Romina Barbara Lucreziano v. Giuseppi Matteo Lucreziano
COURT FILE NO.: FS-18-6497
DATE: 20210604
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Romina Barbara Lucreziano, Applicant
AND:
Giuseppi Matteo Lucreziano, Respondent
BEFORE: E.L. Nakonechny, J.
COUNSEL: Hilary Ingle, for the Applicant
Shawn M. Philbert, for the Respondent
HEARD: May 27, 2021
ENDORSEMENT
[1] The Respondent husband brings this motion for the following Orders:
a. Setting aside the Final order of Horkins, J. made October 6, 2020;
b. Directing a new hearing of all matters or, in the alternative, an order restoring the matter to the trial list;
c. If the motion is granted, leave for questioning; and,
d. Costs.
[2] The Applicant wife also brings a motion. She asks that the Respondent’s motion be dismissed. The Applicant seeks an order that the Final Order of Horkins, J. be corrected to reflect an equalization payment to her in the net sum of $299,033 inclusive of post separation credits and prejudgment interest and an order for security for costs.
[3] The wife originally took the position that the husband should not be permitted to bring his motion because he had not paid the costs ordered by Diamond, J. on March 3, 2020 and July 13, 2020 and the costs ordered by Monahan, J. on February 16, 2021. The husband paid those costs after he was served with the wife’s Notice of Motion dated March 19, 2021.
Background of the proceeding
[4] The parties were married in August 2006 and separated February 12, 2018. There are no children of their marriage.
[5] At the time of separation, the parties resided in a home owned 50% by the husband and 50% by the husband’s brother and sister in law. The husband, his brother and sister in law still reside in that home.
[6] Very shortly after separation the parties signed a Separation Agreement dated February 20, 2018. That Agreement was set aside on consent by the Order of Kristjanson, J. dated May 15, 2019.
[7] The wife commenced this Application in November 2018. The husband did not file responding material. The first case conference in February 2019 was adjourned to permit the husband to retain counsel and file materials.
[8] The second case conference took place on March 22, 2019. Paisley J. made an order for disclosure from the husband within 60 days. The husband did not produce the disclosure ordered.
[9] The wife’s counsel wrote to the husband on July 29, 3019 itemizing the disclosure outstanding and requesting an income and business valuation. The husband provided some, but not all the disclosure ordered by Paisley, J. He did not produce an income or business valuation.
[10] The wife brought a motion on September 26, 2019 for spousal support and an advance on equalization. The husband did not file responding materials and sought an adjournment. Stewart, J. granted the adjournment to a date peremptory to the husband.
[11] The motion returned before Hood, J. on October 15, 2019. The husband had not filed materials and requested a further adjournment despite the date being peremptory to him. Hood, J. granted an adjournment to December 3, 2019 on terms which included the husband making an uncharacterized lump sum payment to the wife of $30,000 and paying interim spousal support of $1,650 per month. The $30,000 was not paid within the time ordered.
[12] The husband did not file responding materials to the motion. A few days before the scheduled return, the parties consented to an order that the husband pay an advance on equalization of $80,000, continue to pay spousal support of $1,650 per month and pay costs of $5,000. The husband made no monthly spousal support payments until August 2020. Despite the Orders, the husband only paid a total of $2,262.75 as periodic spousal support.
[13] On March 3, 2020, the wife brought a motion for an uncontested trial. The husband had still not filed any responding pleadings, had not paid spousal support and had not paid the costs ordered by Hood, J. The husband appeared on the motion but had filed no materials.
[14] Diamond, J. found that there were “ample grounds to support the relief sought by the Applicant (wife)” and that “the Respondent (husband) seeks to avoid most, if not all, of the responsibility of his non-compliance with the Family Law Rules and court orders by blaming his lawyers, some of whom have not been on the record for over 4 months. This is simply unacceptable.”
[15] Diamond, J. ordered the husband to serve and file his Answer and Financial Statement, pay the arrears of support and the outstanding costs by 4:30 p.m. on March 11, 2020 and fixed costs of the motion at $3,000 payable by the husband. If the husband did not comply with the Order, Diamond, J. ordered that the wife could move on an ex parte basis for an uncontested trail.
[16] As of March 12, the husband was still not in compliance with the Diamond Order. He served an Answer and sworn Financial Statement (not fully completed) and paid the costs of the Hood Order but he had not paid the arrears of spousal support. The wife filed a 14B motion for an uncontested trial. Due to the interruption of the Courts by COVID-19, the motion did not proceed at that time.
[17] On July 13, 2020, Diamond, J. read the 14B motion and ordered that the wife may proceed with an uncontested trial by way of Affidavit. Diamond, J. found that despite being given yet another opportunity to bring his noncompliance into good standing, the husband failed to do so.
[18] The husband was served with a copy of Diamond, J.’s Order. He took no steps to appeal it.
[19] On October 6, 2020, Horkins, J. made the following final Order on the undefended trial:
a. That the husband pay equalization to the wife in the sum of $319,239 inclusive of post separation credits and interest within 30 days;
b. That the husband pay lump sum spousal support to the wife of $276,780 within 30 days;
c. That the husband pay costs ordered by Diamond, J. of $3,000 and $300 plus interest;
d. That the husband reimburse the wife for a $554 charge incurred on her Visa;
e. If the husband does not comply with the timelines for payment, the husband’s interest in the property known municipally as 51 Norbert Crescent, Toronto shall be vested in the wife pursuant to ss. 9(1)(d) and 34(1)(c) of the Family Law Act;
f. The wife may file written costs submissions; and,
g. The wife may proceed with a divorce on an uncontested basis.
[20] In Her Honour’s Reasons on the Undefended Trial, Horkins, J. made the following findings:
a. The wife filed a clear and detailed affidavit to support the relief she requested.
b. The wife has proven on a balance of probabilities that she is owed an equalization payment. Horkins, J. accepted the evidence put forward by the wife supporting the calculations including the husband’s own sworn Financial Statement and the figures therein and his financial disclosure produced.
c. The wife has proven her entitlement to spousal support and has provided a detailed analysis of the income she seeks to impute to the husband. Horkins, J. accepted the value of the imputed income in the relevant years based on the evidence in the wife’s Affidavit.
d. Horkins, J. found that it was appropriate to order a lump sum of spousal support because of the difficulty enforcing the periodic support order against the husband. The husband had not paid support pursuant to the Hood Order and the Family Responsibility Office could not collect the arrears owing.
e. Horkins, J. found that the husband had consistently failed to comply with court orders. Because it was unlikely that the husband would comply with Her Honour’s order, Horkins, J. found it was appropriate to grant an order vesting the husband’s interest in the matrimonial home to the wife to secure the payment of the orders for equalization and lump sum support.
[21] The husband was served with the Horkins Order. He did not make the payments ordered to the wife within 30 days.
[22] On February 16, 2021, Monahan, J. made an order vesting the husband’s 50% interest in the home in the wife. The wife has not moved to enforce that Order.
The husband’s argument
[23] The husband argues that the calculations of equalization and lump sum spousal support in the Horkins Order are based on inaccurate information, misrepresentations, and/or mistakes. In support of this claim, the husband points to the wife’s own motion where she acknowledges that her equalization calculations failed to include a $20,000 credit to the husband.
[24] The husband argues that that in calculating the equalization payment the wife incorrectly attributed corporate bank accounts as his personal assets, misrepresented the value of the matrimonial home, failed to attribute a date of marriage value to a cottage property owned by the husband and refused to acknowledge a joint debt.
[25] The husband argues that the wife failed to provide full financial disclosure including her full income from employment and settlement funds received from an accident.
[26] The husband states that the wife failed to credit the husband with certain post separation adjustments including payments he made on her behalf for furniture, automobile insurance, and $20,000 paid on his behalf by the wife’s brother, Mr. Pintucci. The wife acknowledges that this payment was not credited and asks this Court to make that correction to the Horkins Order.
[27] The husband relies on Rule 25(19) of the Family Law Rules which permits the Court to change an order that contains a mistake or was made with notice if an affected party was not present because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present. He argues that this Rule permits the court to set aside the order if a variation would not produce a just result: Gray v. Gray, 2017 ONCA 100 at para. 31.
[28] The husband argues that he has met the five factors of the test in Mountainview Farms Ltd. v. McQueen, 2014 ONCA 194, which permits the Court to set aside a default judgment:
a. Timeliness of Motion to Set Aside: The husband received the Horkins Order on October 6, 2020. He retained counsel on October 19 who immediately corresponded with the wife’s counsel asking her to defer enforcement or to agree to stay the order. He offered to make part payment as a show of good faith.
b. Plausible Explanation for the Default: The husband states that he takes prescribed OxyContin for a back injury sustained at age 19. The long-term use has affected his mental health. He says he finds it difficult to understand the complexities of the litigation.
c. An Arguable Defence on the Merits: The husband argues that the evidence used by the wife on the uncontested trial was deficient and misleading. Specifically he states that the wife attributed funds in a corporate bank account that was being held in trust for clients to him personally; mis-valued his interest in the matrimonial home; failed to attribute a date of marriage asset to him and failed to acknowledge a joint debt/personal loan. These items, along with the wife’s failure to give evidence of her true income and to fully credit the husband for post separation adjustments are meritorious defences to the wife’s claims and should be tested at trial.
d. Potential Prejudice: The husband argues that he will suffer substantial prejudice if the Horkins Order is not set aside. His financial situation has deteriorated due to COVID-19 restrictions on construction. This financial hardship has also exacerbated his health issues. The Horkins Order is very financially prejudicial to the husband.
e. Overall Effect on the Integrity of Justice: The husband argues that it would be unjust to allow the Horkins Order to stand because it is based on misrepresentations and material omissions. The Order must be set aside to preserve the integrity of justice.
The wife’s argument
[29] The wife accepts that the husband has met the timeliness factor in the Mountainview test. However, she argues that the husband has not met the other four factors in the test and states that the Horkins Order should be upheld, with the equalization payment corrected to credit the husband with the $20,000 payment.
[30] The wife states that the husband does not have a plausible excuse or explanation for his default. The husband was represented by two experienced family law lawyers at different points in the litigation. He attended court and was present for the conferences and the motions before Paisley, J., Stewart, J., Hood, J. and Diamond, J. At no time did he or his counsel raise the issue that the husband was incapacitated or unable to participate in the litigation or instruct counsel due to his use of prescription painkillers or mental health issues.
[31] In his evidence on this motion, the husband does not specify how his use of medication or his mental health issues prevented him from producing the required pleadings, financial disclosure or complying with the orders requiring him to pay spousal support and costs. The letter and medical documents from the husband’s physician confirm that, despite a diagnosis of depression, the husband continued to work in construction and operate his business.
[32] The wife denies that the husband has an arguable defence on the merits. She states that all the issues raised by the husband were before Horkins, J. on the uncontested trial:
a. The wife imputed income to the husband based on his own disclosure. She calculated his pre-tax corporate income based on a 2017 Internal Profit and Loss Statement for the husband’s company. The wife added the management salary paid to him plus personal expenses paid through the business plus a gross up. The husband does not dispute this calculation. The husband also does not refer to any other or further evidence which would change the result determined by Horkins, J.
b. The wife used most of the figures contained in the husband’s Financial Statement sworn March 10, 2020 to calculate the equalization payment in her net family property statement before Horkins, J. The husband’s Financial Statement was prepared by counsel and sworn by the husband. The Statement lists the value of the husband’s interest of the matrimonial home at $745,000, lists the CIBC corporate accounts as the husband’s personal accounts in the amounts of $130,211 and $1,655, and lists the personal loan from Mr. Pintucci as his sole debt in the amount of $15,000. In her Affidavit on the uncontested trial the wife included a copy of the handwritten note dated March 1, 2017 showing Mr. Pintucci as the lender and the husband as the sole borrower for this debt.
The wife was not aware of the husband’s claim to an interest in the Georgian Bay property until she received the March 10 Financial Statement where he listed it as a date of marriage asset. The husband had not produced any disclosure relating to this asset. The wife did not accept the husband’s claim and set out her position on this date of marriage deduction in her Affidavit before Horkins, J.
c. The wife denies that she misrepresented her income in her evidence before Horkins, J. The husband has produced no evidence to show that she has other than bald allegations regarding employment that ended in 2014 and settlement funds from a car accident in 2009, both many years before the date of separation and the Horkins Order.
[33] The wife argues that the prejudice to her would be far greater if the Horkins Order was set aside. The wife complied with her obligations under the FLR and paid substantial legal fees to counsel to take all of the steps in the litigation up to the Horkins Order and the subsequent steps necessary to secure payment under the Order.
[34] Conversely, the husband did not comply with court orders, did not file pleadings in accordance with the FLR, did not produce disclosure, did not pay spousal support, and did not pay costs. He sought and was given numerous adjournments and indulgences by the court to participate and put his case fully before the court. He chose not to do so.
[35] The wife argues that the husband now seeks a further indulgence to re-open the case because he is not happy with the consequences of his inaction. She states that any prejudice suffered by the husband is as a result of his own behaviour. She should not be prejudiced by having to spend the time and money to argue the case all over again.
[36] The wife is unemployed and receiving Employment Insurance which is time limited. Although Monahan, J. has made the vesting Order, it has not been enforced, so the wife has not realized the payments of lump sum support or equalization. She states that her financial situation will be considerably worsened if the Horkins Order is set aside.
Law and Analysis
[37] Arguing a trial on an uncontested basis puts the moving party in a very difficult situation. The fact that the trial is proceeding uncontested means that the other party has not responded at all or has failed to comply with Court orders or their obligations under the FLR to the point where a judge has exercised discretion under Rule 1(8) to strike their pleadings. This often leaves the moving party with little or no evidence with which to prove their claims.
[38] Here, the husband failed to comply with several court Orders. He did, however, produce some financial disclosure and two sworn Financial Statements prepared by counsel. The wife put this evidence before Horkins, J. in her Affidavit on the uncontested trial. Horkins, J. made findings based on the husband’s evidence.
[39] The husband seeks to set the Order aside on the basis that there was mistake or misrepresentation by the wife.
[40] In Gray, the Ontario Court of Appeal held that Rule 25 (19)(e) of the Family Law Rules includes the power to set aside an order and that the use of this Rule promotes primary objective in Rule 2 (2) and (3), to deal with cases justly.
[41] In determining whether to set aside the Horkins Order, I must consider whether it is just in the particular context and circumstances of this case to relieve the husband from the consequences of not participating in the court process and not complying with the orders for disclosure, filing of pleadings, payment of spousal support and costs.
[42] The five factors in Mountain View are not to be rigidly applied. If the Court finds the moving party has arguable defence on the merits, it may exercise its discretion to set aside the default judgment, even if the other factors are not completely satisfied. The moving party need not show the defence will inevitably succeed, only that it has an air of reality: at para. 51.
[43] I now turn to the five factors in the context of this case.
Timeliness
[44] The wife does not dispute, and I agree that the husband moved in a timely way to set the Order aside.
Plausible Explanation
[45] The husband’s only explanation for failing to comply with the Court Orders appears to be his use of prescription medication and the effect it has had on his mental health. He attaches to his Affidavit a short letter from Dr. Tse, his physician since 1998, enclosing the husband’s medical chart.
[46] Dr. Tse states that the husband has been taking OxyContin for many years against the doctor’s recommendation so that he could continue working in construction. The doctor states the husband was chronically depressed and did not seek proper treatment. The doctor gives no specifics of the time frame of the diagnosis of depression or the impact it had on the husband’s ability to participate in this litigation.
[47] Rule 14(18) of the Family Law Rules states that an affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.
[48] Rule 14(19) further provides that:
The affidavit may also contain information that the person learned from someone else, but only if,
(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and
(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.
[49] Rule 14(19) allows for hearsay only in restricted conditions. The case law identifies potential issues with the admissibility of the doctors’ letters attached to a party’s affidavit. In some cases, courts have rejected unsworn doctor’s letters as inadmissible because the letters contained no evidence as to the doctor’s qualifications and there was no opportunity to cross-examine the doctor. While a doctor’s letter or report will not be excluded solely because it is not in the form of an Affidavit, the Court must be satisfied of the truth of the facts contained in the letter or report: Ceho v. Ceho, 2015 ONSC 5285, Kozak v. Kozak, 2018 ONSC 690.
[50] The husband’s evidence confirms the information set out in the doctor’s letter. It is clear what the source of the doctor’s information is. Dr. Tse has been the husband’s treating physician since 1998 and the information comes from the doctor’s interaction with and treatment of the husband. I find that the doctor’s letter and medical charts are admissible.
[51] However, the doctor’s letter and attached medical notes and records for the time period do not satisfy me that the husband’s mental health prevented him from participating in the litigation or complying with court orders. The explanation the husband gave to Diamond, J. on March 3, 2020 when he was given a further chance to comply with his obligations and participate in the proceeding was that his lawyers were at fault. He could have raised the issue of his mental health at that time and did not.
[52] I find that the husband has not given a plausible excuse or explanation for his default.
Arguable Defence on the Merits
[53] The husband argues that the wife made mistakes and misrepresentations in her evidence before Horkins, J. I do not agree. The wife used the husband’s own sworn financial disclosure and back up documentation in her net family property statement including his value of his one half interest in the matrimonial home, his personal interest in his corporate bank accounts and the his sole debt to Mr. Pintucci. Where she did not agree with the husband’s evidence, such as the date of marriage deduction for the cottage property, she put her explanation before the judge who decided whether to accept the wife’s argument.
[54] The wife used the husband’s own 2017 Profit and Loss Statement from his company to calculate the income she sought to impute to him. She put those calculations before the judge in her Affidavit material and attached exhibits. Horkins, J. made findings based on the wife’s evidence and accepted her position and her calculations on income and equalization.
[55] The husband acknowledges that there are errors in his own sworn Financial Statements. He also acknowledges that he solely signed the note for the loan from Mr. Pintucci but says the parties used the funds equally so the wife should be liable for one half. The husband states that he should not be held to his sworn Financial States because, if the litigation had continued, he would have filed updated corrected evidence.
[56] Rule 13(15) requires a party to correct and update their documents as soon as they discover that it is incorrect, incomplete or out of date. The husband was ordered by Paisley, J. to produce financial disclosure. He did not. He was given an opportunity by Diamond, J. to continue to participate in the proceedings by complying with existing court Orders and providing correct financial information. He did not.
[57] Horkins, J. made findings based on both parties’ evidence and the wife’s arguments. The husband cannot now fault the wife for obtaining an Order based on the best evidence available to her when he chose not to put his best evidence before the Court.
[58] The husband argues that cases should be determined on their merits and not “derailed on a technicality”. He asks this court to give scrutiny to whether there is a triable issue.
[59] In my view, there is not. The husband may not agree with the wife’s arguments made at the uncontested trial, but he has not provided evidence which shows that the wife misrepresented the evidence or made material omissions. All the issues raised by the husband as possible defences on the merits were put before Horkins, J. by the wife. Her Honour considered the arguments and made findings on those issues. The husband has not provided evidence which directly contradicts the findings of fact made by the trial judge.
Potential Prejudice
[60] The husband will be prejudiced if the Order is not set aside. His interest in his home which he owns jointly with his brother and sister in law is now vested in the wife’s name. However, any prejudice to the husband is a direct result of his own failure to provide disclosure and participate in the process. “When a party does not participate in the process, things tend not to go well”: Hilton v. Hilton, 2021 ONCA 29 at para. 10.
[61] The wife has spent significant time and money to comply with her obligations in the proceeding. She is understandably concerned that if the Horkins Order is set aside, the litigation will essentially be starting afresh almost three years from the date the original Application was issued.
[62] Family law cases are stressful, emotional and costly for all parties. No one involved benefits from protracted or repeated litigation. On balance, I find the prejudice to the wife leans in favour of dismissing the motion to set aside the Order.
Integrity of the Administration of Justice
[63] This Court has stated many times that the most basic obligations in family law are the duties to make prompt and complete financial disclosure and to comply with court Orders. If a party repeatedly fails to do so, the Court must exercise its jurisdiction to police its own case management process and protect the administration of justice as a whole: Manchanda v. Thethi 2016 ONSC 3776 and Granofsky v. Lambersky 2019 ONSC 3251.
[64] No one of the five factors are determinative. I must consider the totality of circumstances. In this case, given the lack of a plausible excuse or explanation for the failure to produce financial disclosure and comply with court orders, the failure to prove misrepresentation by the wife or provide evidence to refute the findings of fact made by Horkins, J. which would show an arguable defence on the merits, I am of the view that the husband’s’ motion to set aside the Horkins Order should be dismissed. This is consistent with the Family Law Rules objective of ensuring that matters are dealt with justly.
The $20,000 credit to the husband
[65] Both parties agree that the husband is entitled to a $20,000 credit for the payment made to the wife by way of bank draft from the wife’s brother. I accept the wife’s evidence that this was an inadvertent calculation error. Rule 25(19) permits the Court to change an order that contains a mistake. Paragraph 1 of the Horkins Order shall be amended to reflect an equalization payment owing from the husband to the wife of $299,033.06 inclusive of post separation credits and prejudgment interest.
Security for Costs
[66] Because I have found that the husband’s motion to set aside the Horkins Order should be dismissed, I do not need to address the wife’s claim for security for costs.
Costs
[67] At the hearing of the motion, I asked the parties if they had filed Bills of Costs and if they were prepared to send their offers to settle which I would review after writing my decision on the merits of the motion. They agreed.
[68] After finalizing my decision on the merits, I reviewed the material filed by the parties.
[69] Modern costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under Rule 2(2) of the Family Law Rules: Mattina v. Mattina, 2018 ONCA 867.
[70] Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party. Rule 18(14) sets out the costs consequences to a party if they fail to accept an offer and the party who made the offer obtains an order that is as favourable or more favourable than their offer.
[71] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality: Beaver v. Hill, 2018 ONCA 840. An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) (unreasonable conduct of a successful party), Rule 24(8) (bad faith), Rule 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party: Berta v. Berta, 2015 ONCA 918 at para. 94.
[72] I have considered the factors set out in Rule 24(12) of the FLR. Rule 24(5) provides criteria for determining the reasonableness of a party's behaviour in a case (a factor in clause 24(12)(a)(i)).
[73] I have considered Boucher et al. v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ONCA) at para. 26, where the court held that "the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant." The costs determination must reflect proportionality to the issues argued. There should be a correlation between legal fees incurred (for which reimbursement is sought) and the importance or monetary value of the issues at stake. See also Oduwole v. Moses 2016 ONCJ 653.
[74] This case was not factually complicated, but it was of the utmost importance to both parties. The husband sought to re-open the litigation so that he could put forward his case on the merits. The wife sought to preserve the Order she obtained at the uncontested trial.
[75] Both parties served Offers to Settle. The husband’s offer dated March 29, 2021 contained severable sections regarding a stay of the Horkins Order, payment of the outstanding costs Orders and payment of security for costs. The wife’s offer dated March 19, 2021 provided that the equalization payment ordered by Horkins, J. would be reduced by $20,000 and that the balance of the claims in each party’s motion would be dismissed.
[76] The wife was successful in defending the husband’s motion. She did as well or better than her offer and is presumptively entitled to her costs.
[77] In my view, neither party behaved unreasonably in the circumstances. This was not a case where there was much room for compromise. Either the order was set aside, or it was not. Even with the best of intentions, the matter had to proceed to court for a determination.
[78] In examining the time spent, Ms. Ingle and Mr. Philbert’s hours are roughly consistent, 31 for total fees of $7,720 and 45 for total fees of $12,644. Some work was performed for the Respondent by junior lawyers and law clerks in Mr. Philbert’s office at a lower hourly rate.
[79] I find that the hourly rates and disbursements claimed are reasonable for a motion of this importance.
[80] Based on the factors in Rules 18 and 24 and the case law, I find that substantial but not full recovery costs are appropriate. In fixing costs, I must determine what is fair and reasonable and balance compensation of the successful party with the goal of fostering access to justice. I order that the husband shall pay to the wife her costs fixed in the amount of $6,600 inclusive of disbursements and HST in 30 days.
Order
[81] I make the following Order:
a. The Respondent’s motion to set aside the Order of Horkins, J. dated October 6, 2020 is dismissed.
b. Paragraph 1 of the Order of Horkins, J. is amended to reflect an equalization payment owing from the Respondent to the Applicant in the net amount of $299,033.06 inclusive of post separation credits and prejudgment interest.
c. The Respondent shall pay the Applicant her costs of this motion fixed in the amount of $6,600 inclusive of disbursements and HST in 30 days. These costs shall be enforceable by the Family Responsibility Office as legal fees related to the collection of spousal support.
[82] This Endorsement is an Order of the Court, which is valid, binding and enforceable from the moment it is released regardless of when it is entered.
E.L. Nakonechny, J.
Date: June 04, 2021