CITATION: Uriu v. Rivadeneyra, 2017 ONSC 7457

COURT FILE NO.: FC-14-2854

DATE: 2017/12/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kimoko Uriu Applicant

– and –

Francisco Rivadeneyra Respondent

Michael Rappaport, for the Applicant

Any Mayer, for the Respondent

HEARD: Written Submissions

COSTS endorsement

L. Sheard J.

Introduction

[1] This Costs Endorsement follows my decision of August 8, 2017 following an 11-day trial. Also, following a hearing on December 6, 2017, the parties were invited to provide further cases in submissions on the issue of set-off support against the payment of costs.

[2] The central issue at trial was whether the applicant would be permitted to relocate with the parties’ five year-old son from Ottawa to Vienna, Austria. The trial decision also addressed the issue of custody and the parenting schedule for the child as well as spousal support and child support.

[3] As set out in my Reasons for Judgment, the respondent, was granted sole custody of the child, with the 50/50 parenting schedule that had been agreed to between the parties at the completion of the first week of trial. An income was imputed to the applicant, who had taken the position at trial that she was unable to find employment or earn any income. Both spousal and child support would be calculated using the income imputed to the applicant. Spousal support was based on mid-range spousal support as per the Spousal Support Advisory Guidelines. Finally, spousal support was to be terminated immediately following the spousal support payment of January, 2019.

[4] Again, as set out in my Reasons for Judgment, the respondent was successful on the application and presumptively entitled to costs. In the event they could not reach an agreement, the parties were invited to make written cost submissions. The parties could not agree. The respondent’s costs submissions were received dated September 6, 2017. The applicant’s costs submissions were received and dated September 12, 2017.

[5] The parties appeared before me on December 6, 2017. The purpose of that appearance was to settle the terms of the Final Order, which included detailed provisions on a parental schedule, absent in my trial decision. At that hearing, the respondent again asked the Court to consider setting off the costs owed to him by the applicant against child and spousal support paid by the respondent.

[6] Counsel were invited to provide cases and submissions with respect to the issue of the set-off of spousal support as against costs payable by the applicant to the respondent. The deadline for filing those submissions was Friday, December 8, 2017 at 4:30 PM. Submissions and cases were received by counsel for the respondent at 4:16 p.m. on Friday, December 8, 2017. Nothing was received from counsel for the applicant on that date. However, on Sunday, December 10, 2017 at 11:26 a.m. the applicant’s counsel sent a letter to the court to my attention. By that time, counsel for the applicant had enjoyed the benefit of seeing the submissions by counsel for the respondent and, therefore, his submissions were responding to those of Ms. Mayer.

[7] Counsel for the respondent subsequently asked the Court to disregard the applicant’s submissions on the basis that they were made beyond the deadline of December 8, 2017 at 4:30 p.m. Briefly summarized, the applicant’s submissions were that: applicant’s counsel was unable to find any case that supported the Court’s authorization to set-off a costs order against an ongoing order for spousal support or child support; the cases submitted by the respondent are distinguishable from the facts here; and, “[I]n any event, the Applicant has filed a Notice of Appeal which, pursuant to rule 63.01(1) of the Rules of Civil Procedure automatically stays in order for the payment of money with the exception of orders for the payment of child and spousal support.”

[8] There are valid and compelling reasons to support the request made by the respondent that the Court should ignore the submissions made by the applicant that were filed after the deadline. However, while I have considered them despite that they were not filed on December 8, 2017, as the applicant’s submissions offer little assistance to the Court, I conclude there is no prejudice to the respondent if they are allowed in.

Positions of the Parties

[9] The respondent seeks costs on a substantial indemnity basis in the amount of $105,677.34, inclusive of fees, disbursements, and HST. That amount includes costs to prepare for and attend at the trial but does not include fees incurred to prepare pleadings, and for attendance at one case conference and one settlement conference. It also excludes costs incurred with respect to the respondent’s application under the Hague Convention. Those costs were dealt with separately in my endorsement of March 27, 2017.

[10] In support of his claim for costs on a substantial indemnity basis, the respondent asserts that he was successful on all issues and that the applicant demonstrated bad faith and unreasonableness. Finally, the respondent asserted that he received an outcome at trial that was more favourable than set out in his various offers to settle.

[11] The applicant begins her submissions by stating that she has spent $178,193.00 in legal fees between the six lawyers who represented her at various times in the litigation. She submits that she paid for those fees by borrowing $140,000.00 from her father, raised approximately $19,000.00 from a FaceBook Friends and GoFundMe Campaign and the remainder using her credit card and support money.

[12] The applicant does not agree that the respondent was entirely successful at trial and notes that her claims for retroactive support and contribution to section 7 expenses were not addressed. The applicant also submits that the parties had agreed to an equal shared parenting arrangement prior to trial, which would have changed only if the applicant had been permitted to relocate to Vienna with the parties’ child.

[13] While it is true that the parenting arrangements had been embodied in a court order made prior to the conclusion of trial, the trial judgment addressed the parties wish to travel with their young son to their various home countries. On that issue, the applicant was adamant that the respondent not be permitted to take their son to Mexico unless the applicant was permitted to accompany their son on the trip. By contrast, the applicant did and sought to continue to travel to Europe with the parties’ son, unaccompanied by the respondent. As set out in the Reasons for Judgment, both parties were authorized to travel alone with their child to Austria and Mexico, as a case might be.

[14] The applicant submits that each party should bear their own costs.

The Law

[15] The law concerning costs in family law proceedings can be found in Serra v. Serra, 2009 ONCA 395 in which the Court of Appeal confirmed that costs are designed to foster three important principles:

i) to partially indemnify successful litigants for the cost of litigation;

ii) to encourage settlement; and

iii) to discourage and sanction inappropriate behaviour by litigants.

[16] The overall objective of the Court is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the proceeding. (Boucher v. Public Accountants Council (Ontario), (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)).

[17] Costs are to be determined in accordance with Rules 18 and 24 of the Family Law Rules, O. Reg. 114/99 (“FLR”). The factors set out under Rule 24 include that the successful party is presumed to be entitled to costs and require the court to consider, the reasonableness of the behaviour of each party and any offer to settle, any acts of bad faith by any party, the importance, complexity, or difficulty of the matter, the scale of costs, hourly rates, and time spent, and the reasonable expectations of the losing party.

[18] The Court must also consider the impact of any offers to settle. Rule 18(14) of the FLR directs that, unless the court orders otherwise, a party who makes an offer is entitled to costs to the date the offer was served and full recovery of costs from that date if the offer relates to a trial and is made at least seven days before the trial or hearing date; the offer does not expire and is not withdrawn before the hearing starts; the offer is not accepted; and the party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[19] Rule 18 (16) states that when the court is exercising its discretion over costs, it may take into account any written offer to settle, the date it was made, and its terms, even if Rule 18 (14) does not apply.

Rule 24 Factors

Success

[20] Rule 24 (1) provides that a successful party is presumptively entitled to the costs of a case. However, a successful party may be deprived of costs or ordered to pay some or all of the unsuccessful party’s costs if the successful party has behaved unreasonably during a case. Rule 24 (5) states that, when deciding whether a party has behaved reasonably, the court shall examine the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; the reasonableness of any offer the party made; and any offer the party withdrew or failed to accept.

Offers to Settle

[21] The respondent provided copies of offers to settle exchanged between the parties. The dates and central terms of the offers are set out below:

a. April 21, 2016, respondent offer to settle: the applicant’s request to relocate to Vienna to be dismissed; joint custody, with primary residence of the child to be with the applicant with increasing overnight access to the respondent; six weeks of summer vacation with the child to the applicant, including travel to Austria; two weeks of summer vacation with the child to the respondent, including travel to Mexico; income imputed to the mother of between $40,000 and $70,000; termination of spousal support on April 30, 2018; parties to bear their own costs;

b. September 23, 2016, respondent offer to settle: father to have sole custody; applicant’s request to relocate to Vienna will be dismissed; child’s primary residence will be shared equally on a 2/2/3 schedule; all holidays to be shared; travel to Vienna with child and the mother to be revisited when the child turns six; parties to mediate travel issues, if no agreement is reached; income imputed to mother for the purposes of child support and section 7 expenses, effective October 1, 2016; spousal support to terminate on September 30, 2020; parties to bear their own costs;

c. January 16, 2017, respondent offer to settle: applicant may relocate with child to Austria on or after August 10, 2017; parties to have joint custody, child to have his primary residence with the applicant after August 10, 2017; pending relocation, child’s residence will be shared equally with the parties on a 2/2/3 parenting schedule; respondent shall be permitted to travel with child to Mexico. The offer included detailed provisions regarding holiday and summer access to the respondent as well as ongoing disclosure by the applicant of information regarding the child; access via telephone/Skype access; after the applicant and child had relocated to Austria, child and spousal support would end but the respondent would be responsible for all costs associated with his exercise of access to the child, including the cost of the child’s travel; if the offer was accepted by noon on January 18, 2017, the parties to bear their own costs, if accepted after that date, the applicant to pay costs to the respondent of $20,000;

d. January 19, 2017, respondent offer to settle: applicant permitted to permanently relocate with the child to Vienna Austria after the last day of school on July 3, 2017; joint custody, with primary residence to the applicant; the respondent to be entitled to travel with the child anywhere, including Mexico, for two weeks. The offer contained a detailed breakdown of access during school breaks, holidays and summer holidays as well as access to the child in Vienna; access to information regarding the child; and telephone/Skype access. After relocation, spousal support to be paid for two months and then terminated; child support to be paid in the amount of $200 per month, to recognize that the respondent is solely responsible for all the costs incurred to exercise his access, including the child’s travel costs; if the offer was accepted by January 20, each party would bear their own costs, including the cost of the Hague convention application; if accepted after January 20, the applicant would pay costs to the respondent $20,000;

e. April 14, 2016, applicant offer to settle: applicant to be permitted to relocate with child to Austria; joint custody, with primary residence to the applicant; mid-week access and one overnight per week to respondent; one week overnight access to respondent, in Ottawa; summer access to the child to be exercised by the respondent, in Ottawa; access to the respondent in Vienna, both face-to-face and electronic; table child support to be paid by respondent but held by the applicant and used to fund the travel costs for the respondent’s access and the child’s flights; any unused monies to be applied for post-secondary education for the child; no spousal support payable; if accepted by April 20, each party bears their own costs, after that date, the respondent shall pay $25,000 toward the applicant’s costs;

f. January 16, 2017, applicant offer to settle: applicant shall have sole custody of the child and should be permitted to relocate with him to Austria; overnight access to respondent 10 consecutive overnights per year, and 6 overnight visits during March break in alternate years; three weeks’ consecutive access to respondent in the summer in Canada or Europe until child is nine, at which time, respondent may take child to Mexico provided the child has a 30 minute daily Face Time/Skype call to the applicant; when child is 13, respondent shall have the child for six consecutive summer weeks, contingent on daily Skype/FaceTime access to mother; respondent to pay child support until 2022, no section 7 expenses; parties to bear their own costs. (*This offer appears to be silent on the issue of spousal support).

[22] There is no doubt that the results achieved at trial by the respondent was more favourable to him than any of the offers he made or that were made by the applicant. When compared to the trial outcome, the respondent achieved a better outcome on the issues of custody, access, parenting schedule and travel, than he had been willing to accept in his offers to settle. On the issue of child and spousal support, the respondent achieved a better result at trial than he had been willing to accept in his offer of September 23, 2016.

[23] The respondent’s settlement offers in 2017, in which he terminated child and spousal support should be viewed in context. First, the evidence of the applicant at trial was that, if she were permitted to relocate to Vienna, she would be able to live rent-free in a home owned by her father. Her father gave evidence at trial and confirmed this. Also, the applicant stated that, in Vienna, she would be able to earn a good living and would not need spousal support. By contrast, for the respondent to exercise access, he would be required to travel to Vienna or to arrange for the child to fly from Austria to Canada. Therefore, in assessing the relative success of the respondent at trial compared to his offer to settle, the Court must consider that the 2017 offers contemplated that the respondent would pay a significant amount in international travel costs.

[24] The applicant submits that the Court ought not to take any of the respondent’s offers into account because they expired before the commencement of trial or, in the case of the offer of September 23, 2017, they were served closer than seven days before the trial. The trial commenced on September 23, 2017.

[25] In her costs submissions, the applicant also urges the Court to conclude that the “Respondent was attempting to exert undue pressure on the Applicant by only giving her two days to accept” his offer of January 16, 2017. In fact, the offers made by the respondent on January 16 and 17, 2017 remained open for acceptance until the commencement of trial. Each provided only that if the offer was not accepted until after January 18 or January 20, as the case may be, the applicant would have to pay costs to the respondent of $20,000.00

[26] I conclude that the cost consequences set out in Rule 18 (14) do not apply here because the offers were either not made at least seven days before the trial or they expired or were withdrawn before the hearing started. However, Rule 18 (16) does allow the Court to take these offers into account, which I do, when exercising its discretion over costs.

Complexity and Importance

[27] There is little doubt that the issue of whether the parties’ child would relocate to Europe with the applicant was of utmost importance to the parties. As set out in the Reasons for Judgment, had the applicant been permitted to relocate with the child to Vienna, Austria, it would most certainly have undermined the respondent’s relationship with his son to the point at which the respondent would have become “some guy that sees Luca once in a while.”

[28] The reasons put forth by the mother for her wish to relocate, namely, that she could not find employment in Ottawa or in Canada but did have employment lined up in Austria, lengthened the trial and necessitated evidence, including expert evidence called by the respondent, on the issue of the applicant’s employability in Canada and in Austria. As set out in the Reasons for Judgment, I concluded that the applicant was employable in Canada but had failed to make reasonable efforts to find employment.

Unreasonable Behaviour or Bad Faith

[29] In her submissions, the applicant sets out an extensive list of what she identifies as “outrageous allegations” made by the respondent in his amended Answer and in his Application. As the costs associated with the Hague Application have already been dealt with, the applicant’s submissions with respect to allegations set out in the respondent’s Hague Application have no application here. The applicant also listed which she identified as “egregious examples of bad faith conduct before and during the proceedings”. Some of the applicant’s examples were satisfactorily addressed by the respondent at trial. Some related to the Hague Application. The rest of the applicant’s examples were not supported by the trial findings. In the end, I give no weight to those allegations.

[30] By contrast, as set out in the Reasons for Judgment, there were numerous examples of the applicant acting in bad faith. Some of those are listed in paragraph 11 of the respondent’s costs submissions. Similarly, the respondent identifies unreasonable behaviour in paragraph 12 of his cost submissions. The respondent, too, refers to facts that relate to the Hague Application. For the reasons set out above I give no weight here to allegations made by the respondent that relate to the Hague Application.

[31] However, and as set out in the Reasons for Judgment, some of the examples listed by the respondent are consistent with trial findings. In particular, the applicant falsely accused of the respondent of child and spousal abuse. Those allegations led to unnecessary intervention by the police, the Children’s Aid Society, and medical professionals, all of which potentially harmed the child and unquestionably had a harmful impact upon the respondent personally and upon his professional reputation.

[32] In the respondent’s costs submissions, he makes reference to the post-trial communications by the applicant’s counsel to the Court. In a letter to the Court, received prior to the release of my Reasons for Judgment, counsel for the applicant provided the Court with information that she sought to be considered by the Court in its trial decision. The correspondence was not evidence nor did the applicant ask the Court to re-open the trial to allow additional evidence. The letter was written without the prior knowledge or consent of the respondent. It was entirely inappropriate and was not considered by me when I made my trial decision.

[33] In the applicant’s cost submissions, she again asks the Court to consider post-trial conduct of the respondent. As stated above, submissions are not evidence and cannot be cannot properly considered as such by the Court. For example, on the first page of the applicant’s costs submissions, the applicant states that:

A reasonable person reading paragraph 6 of the [respondent’s] Offer to Settle [dated January 16, 2017] might be given to speculate that the Respondent included a relocation date after August 10, 2017, because he had either already applied for or conditionally accepted the three year secondment in Basel, Switzerland. (The Respondent spent three weeks following the release of the Trial Decision on August 8^th trying to pressure the Applicant into relocating to Switzerland.)

[34] Similar comments are found throughout the applicant’s costs submissions. Those submissions are inappropriate and ought not to have been made. Firstly, they invite the Court to speculate on a possible reason for a settlement position taken by the respondent. More importantly, they purport to improperly communicate to the Court alleged post-trial conduct of the respondent, which was not in evidence, and disputed by the respondent. Thirdly, the correspondence attempted to provide the Court with the substance of settlement negotiations between the parties that post-date the release of a decision. Those settlement discussions are not properly before the Court on the issue of trial costs. The applicant’s allegations are inflammatory and entirely improper. The Court does not and cannot give any weight to any alleged events that occurred post-trial or following the release of the trial judgment, which are not otherwise admitted or properly in evidence. Despite that the applicant’s will conduct merits sanction, it is not taken into account for the purposes of this costs decision.

Scale of Costs, Hourly Rates, and Proportionality

[35] In her submissions, the applicant is not taking issue with the hourly rates or the proportionality of the costs sought. Moreover, her submissions begin with her statement that she had incurred costs of $178,000.00 That amount is almost double the amount being sought by the respondent, who seeks $95,109.61 representing 90% of his total costs of $105,677.34. Given that the applicant incurred costs of approximately $75,000.00 more than did the respondent and in the absence of any submissions from the applicant on that point, it is reasonable to conclude, which I do, that the hourly rates and time spent by counsel for the respondent are reasonable and proportionate.

[36] Both parties were required to turn to the family for financial assistance to fund this litigation. While the respondent has had a good income throughout, his income went, in part, to support the applicant and their child, as well as to fund the litigation. While the applicant asserted that she was unable to find employment, and, therefore, had no income on and after separation, she did not take reasonable efforts to find employment. Further, the applicant chose to make numerous trips to Vienna, Austria where she enjoyed her summers with her family. For that reason, while the Court accepts that the applicant had to borrow for the litigation, her lack of income was of her own doing.

Amount the Unsuccessful Party Would Expect to Pay

[37] Except for a relatively brief period of time, the applicant has been represented by counsel throughout this litigation. It is reasonable to conclude, which I do, that the applicant understood that she would be liable for legal fees in the event she was unsuccessful. In her cost submissions, the applicant acknowledges that she has incurred legal fees of over $178,000.00. Therefore it is reasonable to conclude, which I do, that the applicant understood that the respondent was also incurring significant legal fees, and, that if he were successful, he would expect to be awarded a portion of those fees.

Disposition: Amount of Costs

[38] After considering the relevant factors, including that the respondent achieved an outcome far more favoured than any of his offers to settle and the submissions of the parties and in exercise of the discretion afforded to the Court under the FLR, I fix the respondent’s costs at $75,000.00 inclusive of taxes and disbursements, which costs are payable by the applicant.

Should the respondent be entitled to set-off of spousal support against the costs payable to him?

Positions of the Parties

[39] The respondent asked to set-off spousal and child support against the costs awarded to him. The basis of this request is that, unless there is set off, it is unlikely that the respondent will recover the costs awarded to him. In his costs submissions, the respondent asserts that the applicant has told him that she will declare bankruptcy to avoid paying costs and that she is appealing the trial decision, which will again require the respondent to incur costs. I have no evidence of discussions or threats made by the applicant that she is going to declare bankruptcy. However in her submissions, the applicant states that she has appealed the trial decision and, as a result, the payment of costs is stayed.

[40] The respondent asserts, without dispute or response from the applicant, that the applicant has paid him nothing toward the costs she was ordered to pay in respect of the Hague Application. The applicant’s evidence at trial makes it clear that she has not been working and funded her litigation, in part, with the assistance of her father, who, while retired, did have the wherewithal to provide the applicant with significant financial assistance. Further, at trial, the applicant’s father stated that he owned home in Vienna which has remained unoccupied and available for the applicant to live in, rent-free.

[41] As stated at the outset of these reasons, the applicant asserted that he could find no case in support of the proposition that the court has authority to set off an order for costs as against an order for ongoing spousal support or child support. However, no submissions were provided on the issue of why a retroactive variation in spousal and child support should be treated differently from an ongoing award of spousal or child support.

[42] The respondent referred to the following cases:

i) Gauthier v. Mallon[^1] in which the court awarded a retroactive variation in child and spousal support. In calculating the amount, the court deducted earlier costs decisions. Further, the court allowed the pay or spouse to set off the costs of the application itself from the amount awarded in retroactive child and spousal support. In that case, the retroactive spousal and child support was set at $71,774.37 (net of earlier costs decisions) and costs of the application were awarded to the pay spouse in the amount of $54,471.00. The full amount of that costs award were set off against the amount awarded in retroactive spousal and child support: $71,774.37;

ii) Filion v. Ives[^2], a decision concerning costs, and, in particular, what portion of the costs awarded related to support issues. The court had been provided with an affidavit from the applicant/payor or spouse that stated that the costs award had not been paid; the recipient spouse had made a consumer proposal in which she listed costs as an unsecured debt; the entire costs award was subject to being extinguished under the consumer proposal; a portion of the costs award would survive if it was attributable to support issues; and most of the costs should be deemed to relate to time spent with support because most of the evidence at trial related to support. The court determined that 90% of the costs incurred, related to support issues. As requested by the payor spouse, the court ordered a set-off of spousal support of $400.00 per month against the costs awarded to the payor spouse.

[43] Here, the Court has not been asked to determine what portion of the costs awarded relate to support issues. While the core issue at trial was whether or not to allow the applicant to relocate with Luca to Vienna, inherent in deciding that issue was the applicant’s ability to support herself in Canada. As mentioned above, the respondent called an expert witness on that very issue.

[44] In the trial decision, the applicant’s spousal support is terminated after the last payment made in January 2019. Therefore, if spousal support were set off against the costs awarded, and assuming spousal monthly spousal support of $3,089.00, the amount payable in spousal support from January, 2018 to January 2019 would total something less than one-half the costs payable by the applicant, (13 x $3,089.00 = $40,157.00), assuming set-off of the full amount of spousal support payable.

[45] The respondent also referred the Court to Walsh v. Walsh[^3] in which the pay or spouse asked for a set off of costs awards in his favour against his current support obligations. The court declined to order set off of child support as against unpaid costs awards. In declining to make that order, the court noted that it was not a case where applying a set-off would “take bread out of the mouths of the children” and noted that it was unable to find a case that allowed for set off of costs against child support obligations. However, the court noted that in the 2006 Ontario Court of Appeal decision in Dickie v. Dickie[^4] the court did order set off against outstanding support. And stated:

Spousal support is an obligation between spouses, so there is no reason in principle not to set-off costs against such an obligation. In my view, it is desirable to maintain a “bright white line” around child support obligations: they should be paid annually, based on actual or imputed income, and it should only be truly exceptional circumstances that would lead the court to depart from this approach.[^5]

[46] When they were before me on December 6, 2017 I indicated to counsel that I was not inclined to order a set-off of the costs awards against the child support payable by the respondent. I share the views expressed by other courts that it is desirable to maintain a “bright white line” around child support obligations.

[47] However, I am persuaded by other jurisprudence that the Court has discretion to order that costs be set off as against spousal support. The court did just that in the decision of Church v. Church[^6] in which the costs payable by the recipient spouse were set off as against the costs awarded in favour of the pay or spouse. In that case, the recipient spouse was receiving time-limited support of approximately $2000.00 per month and the court ordered that $300.00 of the monthly spousal support payment be set off against the $10,000.00 in costs awarded in favour of the pay or space. The court determined that, at that rate, the cost would be paid in less than three years.

[48] Church, and, in particular, paragraph 18 of that decision, was also cited, with approval, in the later decision of Snih v. Snih[^7]. In Snih the court considered the impact upon the recipient spouse of a costs order against her. Although the court adjusted the amount of costs to be paid by the recipient spouse, it noted that she “must recognize that she did stubbornly adhere to her inflexible position that she should be granted custody and (as Appeals Justice Rosenberg in MacDonald v. Magel observed) ‘put the father through and 9 ½ day trial and was completely unsuccessful.’ In this case, it was only five days of trial, and she was also completely unsuccessful.”

[49] In this case, the applicant put the respondent through an 11-day trial and was completely unsuccessful.

[50] In Bemrose v. Fetter, the Ontario Court of Appeal also permitted set-off of the costs of the appeal as against the appellant’s “spousal support obligations” but left it to the parties to negotiate a reasonable method for set-off.[^8]

Disposition of Request for Set-Off

[51] Having considered the applicable jurisprudence, I conclude that I do have jurisdiction to order a set-off of the costs awarded to the respondent and payable by the applicant as against his spousal support obligations to the applicant. However, having determined that the applicant is entitled to spousal support, I cannot conclude that it would be appropriate or fair to allow a set-off of the full amount payable in spousal support.

[52] In his submissions, counsel for the applicant stated that the respondent owes the applicant retroactive child support in the amount of $5,460.00 and retroactive spousal support of $4,729.00 from August and September 2016 for total arrears of $10,189 as of December 8, 2017.

[53] I order that the costs payable by the applicant to the respondent be set-off as against any outstanding spousal support arrears. I further order that, commencing January 1, 2018, the respondent may apply and set-off the monthly amount of $1500.00 from his ongoing spousal support obligations against the balance of the costs awarded against the applicant. For clarity, the set-off shall apply to satisfy payment of the trial costs awarded and the costs awarded in the Hague Application.

L. Sheard J.

Released: December 13, 2017

CITATION: Uriu V. Rivadeneyra, 2017 ONSC 7457

COURT FILE NO.: FC-14-2854-1

DATE: 2017/12/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kimoko Uriu Applicant

– and –

Francisco Rivadeneyra Respondent

costs endorsement

Sheard J.

Released: December 13, 2017

[^1]: 2017 ONSC 5231 [^2]: 2015 ONSC 270 [^3]: 2008 586 (ON SC) [^4]: 2006 576 [^5]: Walsh, supra, at paragraph 32 [^6]: 2003 2084 (ON SC) at para 18 [^7]: 2007 20774 (ON SC) [^8]: 2007 ONCA 637 at para114