Court File and Parties

COURT FILE NO.: FC312/17

DATE: June 9, 2021

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Pamela Clare Hutchinson, applicant

AND:

Kaitlyn Ann Ross and David Walter Donald Ross, respondents

BEFORE: Tobin J.

COUNSEL: William Fawcett for Pamela Clare Hutchinson Abeer Abosharia for David Walter Donald Ross Kaitlyn Ann Ross not appearing

HEARD: June 2, 2021

SUPPLEMENTARY COSTS ENDORSEMENT

[1] Following a trial before me, I ordered the respondent father, David Walter Donald Ross (“the father”), to pay $85,000 in costs to the applicant maternal grandmother, Pamela Clare Hutchinson (“the maternal grandmother”).

[2] The maternal grandmother now moves for an order amending my costs order, apportioning 50 percent of the costs award as costs for child support.

[3] The purpose of this motion is to revive half of the father’s debt to her for costs, which was released following his discharge from bankruptcy.

Facts

[4] The applicant is the maternal grandmother of Dallas David Ross, born August 26, 2012. The respondent, David Walter Donald Ross, is the child’s father.

[5] The respondent mother, Kaitlyn Ann Ross, was not served with the motion, nor did she participate.

[6] Following a 19-day trial before me, I awarded the maternal grandmother custody[^1] of the child. The father was awarded access. At trial, the child’s mother, Kaitlyn Ann Ross, supported the maternal grandmother.

[7] The evidence at trial focussed on the issues of custody and access. The issue of child support was not a contested one. This was because in August and September 2018, the parties signed a Consent Endorsement Request that resolved the issue of child support. It provided that the father and mother would pay child support to the maternal grandmother beginning on July 1, 2018.[^2] If the maternal grandmother was awarded custody at trial, a child support order was to be made in terms of the Consent Endorsement Request. As the maternal grandmother was granted custody, the child support order was made in terms of the Consent Endorsement Request in my reasons for judgment following the trial.

[8] The parties were not able to agree on costs following the release of my reasons for judgment. The parties then made written submissions on costs. My costs endorsement was released on July 25, 2019 in which I awarded the maternal grandmother costs in the amount of $85,000 as against the father.

[9] On January 13, 2020, the father made an Assignment in Bankruptcy. In his statement of affairs, he included his debt to the maternal grandmother on account of costs in the amount of $85,000.[^3] The father was discharged from bankruptcy in October 2020. As a result of the bankruptcy, the father’s creditors will receive approximately 1.03 percent of the debts owed to them. On this basis, the maternal grandmother will receive approximately $875 through the bankruptcy on account of costs. Due to the delay caused by the COVID-19 pandemic, the father’s bankruptcy file is not expected to be completed until the fall of 2021 or early 2022. That is when the creditors’ funds are expected to be disbursed.

[10] It is in this context that the maternal grandmother asks that 50 percent of the costs awarded to her following the trial be attributed to child support. She makes this request because costs attributed to child support will not be discharged by the bankruptcy. As such, she will be able to attempt to seek payment of this debt.

Discussion

Does the court have jurisdiction to revisit the original costs order to apportion costs between support and non-support issues?

[11] The maternal grandmother argues that the court’s jurisdiction to consider her request to change the costs order is found in the Family Law Rules, O. Reg. 114/99 r. 25(19)(c), which provides:

(19) The court may, on motion, change an order that,

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

[12] The issue of apportioning costs between child support and other issues was not raised in the parties’ original submissions on costs. The only mention of child support in the maternal grandmother’s costs submissions were found at para. 30, which stated:

“Issues related to child support were resolved prior to trial.”

[13] Also, in support of her position, the maternal grandmother relies upon Philip v. Philip, 2008 39436 (ON SC) [Philip]. In Philip, the applicant, as the successful party, was awarded costs of the action. The court did not apportion costs between support and non-support issues as it was not asked to do so at the time. After the release of the costs decision, the respondent made an Assignment in Bankruptcy. Before the discharge order was made in the respondent’s bankruptcy, the applicant brought a motion for an order amending the costs order to provide for apportionment of costs under r. 15(14)(c) (now r. 25(19)) of the Family Law Rules. Although the applicant did not specifically request the court to apportion costs at first instance, the court held it was open to the court to do so on the motion (para. 12). The court held that because of the intervening bankruptcy, the original costs order “need[ed] to be changed in order to clarify matters for the trustee” (para. 13). In reaching this decision, the court relied upon Beaumont v. Beaumont, 2006 20528 (ON SC), [2006] O.J. No. 2433 (S.C.) where, in similar circumstances, Scott J. held, at para. 11:

Consequently, the matter having clearly been before me, having been reviewed and considered by me but not decided with sufficient specificity, it is necessary to clarify my original endorsement on costs.

[14] In Dorey v. Havens, 2019 BCCA 47, 18 R.F.L. (8th) 270, the court considered whether it retained jurisdiction, after the original order had been entered, to apportion costs, to designate a portion of the costs order as support-related so that it would survive a bankruptcy. The court noted the similarity between what is now r. 25(19)(c) of Ontario’s Family Law Rules and the corresponding r. 15-1(18) of British Columbia’s Supreme Court Family Rules, B.C. Reg. 169/2009, concluding that there was limited jurisdiction under the rule for a court who made the original order to subsequently apportion costs for support issues. The court concluded that this jurisdiction should only be exercised in circumstances where, had the court known about the bankruptcy, it would have apportioned the award. The court noted that the rationale for the authority to address apportionment in hindsight is to give effect to the intent of parliament – expressed in s. 178(1)(c) of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3 [Bankruptcy and Insolvency Act] – that liability for costs relating to child and spousal support should not be extinguished by the bankruptcy of the debtor (para. 29). The court also noted that this did not alter the substance of the order; it simply attributed some of the costs to support related issues (para. 29).

[15] I agree with the applicant that on the basis of these cases, the court does have jurisdiction to revisit the original costs order to apportion costs between support and non-support issues.

Should the court apportion costs to support issues in this case?

[16] An order of discharge in a bankruptcy proceeding does not release a bankrupt from a debt respecting child support: Bankruptcy and Insolvency Act s. 178(1)(c).

[17] Section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 provides:

In this Act,

“support order” means a provision in an order made in or outside Ontario and enforceable in Ontario for the payment of money as support or maintenance, and includes a provision for,

(g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance,

[18] The advantages of an order under this provision are that the costs award is enforceable by the Family Responsibility Office and the order is not discharged in a bankruptcy by virtue of s. 178(1)(c) of the Bankruptcy and Insolvency Act: Wildman v. Wildman, 2006 33540 (ON CA), 2006 CarswellOnt 6042, at para. 55. As a result, the party owed the award can collect on at least some of it.

[19] As stated above, during the trial of this matter, the issue of child support was not argued. Child support was not the subject of any party’s evidence or submissions, except for the filing of the Consent Endorsement Request and brief reference to it during submissions.

[20] When the maternal grandmother started her application against the mother and father in March 2017, she did not make a claim for child support. This issue was raised by the maternal grandmother at the June 4, 2018 settlement conference when she asked for consent to allow her to amend her application to add a claim for child support. By order made on consent at the settlement conference, Aston J. allowed the maternal grandmother to amend her application to include a claim for child support and costs.

[21] By order of McArthur J. dated July 18, 2018, the case was set down for trial for the December 2018 sittings. The judge noted that the main issues were “parenting rights (access) and decision making.” At para. 5 of McArthur J.’s order, it states that “child support shall be resolved by consent endorsement to be filed.”

[22] The Consent Endorsement Request was fully executed by September 26, 2018. This provided for the father and the mother to pay child support to the maternal grandmother.

[23] In my reasons for judgment, I noted that the parties were content that following a custody order in favour of the maternal grandmother, a child support order would issue in terms of the Consent Endorsement Request. If the father had been successful in his claim for custody, no child support would have been ordered as he was not seeking such an award.

[24] The maternal grandmother now submits that in this case the issues of custody and child support were inextricably connected. She argues that the costs of this case should be apportioned equally between custody and child support because the issue of custody was determinative of the issue of child support.

[25] The maternal grandmother’s argument is based upon the decision of Gareau J. in Taylor v. Sist, 2017 ONSC 4280 [Taylor]. In this case, the applicant brought a motion to change asking for a week about shared custody arrangement and child support in accordance with the Federal Child Support Guidelines SOR/97-175. The applicant was not successful. After an eight-day trial, the court ordered that the respondent have sole custody of the parties’ children. Child support was adjusted to conform with the requirements of the Federal Child Support Guidelines. Costs were awarded to the respondent. The applicant then made an assignment in bankruptcy. As a result, the respondent sought an order declaring that costs awarded were not to be discharged by the applicant’s bankruptcy. The court was asked to deem costs of the trial as a debt in relation to support (para. 1).

[26] With respect to the apportionment of costs after the assignment, the court held, at paras. 23 and 24;

Clearly the issue of parental time with Owen was inseparable from the issue of child support given the way the applicant’s claim for relief in the motion to change was framed. In fact, the issue of parental time was determinative of the issue of child support. The result on the shared custody claim of Mr. Taylor determined the result of the child support issue. If shared custody was ordered it would determine one result on the issue of child support. If sole custody to one parent was ordered it would determine another result on the issue of child support. Although it is accurate to say that the vast majority of the time spent at trial and the evidence led by the parties were on the issue of the shared custody claim, it is also fair to say that all the time spent on that issue was material to the issue of child support. I am of the view that the issue of child support was inextricably linked to the shared custody claim of Mr. Taylor and the two go hand in hand and cannot be separated. Although it is true that only two paragraphs of my 92 paragraph written reasons resulting from the trial deal with the issue of child support, not much turns on that given that the decision reached in the previous 89 paragraphs on the issue of the shared custody claim determined the issue of child support, leaving little to say on that issue apart from adjusting the full grid amount to reflect the current income of William Taylor.

The time expended on the shared custody issue at trial was material to the child support issue. The two issues are so intertwined they cannot be separated. The shared custody issue determined the result on the child support issue. Every piece of evidence on the issue of shared custody was in the end material to the issue of child support. I find that it is reasonable to apportion the costs ordered equally between the shared custody claim and the child support claim. Accordingly, I declare that 50% of the costs ordered on February 29, 2017 are to be considered to be a debt in relation to the support of a child living apart from the applicant, William Taylor.

[27] The father, in this case, did not argue that Taylor was wrongly decided. Instead, he argues that it is distinguishable on the basis that, in this case, child support was not an issue between the father and maternal grandmother and was not an issue that was before the court for adjudication. The parties had already made an agreement on the child support issue. In that way, the custody decision had no affect on the child support decision.

[28] The father relies on Clark v. Clark, 2014 ONCA 175, 40 R.F.L. (7th) 14 [Clark]. In Clark, the issue of spousal support was not before the trial court (paras. 12 and 13). However, the trial court’s costs order provided that the respondent would pay lump sum spousal support as costs and that the Family Responsibility Office could enforce the trial court’s order. The Court of Appeal concluded that the trial court erred in characterizing the costs awarded as lump sum spousal support for the purpose of triggering the Family Responsibility Office’s enforcement (para. 74). The court concluded that the costs awarded at trial did not arise, flow from, or otherwise relate to a live spousal support claim (para. 65). The court noted that there was nothing in the record to support a spousal support claim (para. 65).

[29] In this case, the issue of child support was before the court. I was asked to make a child support order: according to the Consent Endorsement Request, if the maternal grandmother was successful, and no child support order if the father was successful.

[30] With respect, Clark is not helpful to the father.

[31] As a matter of judicial comity, I am obliged follow Taylor unless there is a cogent reason not to do so. As Strathy J. (as he then was) noted in R. v. Scarlett, 2013 ONSC 562, at para. 43, a previous decision by another Superior Court judge “should be followed unless the subsequent judge is satisfied that it was plainly wrong.”[^4] I will follow Taylor for the principle that, regardless of how little time is spent on the contested issue of child support when parenting is also in issue, equal apportionment of costs between parenting and child support is appropriate. However, Taylor can be distinguished on the basis that, in the case before me, the issue of child support was resolved before trial. It is not necessary therefore that apportionment in that circumstance be equally between the two issues. Other factors should be considered: the purpose of costs in family law and the direction provided by the Family Law Rules.

[32] One of the fundamental purposes of modern family law costs rules is to encourage settlement: Mattina v. Mattina, 2018 ONCA 867, at para. 10.

[33] In apportioning costs for an entire case, the court should consider if the parties resolved an issue, thus saving expense and time for themselves and at trial. That should be reflected in the costs attributed to that issue.

[34] In addition, the court should consider the factors for setting costs amounts as set out in r. 24(12). These factors include the time each party spends on the issue.

[35] The reasonableness and proportionality of each factor should be considered in relation to the importance and complexity of each issue (r. 24(12)). In this case, the issue of child support was not complex. It was agreed to based upon the agreed to income levels of the parties and the Child Support Guidelines.

[36] Taking into account all of these considerations, including what I might have ordered had I been asked to apportion costs at first instance, I find that it is reasonable and proportionate to attribute ten percent of the costs awarded at trial to the issue of child support.

Order

[37] For these reasons, an order shall go that ten percent of the costs awarded in my costs endorsement of July 25, 2019 is a support order within the meaning of s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996 and, as such, is enforceable by the Director of the Family Responsibility Office.

“Justice B. Tobin”

Justice B. Tobin

Date: June 9, 2021

[^1]: Following amendments to the Children’s Law Reform Act that came into effect on March 1, 2021, the terms “custody and access” are now referred to as “decision-making responsibility and parenting time.” As the trial and costs orders were made under the old regime, I will continue to use those terms for the parties’ ease of reference. [^2]: The child was living with the maternal grandmother at that time. [^3]: In my endorsement on costs, I noted that the “full indemnity calculation” of the father was $187,566.44. In the father’s statement of affairs, he did not include any debt owing to his trial counsel. [^4]: See R. v. Whitehouse, 2021 ONSC 3833, para. 40.