COURT FILE NO.: FS-18-00091843-00
DATE: 2022 09 02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARILENA RUS
Self-Represented Applicant
Applicant
- and -
VASILE OVIDIU RUS
Hamza Talpur, for the Respondent
Respondent
HEARD: June 16, 2022
Motion to Change
Dennison J.
Overview
[1] The respondent, Vasile Ovidiu Rus (“respondent”), brought a motion to change the amount of spousal and child support he was ordered to pay the applicant, Marilena Rus (“applicant”). On November 2, 2021, I granted the motion based on the father’s new employment income.
[2] The matter was to continue before me after the Family Responsibility Office (FRO) provided calculations based on the reduced spousal and child support that was payable by the respondent. FRO advised that the respondent overpaid the applicant $63,683. This would mean that the applicant would not receive spousal support for approximately six years based on the revised amount of spousal support to be paid. On February 3, 2022, the parties entered into a consent agreement regarding a lump sum spousal support payment.
[3] Shortly, after the court issued the consent order, the respondent wrote the court to advise that although the parties had agreed that lump sum would be tax deductible to the respondent, the Canada Revenue Agency would not permit the deduction. The mother would not consent to amend the order. In the circumstances, I found that there had not been a meeting of the minds when the parties entered into the agreement, and I set that order aside. The parties cannot agree how to move forward, hence this motion.
[4] There are four issues to be decided on this motion:
Should the court order spousal support be paid as a lump sum?
When should child support terminate?
Should the monies held in court be returned to the respondent?
What monies should be paid for their daughter, I.R.’s, s. 7 expenses?
Background Facts
[5] The parties married on October 14, 1995 and separated in February 2018. They have two children. S.R. was born in 1997. He is living on his own and attending law school. I.R. was born in 2003. She currently attends Queens University. The applicant was born in 1969 and the respondent was born in 1964.
[6] On January 6, 2020, the parties entered into a final consent order before Kurz J. The parties agreed that the respondent would pay child support for the daughter in the amount of $2,350 per month based upon the respondent’s annual income imputed at $304,000. The parties agreed that the s. 7 expenses should be paid proportionate to the parties’ incomes. The agreement also provided that the parties may bring a motion to establish the appropriate amount based on a material change in circumstances.
[7] With respect to spousal support, the parties agreed that the respondent would pay the applicant spousal support in the amount of $3,500 per month. The order permitted either party to bring a motion if there was a material change in circumstances.
[8] On January 14, 2020, a hearing took place before Barnes J. that determined the date of separation, equalization payment, and other adjustments for arrears of child and spousal support.
Changes in the respondent’s employment
[9] The respondent worked in Japan as avionics engineer with Mitsubishi when he made the consent agreement. His income was the equivalent of $304,000 CAD.
[10] Covid-19 had a significant impact on the airlines industry. On June 17, 2020, the respondent entered into a furlough separation agreement with Mitsubishi. This was prior to the release of Barnes J.’s decision issued on September 22, 2020. The respondent received 80% of his wages from July 1, 2020, until his employment ended with Mitsubishi in November 2020, and he returned to Canada.
[11] Prior to returning to Canada, the respondent successfully obtained employment with Bombardier Transportation in Kingston, Ontario, earning an annual salary of $110,000. He is working as a senior safety and reliability engineer. His salary is comparable to the annual salary he previously earned while working in Canada. His contract also states that he is able to participate in the variable short term incentive plan. This bonus target represents 4% of annual earned salary.
[12] On September 22, 2020, Barnes J. confirmed Kurz J.’s order and ordered the respondent’s share of the proceeds of the matrimonial home be held in court as security for his support obligations. As noted by Justice Barnes, the respondent was in significant arrears and there was no ability for FRO to secure payments from Japan.
[13] When the respondent’s employment in Japan ended in November 2020, he advised the applicant of his new income and sought to reduce his spousal and child support obligations. The applicant refused.
The motion to change
[14] The respondent filed a motion to change on March 26, 2021, seeking to change his support obligations given the reduction in his income and to release the funds held in court for his support obligations.
[15] On June 21, 2021, LeMay J. ordered that $100,00 be paid to the Director of FRO from the respondent’s equity in the now sold matrimonial home from the funds held in trust by the Superior Court of Justice.
[16] I heard the motion to change on September 21, 2021. On November 2, 2021, I released my decision finding there was a material change in circumstances and made several orders. The important orders for the purpose of this motion include:
The respondent shall pay to the applicant, monthly child support in the amount of $1,023, for the child, I.R, commencing January 1, 2021, until August 1, 2021, inclusive, based on the Respondent's annual employment income of $114,400 and the Child Support Guidelines.
The respondent shall pay to the applicant, monthly spousal support in the amount of $102, commencing January 1, 2021, until August 1, 2021, inclusive, based on the Respondent's annual employment income of $114,400 and the Applicant's annual employment income of $79,500.
The respondent, shall pay to the applicant monthly spousal support in the amount of $860, commencing September 1, 2021, based on the respondent's annual employment income of $114,400 and the Applicant's imputed annual income of $79,500 indefinitely.
The applicant shall pay to the respondent, monthly child support in the amount of $740, for the child, I.R., born March 25, 2003, commencing September 1, 2021, based on the applicant's imputed annual income of $79,500 and the Child Support Guidelines.
The respondent, Vasile does not owe any child support payments as of September 1, 2021. For clarity, this does not include s. 7 expenses relating to I.R.
All spousal support payments made or credited after January 1, 2021 shall be tax deductible by the respondent and shall be included in the income of the applicant.
On June 1 of each calendar year, child support shall be adjusted for the next twelve months based upon the previous calendar year’s income. If either party disputes the income or wishes to impute an income, that party may bring a motion for the purpose of establishing the appropriate income. This clause shall not preclude either party from brining a motion to change based on material change in circumstances
The parties were to immediately obtain an updated statement of arrears from the FRO.
Upon receipt of the statement of arrears and within 30 days of receipt of this judgment, the parties were to contact the trial coordinator’s office to continue the motion to determine two issues:
i) whether the funds suggested by the respondent for I.R.’s undergraduate degree are sufficient; and
ii) whether there is a basis to continue to hold the money in court as security for future spousal support payments.
- The issue of costs was reserved to the further hearing of the motion.
The continued motion
[17] At the continuation of the motion on February 3, 2022, the court was advised that that the respondent overpaid child and spousal support in the amount of $64,683 to FRO. This would mean that the applicant would not receive any spousal support for approximately six years based on the overpayments. The respondent wanted to make a lump sum spousal support payment.
[18] On this date, the parties entered into a consent agreement that the respondent agreed to pay the applicant lump sum spousal support in the amount of $90,000. A credit of $64,683.00 was to be given to the respondent for the overpayments. The mother would receive $25,317 from the monies held in court for child and spousal obligations. The spousal support payments were taxable as income to the applicant and deductible to the respondent.
[19] The parties also agreed how to deal with all their daughter’s s. 7 expenses for university.
Motion to set aside
[20] On February 11, 2022, the respondent’s counsel wrote the court to advise that there was an issue with the agreement and the tax consequences. While the agreement provided for the lump sum payment to be tax deductible for the respondent, the Canada Revenue Agency did not permit this. I advised the parties that if there was any change to be made to the order, it had to be appealed or a motion to set it aside could be brought.
[21] Counsel for the respondent brought a motion to enforce the agreement with changes to the amounts to be paid as a result of the tax consequences. The applicant did not consent. I set aside the consent agreement finding that there was not a meeting of the minds when the agreement was reached and that it would not be in the interests of justice to enforce it.
[22] The parties are now back before me for a fourth time.
Position of the Parties
The respondent’s position
[23] The respondent submits that a lump sum spousal support payment is in the best interests of the parties. The respondent has overpaid spousal support to the applicant and will therefore not have to pay spousal support for 77 months or approximately 6 years.
[24] The respondent submits that there are several advantages of a lump sump payment. First, it affords a clean break between the parties. Second, the applicant has acted unreasonably throughout so there is no basis to believe that she will act reasonably in the future. Third, it allows the applicant immediate access to capital, whereas if the indefinite spousal support payments are ordered, the applicant will not receive any money for over 6 years.
[25] The respondent also points out that the applicant did not advise the court that she had re-partnered, nor did she provide any evidence as to her new partner’s income which deprived the respondent of the opportunity to argue for a lower support payment at the original hearing of the motion.
[26] The respondent submits that in calculating the lump sum payment, the court should consider that the calculations should include payment at the very latest until the respondent turns 65 years old, at which point, he would retire, and his income would significantly diminish, and the applicant would likely earn more money than him at that time because she is younger.
[27] With respect to child support. The father submits that child support should terminate in February 2022 and at the latest May 2022 because their daughter rented an apartment in Kingston and will be spending the summer with both parents.
The applicant’s position
[28] The applicant submits that the court should not order lump sum spousal support given the court’s previous order. The applicant has to renew her employment contract yearly and that may impact her ability to obtain employment.
[29] The applicant also submits that the respondent erred in the amounts he submits that the applicant contributed to her RRSP in 2018 to 2020. The applicant states she made no contributions and that this is an attempt by the respondent to limit the amount of support that the applicant is entitled to.
[30] The applicant also submits that the daughter has been residing with her again and therefore she is entitled to child support for the months she has lived with her until she returns to school in September 2022.
[31] The applicant is agreeable to the terms for their daughter’s s. 7 expenses for university and is now agreeable to release the funds that are held by the court.
Analysis
Issue #1: Should the court order a lump sum spousal support payment?
[32] Section 15.2(1) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp) provides the court with the jurisdiction to order lump sum support:
5.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
[33] Section 15.2(4) set out the factors the court must consider as follows:
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
[34] Lump sum spousal support payments are not limited to “very unusual circumstances as a matter of principle.” However, for practical reasons, “most spousal support orders will be in the form of periodic payments”: Davis v. Crawford, 2011 ONCA 294, 106 O.R. (3d) 221, at para. 70.
[35] The jurisprudence has listed various advantages and disadvantages that the court should consider in balance in determining if a lump sum award is appropriate, noting however that the advantages and disadvantages are highly variable and case specific. Such factors are noted in Davis v. Crawford at paras. 66-68, 70-74:
Whether the payor has the ability to make the lump sum payment without affecting their future self-sufficiency.
The benefit of a clean break terminating ongoing contact.
If the lump sum could provide capital to meet an immediate need of a dependant spouse.
If there is a real risk of non-payment if a lump sum is not ordered.
If the need and means of the party’s change, the parties will be deprived of the right to apply for a variation.
The difficulties inherent in calculating a lump sum award in place of ongoing indefinite periodic spousal support.
[36] I am not satisfied that it is appropriate to order lump sum spousal support without the consent of the applicant after balancing all of the relevant factors.
[37] I begin by noting that there are several factors that weigh in favour of granting a lump sum payment. The respondent has the ability to make the lump sum payment given the money held by the court. In addition, the applicant would have access to capital now, whereas a result of the overpayment she is unlikely to receive any spousal support for over 6 years. It would also benefit the respondent because he would have access to the overpayments now as opposed to waiting until the credits he has accrued are depleted and may provide the parties with a clean break.
[38] I am not satisfied there is a real risk that the respondent will not pay spousal support if a lump sum payment is not ordered. The court required the respondent to post security with the court for spousal support payments in large part because he was residing in Japan and there was no way for FRO to enforce payment. He now resides and works in Ontario for a corporation. In addition, the respondent has significantly overpaid spousal support so the issue of non-payment cannot arise for several years.
[39] The factors that weigh heavily against granting the lump sum payment are that it will deprive the parties of the right to apply for a variation and the difficulties in calculating the lump sump payment.
[40] In this case, the purpose of spousal support is to compensate the applicant for the economic consequences she suffered and continues to suffer as a result of the breakdown of the marriage. I outlined those consequences in greater detail in my original decision. The respondent received a substantial benefit to his income-earning potential as a result of the applicant’s sacrifices and contributions. The compensatory model recognizes that the sacrifices, contributions, and benefits conferred often lead to an interdependency between the spouses and a merger of their economic lives: see Cassidy v. McNeil, 2010 ONCA 218, 99 O.R. (3d) 81.
[41] This was not a short-term marriage; the parties were married for 23 years so their economic interests were merged for a considerable period of time. It is for that reason that despite the able submissions of counsel, I did not impose a duration for how long spousal support was to be paid in my earlier decision. I determined that spousal support should be paid indefinitely. Indefinitely does not mean forever, it means when the circumstances are such that support should be varied. It is difficult to predict if and how long the disparity between the parties’ income will continue.
[42] It is also difficult to calculate an appropriate lump sum payment given the variables that exist. How long is the respondent expected to work? What if he works longer than the duration used to calculate the lump sum payment? What if something happens to the respondent and he can no longer work? What if he obtained another high paying job in a foreign country? What if the applicant is unable to renew her contract? What if the applicant obtains a full-time job that pays more? What value should the court place on the use of the money with the current change in interest rates.
[43] This is not a case like Matthers v. Crowley, 2021 ONSC 8149, at para. 31 where the court granted a lump sum payment. In that case, both parties were retired, and their economic situations were therefore stable. In this case, there is a concern that the economic situation of either party could fluctuate significantly. The applicant has to renew her employment contract every year. The respondent’s work history shows that his income may vary significantly.
[44] After balancing all of the factors, I am of the view that this is not an appropriate case to grant lump sum spousal support payment. There are simply too many variables that may occur in the future that may alter the respondent’s income level or the applicant’s need for support that weigh in favour of keeping support indefinite.
Issue 2: When should child support be terminated?
[45] At the time of the November 2021 order, the parties’ daughter resided with the respondent while attending school and therefore the applicant was required to pay child support.
[46] The parties agree that child support should be terminated but disagree about as to when that should commence. The respondent submits in February 2022, the parties agreed that no child support would be payable as of February 2022. That order was set aside, and the applicant will not confirm that she is agreeable to this. The respondent therefore submits that at the latest, no child support should be payable as of May 1, 2022 because that is the date their daughter rented an apartment with her friends for university. He states that their daughter intends to spend her holidays with both parents and is working during the summer.
[47] The mother disagrees that child support should be terminated on February 25, 2022. The mother submits that their daughter lived with her from December 15, 2021 to February 25, 2022 and from the last week of April to the hearing of the motion. Their daughter moved out of the respondent’s home and is working in Mississauga and will live with the applicant until September 2022 when she will move into her rental unit in Kingston for University. If the court finds that child support should be terminated in May, 2022, the mother submits that the court should deduct two months of child support from the overpayments made by the respondent.
[48] The previous consent agreement was set aside by the court. I therefore cannot force the applicant to agree to a term from that agreement.
[49] I am satisfied that the daughter lived with her mother as the mother stated and that she will be living with her mother in Mississauga for the summer while she works. There is no evidence that the daughter has a job in Kingston to suggest that she would be living on her own. Given the change in their daughter’s living situation, it is appropriate to amend my previous order to accurately reflect when the daughter was residing with each parent.
[50] The following orders are to be made to reflect the living situation of their daughter:
For the months of January, February, and May to August 2022, the respondent shall pay child support to the applicant in the amount of $1,023.
For the months of January, February 2022 and May to August, the respondent shall pay spousal support to the applicant in the amount of $102.
[51] The parties agree that no further child support is to be paid after September 1, 2022. This is the date the daughter commences school and will be living in her apartment.
Issue #3: Should the funds being held for security be released?
[52] There is approximately $280,000 held in court as security for the respondent’s support obligations. Initially, the applicant opposed the release of the funds. She no longer opposes the release of the funds.
[53] I am satisfied that the court should release funds held for security for support to the respondent for the following reasons.
[54] First, the respondent has significantly overpaid spousal support. The applicant owes him $64,683.00.
[55] Second, when the court ordered that security be held by the court, the respondent had significant child support obligations. Those concerns are now diminished as the parties have agreed how to pay their daughter’s s. 7 expenses for university and to terminate child support payments.
[56] Third, the primary reason for the order was that the respondent worked in Japan and FRO could not take any enforcement steps if necessary. Currently, the respondent works for a corporation and resides in Ontario. If there is any issue with paying support, FRO is in a position to take the necessary steps to enforce the spousal support payments.
Issue #4: How should the daughter’s university s. 7 expenses be addressed?
[57] The parties agree how to deal with the daughter’s university expenses. I am satisfied that the agreement is in the best interests of their daughter.
Conclusion
[58] I make the following amendments to my previous order dated November 2, 2021:
The respondent, Vasile Ovidiu Rus, shall pay to the applicant, Marilena Rus, monthly child support in the amount of $1,023, for the child, I.R., born March 25, 2003, commencing January 1, 2021, until August 1, 2021 and on January 1, February 1, May 1, June, 1, July 1 and August 1, 2022 inclusive, based on the respondent's annual employment income of $114,400 and the Child Support Guidelines.
The respondent, Vasile Ovidiu Rus, shall pay to the applicant, Marilena Rus, monthly spousal support in the amount of $102, commencing January 1, 2021, until August 1, 2021 and on January 1, February 1, May 1, June 1, July 1, and August 1, 2022 inclusive, based on the respondent's annual employment income of $114,400 and the applicant's annual employment income of $79,500.
The applicant, Marilena Rus, shall pay to the respondent, Vasile Ovidiu Rus, monthly child support in the amount of $740, for the child, I.R., born March 25, 2003, from September to December 2021, and March and April 2022 based on the applicant's imputed annual income of $79,500 and the Child Support Guidelines.
Child support for the child I.R. born March 25, 2003 shall be terminated as of September 1, 2022.
The respondent, Vasile Ovidiu Rus, shall pay to the applicant, Marilena Rus, monthly spousal support in the amount of $860, commencing September 1, 2021 to December 2021 and March and April 2022 and recommencing on September 1, 2022 based on the respondent's annual employment income of $114,400 and the applicant's imputed annual income of $79,500 indefinitely or unless otherwise agreed to by the parties.
All spousal support payments and child support payments made after January 1, 2021 to the applicant shall be tax deductible by the respondent, Vasile Ovidiu Rus and shall be included as income to the applicant, Marilena Rus.
The respondent, Vasile Ovidiu Rus, shall pay $40,000 to the parties’ daughter, I.R., from the monies currently held by the Court. This amount shall represent the respondent’s s. 7 contributions towards I.R.’s undergraduate education.
The respondent, Vasile Ovidiu Rus, shall be released from further s. 7 payments with respect to I.R.’s undergraduate university education, following the $40,000 payment referred to in para 8.
The applicant mother, Marilena Rus, shall pay $17,000 as her share of their daughters’ s. 7 undergraduate university expenses. Marilena Rus shall make four annual payments of $4,250 to I.R. commencing on September 1, 2022 to September 1, 2025.
Following payment of the lump sum s. 7 payment referred to herein, the remaining funds held by the court as security for the respondent's, Vasile Ovidiu Rus’, spousal and child support obligations, shall be released to the respondent, Vasile Ovidiu Rus.
Either party may seek to review spousal support, quantum and tax treatment based on any material change in circumstances whether currently anticipated or not.
Costs
[59] The respondent seeks the total costs in the amount of $21,692.67 on a partial indemnity basis, $28,845.68 on a substantial indemnity basis, and $36,030.50 on a full recovery basis. He also seeks costs in the amount of $5,909.99 paid to the previous counsel. The break down for fees, HST and disbursements for each appearance is as follows:
| Date | Issue | Partial | Substantial | Full |
|---|---|---|---|---|
| November 2, 2021 | Motion to change | $10,049.09 | $13,361.12 | $16,684.45 |
| February 3, 2022 | To determine release of funds and education | $5,435.30 | $7,232.00 | $9,028.70 |
| April 25, 2022 | Motion to set aside order | $2,878.11 | $3,837.48 | $4,796.85 |
| June 16, 2022 | Motion to impose lump sum and release funds | $3,330.17 | $4,415.08 | $5,520.05 |
| Total | $21,692.67 | $28,845.68 | $36,030.05 |
[60] The respondent submits that he has been substantially successful on the motion and that the applicant’s conduct has been unreasonable and resulted in unnecessary expense.
[61] The applicant submits that the court should order no costs. The applicant rightfully did not trust the respondent because he changes his mind and does not follow through with the offers that he made.
Applicable Legal Principles
[62] In Mattina v. Mattina, 2018 ONCA 867, the Court of Appeal confirmed that modern costs rules are designed to foster: i) partial indemnification of the cost of litigation for the successful litigants; ii) encouragement of settlement between parties; and iii) deterrence and sanctioning of inappropriate behavior by litigants. The Court also held that costs must be reasonable and proportionate.
[63] Rule 24(1) creates a presumption that the successful party in the proceeding is entitled to costs.
[64] The presumption that the successful party is entitled to costs does not mean that the successful party is entitled to whatever costs were incurred. The court, in assessing costs is still required to consider all relevant factors, including the factors set out in Rules 24(12), 24(4), 24(8) and Rule 18(14) in determining the appropriate award of costs.
[65] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:
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.
[66] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g., where a party has behaved unreasonably, in bad faith or has beat an offer to settle under Rule 18(14).
[67] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably. It states:
Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.
[68] Rule 24(5) provides guidance on how to evaluate reasonableness:
In deciding whether a party has behaved reasonably or unreasonably, 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.
[69] Rule 24(8) discusses the cost consequences for a party who has acted in bad faith:
If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
[70] The overall objective in determining costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case: see Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
Analysis
[71] There were four appearances in this motion that must be considered in assessing who was successful and what scale of costs is appropriate.
First Appearance
[72] On the first and most significant part of the motion the respondent was the successful party. The amount of spousal and child support reduced to reflect his current income. In addition, to the present counsel’s fees, there was a previous lawyer who billed $5,909.99 for work done February to June 2021 to try and have the applicant agree to change the amount payable.
[73] Awarding full indemnity costs against the applicant is not appropriate. I do not find the applicant acted in bad faith. Her acted unreasonable in refusing to adjust the respondent’s support payments based on his actual income. The respondent was a T4 employee which showed his income. There was no issue that he was hiding income or attempting to be underemployed. The applicant unreasonably and steadfastly did not want to change the support payments despite the clear change in the respondent’s income. This warrants costs on a substantial indemnity basis for the portion of the motion that dealt with these issues.
Second appearance
[74] This appearance was necessary so that the court could determine how much the father had actually overpaid which was relevant to the release of the funds which the mother was still opposed to. Ultimately, on the second appearance, the parties worked out a consent agreement on the day of the hearing for a lump sum spousal support agreement and how to deal with the daughter’s s. 7 expenses. Although the parties came to an agreement on that date, I am of the view that the applicant’s conduct in not agreeing to release the funds held by the court was unreasonable and necessitated the further court appearance and therefore the respondent is entitled to costs for that appearance on a partial indemnity basis.
Third appearance
[75] With respect to the third appearance, where the respondent brought a motion to vary the consent agreement, I do not find that the applicant acted unreasonably in refusing to consent to the modified agreement which changed the tax consequences for the applicant. The applicant sought to enforce the original agreement. Neither party was successful because I set the order aside. No costs should be awarded for this appearance.
Fourth appearance
[76] Finally, the respondent was not successful on the June 16, 2022 appearance in having the court order the lump sum spousal support payment. This was the focus of the motion. The respondent was successful in having the money held by the court returned to him, but by the time of the motion the applicant did not oppose that nor did the applicant oppose how to deal with the daughter’s s. 7 expenses. There was divided success on this appearance, and I am of the view that therefore no costs should be ordered for that appearance.
[77] As a result, the respondent is entitled to costs for the September 21, 2021 appearance on a substantial indemnity basis and for the February 3, 2021 appearance on a partial indemnity basis.
[78] Turning to the quantum of costs. I have reviewed the bill of costs for the two appearances, the hourly rate charged is reasonable given counsel’s year of call. The time spent was also reasonable trying to resolve the issue of reducing support payments outside of court and in preparing for the February hearing date.
[79] I have also reviewed the bill of costs for the former lawyer. The hourly rate charged is reasonable. The bill includes costs to deal with staying FRO enforcement. The applicant submits that she should not have to pay costs for that because she was not a party to those proceedings. I disagree. It was the applicant’s unreasonable behaviour in refusing to agree to a lessor support that caused FRO to act. The respondent has overpaid $63,683 to FRO. He should not have had to respond to this motion. The respondent only incurred this cost because of the applicant’s unreasonable behaviour.
[80] I am satisfied that it fair and proportionate to award costs to the respondent for the work done by the previous lawyer in the amount of $5,000 inclusive of HST. I am also satisfied that costs of $13,500 inclusive of HST should be awarded to the respondent for the September 21, 2021 appearance. I am also satisfied that it is appropriate to award costs to the respondent in the amount of $5,000 for the February 2022 appearance.
[81] The applicant is ordered to pay the respondent $23,500 within 60 days of receipt of this endorsement. The order is subject to 3% interest annually.
Dennison J.
Released: September 2, 2022
COURT FILE NO.: FS-18-00091843-00
DATE: 2022 09 02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARILENA RUS
Applicant
- and –
VASILE OVIDIU RUS
Respondent
MOTION TO CHANGE JUDGMENT
Dennison J.
Released: September 2, 2022