139.
[5] 2014 ONCA 175 at paragraph 62.
[6] M.J.L. v. C.L.F., 2022 ONCJ 354, at paragraphs 60 to 63.
[7] M.J.L. v. C.L.F., supra, paragraph 63.
[8] See: R.H. v. S.C., 2023 ONCJ 507 at paragraph 1 of the decision.
[9] See R.H. v. S.C., supra, at paragraph 8.
[10] See: Meidell v. Meidell, 2013 ONSC 438 (S.C.J.); Arthur v. Arthur, 2019 ONSC 938.