Court File and Parties

CITATION: Kim v. Kim, 2020 ONSC 940 COURT FILE NO.: FS-06-0058306-00 DATE: 2020 02 11 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HANG SOON KIM v. DU-WON KIM and NEW SEOUL INSURANCE CORPORATION

BEFORE: Kumaranayake J.

COUNSEL: Tara Kim as agent for Applicant Respondent, Self-represented Deann Nixon, Counsel for the Director of Family Responsibility (party to the motion only)

HEARD: September 27, 2019

ENDORSEMENT

OVERVIEW

[1] Following a family trial in 2010 that lasted 25 days, the trial judge, Snowie J., made several orders with respect to ongoing child support, arrears of child support, arrears of spousal support, section 7 expenses, equalization, future spousal support and contempt by the Respondent. (See Kim v. Kim, 2010 ONSC 4197, for the trial decision).

[2] Snowie J. ordered that five notices of garnishment be issued and that the Clerk of the Superior Court of Justice in Brampton collect the sum of $791,495.00. Of that amount, $480,000.00 was for a lump sum for future spousal support for the Applicant.

[3] On May 22, 2019, I heard the Applicant’s motion by which she requested the following:

a) an order that the Respondent be required to pay all outstanding costs Orders prior to proceeding with any further motions or proceedings with respect to this matter;

b) an order that the collection and enforcement of the outstanding spousal support portion of the lump sum be transferred from the Clerk of the Superior Court of Justice to the Director of the Family Responsibility Office;

c) an order that ownership of New Seoul Insurance Corporation (NSIC) be transferred from the Respondent to the Applicant in satisfaction of the outstanding equalization payment. In the alternative, the Applicant requests that NSIC be sold and that the proceeds be applied to the outstanding equalization payment;

d) a determination of post-judgment interest on the uncollected lump sum spousal support and equalization payment; and

e) costs.

[4] By my endorsement, dated August 26, 2019, I determined the issues of the quantum of outstanding costs and the transfer or sale of NSIC and made the following Order:

a) The outstanding costs owed by the Respondent to the Applicant are $2,250.

b) The Respondent may not bring any motions for leave to bring further motions unless he files proof that he has paid costs as ordered by Lang J.A. on August 1, 2012 ($750) and Tzimas J. on April 2, 2013 ($1,500).

c) The Applicant’s request to transfer NSIC to her is dismissed.

d) The Applicant’s alternative request for the sale of NSIC is dismissed.

[5] As the Applicant had not served FRO with her motion, I could not determine the Applicant’s request that the collection and enforcement of the outstanding spousal support portion of the lump sum be transferred from the Clerk of the Superior Court of Justice in Brampton (Clerk) to the Director of the Family Responsibility Office (FRO). Further, I deferred the determination of the pre-judgment interest as requested by the Applicant. I ordered a timeline that addressed service of the motion materials on FRO by the Applicant and the issue of when the parties and counsel for FRO were to appear before me. I also ordered that costs of the motion be addressed on the return date, that any party seeking costs serve a Bill of Costs and that the Bill of Costs could be filed on the return date.

[6] Kim v. Kim, 2019 ONSC 5018, contains a detailed outline of the background of this proceeding as well as my reasons for dismissing part of the Applicant’s motion and finding that the amount of outstanding costs payable by the Respondent is $2,250. Therefore, I will not repeat the background and those reasons here.

Preliminary Issues

[7] The parties and counsel for FRO appeared before me on September 27, 2019. At that time, the Respondent raised two preliminary issues. The first was with respect to Tara Kim representing the Applicant. The Respondent submitted that Tara Kim was no longer permitted to appear on behalf of the Applicant. In support of this submission, he relied on the Order of Peterson J., dated June 3, 2019, by which Tara Kim was not permitted to appear as agent for the Applicant in connection with a different motion which had been brought by the Respondent for an Order to terminate child support. The motion to terminate child support was heard by Fowler Byrne J. on June 25, 2019 and both parties were represented by counsel for that motion. Her decision was released on August 7, 2019.

[8] On the first preliminary issue, I ruled that the appearance before me was a continuation of the motion heard on May 22, 2019 and for which Tara Kim had been given permission to appear as interpreter and agent for the Applicant pursuant to the Orders of Van Melle J., dated August 27, 2018, and Bielby J., dated September 20, 2018. Peterson J.’s Order of June 3, 2019 did not vary either of these Orders. Therefore, Tara Kim was permitted to continue to appear as agent and interpreter for the Applicant in the motion before me.

[9] The second preliminary issue raised by the Respondent was that he stated that he had brought proof that he had previously paid the amount of costs that I had determined was outstanding. I explained to him that I had determined the issue based on the evidentiary record that was before me on May 22, 2019 and what he referred to was not part of that evidentiary record. The Respondent was not permitted to file any further material as I had already determined that issue.

[10] For the September 27, 2019 appearance, the Respondent had served and filed a Bill of Costs pursuant to my Order of August 26, 2019. The Applicant, however, had not served a Bill of Costs.

[11] For the reasons outlined below, I dismiss the balance of the Applicant’s motion and award costs to the Respondent in the amount of $2,000, payable within 30 days.

ISSUES

[12] The remaining issues to be determined are:

a) Should the Applicant’s request to transfer collection of the lump sum for future spousal support as ordered by Snowie J. on September 3, 2010 be transferred from the Clerk to FRO?

b) Should the Applicant’s request to determine the post-judgment interest be granted?

c) Who, if anyone, should be awarded costs for this motion?

TRANSFER OF COLLECTION AND ENFORCEMENT TO FRO

Position of Applicant and Respondent on May 22, 2019

[13] On May 22, 2019, I heard submissions on behalf of the Applicant and the Respondent on the issue of the Applicant’s request to transfer collection and enforcement of the lump sum spousal support. The Applicant submitted that:

a) A transfer is permitted by virtue of Rule 26(12) of the Family Law Rules;

b) Every support order made by an Ontario Court can be enforced by FRO and she relied on subsection 9(1) of the Family Responsibility & Support Arrears Enforcement Act;

c) FRO can collect and enforce;

d) The Clerk cannot enforce, but only collect monies through garnishment;

e) The Applicant has received “very little funds.” According to her calculations in her affidavit of July 12, 2018, $191,562.43 has been paid to the Applicant as a result of the garnishment ordered by Snowie J.;

f) She is seeking stronger enforcement to send a message that noncompliance is not acceptable

[14] In opposing the Applicant’s request to transfer, the Respondent submitted:

a) The figures used by the Applicant were incorrect. The Respondent attempted to refer to statements from Manulife which were not part of the evidentiary record for this motion. As these statements were not properly before the Court, the Respondent was not permitted to refer to them.

b) At that time, 50% of his pension was being garnished for child support.

Position of FRO, the Applicant and the Respondent on September 27, 2019

[15] On September 27, 2019, I received submissions on behalf of FRO with respect to the Applicant’s request. Counsel for FRO advised that FRO was not taking a position with respect to the Applicant’s request. Counsel for FRO had brought with her a copy of the Director’s Statement. Unfortunately, it had not been previously served on the parties and the Respondent objected to it being filed at that appearance. On September 27, 2019, the Applicant and the Respondent each responded to FRO’s submissions.

[16] Essentially, there was no change in either of their positions that they had outlined on May 22, 2019. The Applicant submitted that should her request to transfer be granted, then she also requested that FRO expedite collection and enforcement. The Respondent still opposed the request to transfer.

[17] At the conclusion of the appearance on September 27, 2019, I made the following Order with the consent of the parties and counsel for FRO:

a) On or before October 11, 2019, FRO shall serve the parties with its affidavit and the Director’s Statement. The affidavit shall include an explanation of which payments were received from Manulife and an explanation of any annotations/codes used in the Director’s Statement. It shall also provide an explanation of how any money received from Manulife would be treated in the event that I ordered the transfer enforcement to FRO.

b) If the Applicant or the Respondent wish to file a response to the material served by the Director, then she/he shall serve each other and the Director of FRO and file their response, on or before October 18, 2019.

c) On or before October 18, 2019, the Applicant shall serve and file an updated statement from the Clerk of the Superior Court which indicates: a) how much has been collected to date pursuant to the Order of Snowie J., dated September 3, 2010; b) when the payments have been collected; and c) from whom the payments were received.

d) With respect to costs, the Applicant and the Respondent shall exchange written costs submissions and file same on or before October 18, 2019. The costs submissions are restricted to a maximum of two pages, double spaced, and in 12-point font.

e) There shall be no reply submissions without leave of the court.

Information filed by FRO

[18] FRO filed an affidavit in compliance with my Order of September 27, 2019. It included a Director’s Statement of Arrears as of October 7, 2019.

Response of Applicant and Respondent to information filed by FRO

[19] On October 21, 2019, the Applicant filed an affidavit, sworn on October 17, 2019, with the updated statements from the Clerk and her response to the information filed by FRO. There was no explanation provided as to why the Applicant did not file this material by October 18, 2019 as required by my Order, dated September 27, 2019. I exercised my discretion and accepted the Applicant’s materials as this litigation already has a protracted history.

[20] The updated statements show that, as of October 7, 2019, the Clerk has collected $220,180.56. The Applicant points out that the source of the payments received by the Clerk was Manulife (Financial) and not the Respondent or New Seoul Insurance Company. The Applicant emphasizes at para. 6 of her affidavit that the Respondent “never made a single voluntary payment towards his arrears” (emphasis in the original).

[21] With respect to the information filed by FRO, the Applicant asserts at para. 7 of her affidavit that there are “alarming omissions” in FRO’s Statement of Arrears and alleges that FRO has not complied with s. 56(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31. The Applicant alleges that FRO collected money and did not make payment to the Applicant.

[22] The Applicant asserts at para. 8 of her affidavit that FRO’s statement is “dubious” as payments collected between July 16, 2019 and September 29, 2019 have been omitted. The Applicant further asserts that the payments collected between July 16, 2019 and September 29, 2019 were not paid out to the Applicant as a hold was put on the file on July 15, 2019. The Applicant asserts at para. 12 of her affidavit:

The Applicant is concerned that FRO submitted a misleading document that fails to account for all amounts collected between July 15 and September 29, 2019. These amounts were held by FRO for months, but there is no record of their existence on FRO’s Statement of Arrears. What happened to these payments and what was the total amount?

[23] Further, the Applicant asserts that FRO’s adjustment for the Respondent’s overpayment of child support does not comply with para. 44(b) of the endorsement of Fowler Byrne J., dated August 7, 2019, or para. 16 of the Order of Snowie J., dated September 3, 2010.

[24] As stated above, Fowler Byrne J. heard the Respondent’s request for an order terminating child support. His request was granted and at para. 44(b) of her endorsement, Fowler Byrne J. ordered that:

Any overpayment of child support made by the Respondent Du Won Kim to the Applicant Hang Soon Kim for the support of Tara Kim, born March 6, 1990, shall be credited towards any other outstanding debt owed by the Respondent Du Won Kim to the Applicant Hang Soon Kim;

[25] Para. 16 of Snowie J.’s order states that:

This quantum of $791,495.00 or the remaining balance outstanding shall be first charge against the estate of the Respondent, and the Applicant shall have to account for all proceeds already paid to her and the balance still owed to her shall be first charge upon the Respondent’s Estate.

[26] The Applicant asserts that FRO incorrectly calculated the overpayment made by the Respondent and did not comply with the orders of Fowler Byrne J. and Snowie J.

[27] With respect to Fowler Byrne J.’s order, the Applicant asserts at para. 22 of her affidavit that:

The Applicant believes FRO’s arbitrary interpretation and adjustment of the overpayment does not comply with the Endorsement of Justice Fowler Byrne. She is worried that FRO will make the same problematic calculations and apply other collected amounts to offset the overpayment, should this issue remain unresolved.

[28] With respect to the Order of Snowie J., the Applicant asserts at para. 24 of her affidavit:

The Final Order, in collaboration with Paragraph 44(b) of Justice Fowler Byrne’s Order, reinforces our position that FRO wrongly adjusted the overpayment; the Applicant has priority in collecting the debt owed to her. The Applicant submits that both Orders ought to be reviewed by FRO, which will help resolve the issue of the omitted payments and the problematic adjustments.

[29] The Respondent did not file a response to the information from FRO.

Analysis

[30] As it is her request, the onus is on the Applicant to demonstrate on a balance of probabilities that the collection of the lump sum for future spousal support should be transferred from the Clerk to FRO. After carefully considering the evidence and submissions of the Applicant, Respondent and FRO, I am not satisfied that the Applicant has met her onus.

[31] As outlined above, in her affidavit, dated October 17, 2019, the Applicant is critical of FRO’s record keeping in relation to the collection of child support.

[32] In her affidavit, dated July 12, 2018, filed in support of this motion, the Applicant asserted that $191,562.43 had been collected by the Clerk. However, it is clear from the updated statements from the Clerk that $220,180.56 has been collected.

[33] The Applicant relies on r. 26(12) of the Family Law Rules, O. Reg. 114/99, which states that:

A recipient who files a support order in the Director’s office shall, on the Director’s request, assign to the Director any enforcement that the recipient has started, and then the Director may continue with the enforcement as if the Director had started it.

[34] The Applicant also relies on s. 9(1) of the Family Responsibility & Support Arrears Enforcement Act:

Every support order made by an Ontario court, other than a provisional order, shall state in its operative part that unless the order is withdrawn from the Director’s office, it shall be enforced by the Director and that the amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

[35] In the case before me, there is no evidence that the Director has requested assignment of any enforcement that the recipient has started. Snowie J. determined and ordered that child support, arrears of child support, arrears of spousal support, and arrears of section 7 expenses be enforced by FRO as set out in paras. 1 to 5 of her Order. However, she determined that the method of collection and enforcement of the lump sum for future spousal support (and equalization) was garnishment. From the record before me, it appears that there was no appeal taken from Snowie J.’s Order, which was made in 2010.

[36] Counsel for FRO submitted that had Snowie J.’s order of September 3, 2010 not contained an alternative enforcement, FRO would have been mandated to enforce the future lump sum spousal support. I agree with this statement.

[37] It was open to Snowie J. to order that the lump sum for future spousal support be collected by FRO. However, she ordered that five notices of garnishment be issued and thereby ordered alternative enforcement.

[38] The evidence before me shows that the Clerk has been collecting funds through the garnishment as ordered. The Clerk has collected $220,180.56 as of October 7, 2019. The Applicant has not raised any concerns with the records kept by the Clerk which show when the amounts were collected, the amount collected and from which source they were collected. Her only criticism is that the Respondent has not personally made any payments towards the outstanding lump sum. The Clerk cannot be criticized for this.

[39] Conversely, the Applicant has asserted that there are problems with how FRO has collected and distributed money it collected for child support. In outlining her position, the Applicant has used some strong language with respect to the information provided by FRO: alarming omission, dubious, and misleading.

[40] The Applicant has expressed her concerns with FRO and its calculation of an overpayment by the Respondent. She has also alleged that FRO collected monies for child support and failed to provide them to the Applicant. However, the Applicant has not provided any evidence as to why, considering her serious concerns with FRO, she still seeks a transfer from the Clerk to FRO.

[41] Simply put, it makes little sense to me to change the mechanism ordered by Snowie J. when there is no evidence that the mechanism is not working. The Clerk is collecting funds through the notices of garnishment which were ordered to be issued and the Applicant is receiving the money collected. There are no issues raised by the Applicant with the Clerk’s record keeping. Further, the notices of garnishment issued by the Clerk pursuant to Snowie J.’s Order are governed by r. 29 of the Family Law Rules. Unlike notices of garnishment issued under the Rules of Civil Procedure, notices of garnishment issued pursuant to r. 29 of the Family Law Rules do not expire (see r. 29(5)). This protects the Applicant.

[42] Para. 16 of Snowie J.’s Order also provides protection and certainty for the Applicant:

This quantum of $791,495.00 or the remaining balance outstanding shall be first charge against the estate of the Respondent, and the Applicant shall have to account for all proceeds already paid to her and the balance still owed to her shall be first charge upon the Respondent’s Estate.

[43] With respect to her submission that FRO should review the orders of Fowler Byrne J. and Snowie J., the Applicant has not provided any evidence that FRO has been served with a copy of the issued Order of Fowler Byrne J. or that para. 16 of Snowie J.’s order has been brought to FRO’s attention. (At the September 27, 2019 appearance before me, it was apparent that the Order of Fowler Byrne J., dated August 7, 2019, had not been issued.)

[44] I wish to be clear that I make no determination about the merits of the Appellant’s assertion that FRO has not maintained its records accurately or her assertion that FRO has withheld from the Applicant monies it collected from the Respondent. That is not an issue that was pleaded in the Applicant’s notice of motion, dated July 12, 2018, or her amended notice of motion, dated August 20, 2018.

[45] I am not satisfied that the Applicant has met her onus. Therefore, I dismiss her request to transfer the collection of outstanding amounts for the lump sum for future spousal support from the Clerk to FRO.

POST-JUDGMENT INTEREST

[46] On May 22, 2019, the Applicant’s position was that the post-judgment interest on the outstanding lump sum for future spousal support must be determined if her request to transfer from the Clerk to FRO was granted.

[47] As her request to transfer has not been granted, it is not necessary for me to make this determination.

COSTS

[48] Both the Applicant and the Respondent seeks costs for this motion. As noted in Kim v. Kim, 2019 ONSC 5018, the costs of three earlier appearances related to this motion were reserved to the judge hearing the Applicant’s motion. Those prior appearances are August 10, 2018 before Peterson J.; August 31, 2018 before Lemon J.; and September 20, 2018 before Bielby J. In addition to those three appearances, the parties seek costs for appearances before me on May 22, 2019 and September 27, 2019.

[49] On September 27, 2019, both parties confirmed that neither is seeking costs against the Director of FRO and FRO is not seeking costs against either party. After hearing the parties’ and FRO’s submissions regarding the Applicant’s request to transfer from the Clerk to FRO, there was not enough time on September 27, 2019 to hear argument on the issue of costs. Therefore, as set out above, the Applicant and the Respondent were directed to serve and file written submissions by October 18, 2019. The Respondent filed his written submissions on October 18, 2019. The Applicant filed her written submissions and a Bill of Costs on October 21, 2019.

[50] The Applicant seeks costs in the amount of $2,010.30. The Respondent seeks costs in the amount of $4,700.

[51] The factors to be considered in exercising my discretion with respect to costs are set out in r. 24 of the Family Law Rules. There is a presumption that the successful party is entitled to costs. Therefore, I must first decide who is the successful party. In order to do so, I shall outline the outcome of each appearance.

August 10, 2018 appearance

[52] This was the original return date for the Applicant’s motion. Some aspects of the Applicant’s motion were dealt with on consent on August 10, 2018: a non-party, John Glinka, was to be examined out of court; the motion was adjourned to August 31, 2018 with the parties giving an undertaking that argument of the motion would not exceed 55 minutes in total; any further material for the motion was to be served and filed by August 20, 2018; and the Applicant withdrew paragraphs 3, 6, and 9 of the Notice of Motion:

3. An order enforcing the outstanding costs by requiring the Respondent to provide a Financial Statement, disclosure from all of his income sources, and submitting to an examination on financial matters;

4. An order requiring Manulife to answer the Applicant’s questions regarding the garnishment history;

5. An order that all proceedings in this matter or between the parties, including any motions to change, be heard in Brampton, or alternatively, in Toronto.

[53] Paragraphs 3, 6, and 9 were withdrawn without prejudice to the Applicant being able to seek the relief set out in para. 9 in the Motion to Change (which, at that time, was before the Family Court in Hamilton) and without prejudice to the Applicant being able to renew her request for the relief set out in para. 3 and 6 in either the Hamilton Court or Brampton Court after October 1, 2018.

August 31, 2018 appearance

[54] A review of Lemon J.’s endorsement indicates that there was some uncertainty with respect to the meaning of the Order of Van Melle J. and an issue as to whether that motion was served. Lemon J. adjourned those issues to September 20, 2018 and the balance of the motion to May 22, 2019 as a long motion scheduled for three hours. Lemon J. also directed that on September 20, 2018, a timetable should be set to confirm all necessary steps so that the motion would proceed on May 22, 2019.

September 20, 2018 appearance

[55] Bielby J. made an Order that the Order of Van Melle J., dated August 27, 2018, permitted Tara Kim to appear as agent and interpreter for the Applicant. He also ordered a timeline: the Applicant to complete her filings by November 30, 2018; the Respondent to complete his filings by December 15, 2018; questioning to be completed by January 31, 2019; the motion to be completed February 15, 2019; factum, casebook, and transcripts to be served and filed by April 30, 2019; the parties were to advise by April 30, 2019 if they will have counsel for the long motion; confirmations to be exchanged by May 3, 2019; the parties could communicate by email; and costs of that day reserved to the judge hearing the long motion on May 22, 2019. He also recommended that a Case Management Judge be assigned.

[56] Although he did not order him to do so, Bielby J. also indicated that the Respondent may bring a motion for leave to set aside the Van Melle J. Order and that that motion should be brought after the change of venue motion was determined by the Hamilton Family Court. Bielby J. noted that there was an order made in the Hamilton Family Court that did not permit Tara Kim to be agent or interpreter for the Applicant in the Hamilton proceedings and that the parties were waiting for a decision from Brown J. as to whether the Respondent’s Motion to Change would be transferred from Hamilton to Brampton. If it was transferred to Brampton, there would be conflicting orders with respect to Tara Kim acting as agent and interpreter for the Applicant.

May 22, 2019 and September 27, 2019 appearances

[57] The Applicant’s motion was heard over these two days. With respect to her request for an Order finding that the Respondent owed $15,500 in outstanding costs orders, I found that the amount outstanding was $2,250. I dismissed all other relief that the Applicant requested in her motion: transfer of NSIC to the Applicant or in the alternative, sale of NSIC; transfer of the collection of the lump sum for future spousal support from the Clerk to FRO; and determination of post-judgment interest.

Entitlement

[58] The Applicant submits that she was the successful party for the August 31, 2018 and September 20, 2018 appearances. I note that she did not make any submissions as to who was the successful party for the August 10, 2018 appearance. With respect to the substantive issues before me, the Applicant submits that there was divided success between the parties as there was a determination that $2,250 in costs remained outstanding.

[59] The Respondent submits that he is the successful party on the substantive issues which I determined. He submits that costs for August 31, 2018 and September 20, 2018 should follow the costs result on the substantive issues. He also submits he is entitled to costs for August 10, 2018.

[60] I do not accept the Applicant’s position that there was divided success on the substantive issues. The Respondent was overwhelmingly more successful than the Applicant.

[61] Therefore, in my view, the Respondent is the successful party and is presumptively is entitled to costs.

Quantum

[62] In determining the amount of costs, I am guided by r. 24(12) of the Family Law Rules:

Setting Costs Amounts

(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. O. Reg. 298/18, s. 14.

[63] The Respondent seeks costs in the amount of $4,700. The Bill of Costs which the Respondent filed on September 27, 2019 outlines amounts that he claims were paid to his then counsel, Mr. Schulz, for the appearances of August 10, 2018, August 31, 2018, and September 20, 2018 as well as $300 for photocopying, travel and service and filing of materials.

[64] The Respondent’s Bill of Costs provides an outline of his claim for costs: $1,600 for August 10, 2018; $1,200 for August 31, 2018; $1,600 for September 20, 2018; and $300 for disbursements. The Respondent submits that Mr. Schulz has 26 years of experience and his hourly rate is between $300 and $350 per hour plus GST. The Respondent submits that the amounts claimed are calculated at less than half of Mr. Schulz’s hourly rate. Mr. Schulz has not certified these amounts claimed by the Respondent.

[65] The Respondent also submits that the Applicant’s behaviour is relevant in the determination of costs. He submits that her materials are unnecessarily lengthy and criticizes her for including “unnecessary and unhelpful background.” He also submits that the Applicant’s failure to initially serve FRO with the motion lengthened the proceedings and the time needed to determine the substantive issues, resulting in an additional appearance. Further he submits that although the Applicant obtained an order to question Mr. Glinka, she did not pursue questioning and therefore the time spent on that issue was wasted time.

[66] Even if the amounts claimed by the Respondent had been certified by Mr. Schulz, I do not find that this is a case where the Respondent should receive costs on a full indemnity basis. The issues are no doubt important to the parties. I was not provided with any offers to settle which had been exchanged by the parties so I therefore assume that none were exchanged. The Respondent has not provided an outline of the time he spent preparing and arguing the motion on May 22, 2019 and September 27, 2019.

[67] Further, the August 10, 2018 appearance resulted in an order made with the consent of the parties. The appearances of August 31, 2018 and September 20, 2018 addressed scheduling of the motion, timelines for filing materials, and the issue of Tara Kim appearing as agent and interpreter for the Applicant. This was an unusual issue and given that there were two conflicting orders (Van Melle J.’s order of August 27, 2018 and the order made in the Hamilton Family Court), the appearance on September 20, 2018 was necessary. Had the issue not been determined on September 20, 2018, there was a risk of further delays if the representation issue was only raised on May 22, 2019.

[68] Therefore, in exercising my discretion, I fix costs for this motion at $2,000 on a partial indemnity basis. I find that in the circumstances, this amount is reasonable, proportional, and fair.

ORDER

[69] For the reasons outlined above, I make the following Final Order:

a) The Applicant’s request to transfer collection of the lump sum for future spousal support from the Clerk of the Superior Court of Justice in Brampton to the Family Responsibility Office is dismissed.

b) The Applicant’s request for a determination of post-judgment interest is dismissed.

c) The Applicant shall pay costs to the Respondent fixed at $2,000 and the Applicant shall pay these costs to the Respondent within 30 days of the date of this endorsement.

d) By February 27, 2020, the Applicant shall take the necessary steps to ensure that the following affidavits (and related affidavits of service) are added to the Continuing Record for Court File Number FS-06-0058306-00 and the Table of Contents is updated:

1. Affidavit of Hang Soon Kim, sworn May 8, 2019 (filed May 14, 2019);

2. Affidavit of Katarina Lesko, sworn October 8, 2019 (filed October 10, 2019); and

3. Affidavit of Hang Soon Kim, sworn October 17, 2019 (filed October 21, 2019).

Kumaranayake J. DATE: February 11, 2020