Court File and Parties
COURT FILE NO.: FS-16-20913-0000 DATE: 20230427 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: JUE YAN Applicant – and – WEI XU Respondent
Counsel: Aristoteli Lebebev, lawyer for the Applicant Joseph Paradiso, lawyer for the Respondent
HEARD: Written Submissions
Endorsement
DIAMOND J.:
[1] Further to the release of my Endorsement dated April 17, 2023, I have now received written submissions from both parties with respect to the two remaining issues, namely (a) the effect of the respondent’s increased child support paid pursuant to my Endorsement dated November 24, 2022 (“November Endorsement”), and (b) the costs of the motions decided in my Reasons for Decision dated February 27, 2023 (“Reasons”).
[2] I will now address each issue in turn.
A) The Effect of the Respondent’s Increased Child Support
[3] In my November Endorsement, and while the parties’ motions were still outstanding, I made the following order:
On an interim basis, and without prejudice to both parties’ rights and interests in this proceeding including the validity and enforceability of the Chinese Judgment, the respondent shall pay to the applicant child support in the amount of $1,839.00 for the two children of the marriage, commencing on December 1, 2022 and continuing on the first of each month pending further court Order or agreement between the parties.
All payments of interim, without prejudice child support from the respondent set out above shall act as a credit towards any judgment obtained in this action, whether a judgment recognizing and enforcing the Chinese Judgment or a judgment ordering other child support in accordance with the Ontario Child Support Guidelines.
[4] In accordance with my Reasons, the Chinese Judgments were recognized and enforced as Ontario Judgments. The child support payable under the Chinese Judgments amounts to approximately $676.00 (CAD) per month for the two children of the marriage.
[5] Pursuant to my November Endorsement, the respondent made three monthly payments of $1,839.00 from December 1, 2022 to February 1, 2023.
[6] In my view, the equitable result is effectively set out in the applicant’s submissions. Using the above numbers, the respondent has overpaid the sum of $3,489.00 to the applicant. This amounts to approximately five months’ worth of child support under the terms of the Chinese Judgments. The respondent is owed a credit for those five months. Indeed, the applicant in her submissions stated the following:
If the father, and the court, are fine with this, the father could resume child support based on the Chinese orders in August in Canada, preferably through FRO.
[7] Presumably, the respondent began paying child support through the Chinese Judgments on March 1, 2023. As stated, he is entitled to a five month credit. The respondent takes the position that he pause all payments under the Chinese Judgments (now recognized as Ontario Judgments to be formalized by way of formal order) for five months, and restart payment pursuant to the Chinese Judgments after the five month period expires.
[8] As the payments are for child support, I am not prepared to allow a situation where the children of the marriage receive no child support for a specific period of time. I am instead ordering the respondent to spread the $3,489.00 overpayment as an equal monthly credit over the balance of the 2023 calendar year (ie. the next 8 months starting May 1, 2023) so that the respondent receives a monthly credit of $436.13 for the next 8 months against his child support obligations under the Chinese judgments.
[9] With respect to the applicant’s request that those upcoming payments be made through the Family Responsibility Office (“FRO”), to my recollection and review, this issue was not before the Court at the return of the motions, but if the parties consent to having future child support payments made to and enforced (if necessary) by FRO, they may include such a term in the draft order that I will be signing.
B) The Costs of the Motions
[10] The respondent, who was successful on his motion for summary judgment, seeks his costs of both motions on a substantial indemnity basis in the all-inclusive amount of $127,791.53, and on a partial indemnity basis in the all-inclusive amount of $84,252.35.
[11] The respondent relies upon four separate offers to settle served upon the applicant in support of his request that costs be fixed on a substantial indemnity basis. I have reviewed those offers to settle. The only offer which was active as at the date of the ultimate hearing before me was an offer to settle dated November 23, 2022. In my view, while that offer (and all the respondent’s offers to settle) are factors to be considered in the disposition of costs, the terms of the respondent’s November 23, 2022 offer to settle were essentially akin to asking the applicant to capitulate, and there was very little, if any, element of compromise in that offer that a term required by the governing jurisprudence in order to invoke the costs consequences of Rule 18(14) of the Family Law Rules. As such, any costs to be awarded to the respondent are to be fixed on a partial indemnity basis.
[12] As the parties know, this matter came before me on several prior occasions, resulting in adjournments leading up to the ultimate hearing on February 2, 2023. In my view, a significant portion of the reasons behind those adjournments lays at the feet of the respondent. It was the Court that informed the respondent that his motion was originally misguided and mischaracterized, and that he would need to reconstitute his motion as a motion for summary judgment in order to properly respond to the applicant’s motion for interim support. In addition, another adjournment was necessitated by the fact that the respondent did not proffer expert evidence to prove the relevant Chinese law dealing with the family legal system.
[13] There is an additional factor relevant to this Court’s disposition of the costs of these motions. While the respondent was the successful party, I do not find the applicant to have acted unreasonably in pursuing interim support and resisting the respondent’s (eventual) motion for summary judgment. The issue to be decided on the respondent’s motion for summary judgment was novel. As held by Justice Spence in Baldwin v. Daubney:
For an issue to be novel in a way that is legally significant, it might be argued that the issue should not only be one which has not been decided in the factual context in which it now arises in the instant case, but is also one on which the law in the decided cases does [not] provide adequate guidance as to its resolution (whether that is so because of conflicts among the cases or a limitation of the appropriate scope of their application or some other factor). Such an issue could properly be regarded as ‘open’.
[14] While there was relevant jurisprudence from British Columbia, the issue argued before this Court had never been addressed in Ontario, and for that reason I find that the applicant was justified in opposing the respondent’s motion for summary judgment.
[15] In Serra v. Serra 2009 ONCA 3959, the Court of Appeal for Ontario held that modern costs rules are designed to foster three fundamental purposes:
(a) to partially indemnify successful litigants for the cost of litigation;
(b) to encourage settlement; and
(c) to discourage and sanction inappropriate behaviour by litigants.
[16] As held by Justice Sherr in Oduwole v. Mosses 2016 ONCJ 653, a costs award should always reflect what the Court used to be a fair and reasonable amount to be paid to the successful party.
[17] Mindful of my obligation to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of a successful party with the overall goal of fostering access to justice, I find that the respondent is entitled to a reduced portion of his costs of the motions on a partial indemnity basis. An appropriate result is to order the applicant to pay the respondent his costs of the motions fixed in the all-inclusive amount of $20,000.00 and payable forthwith.
[18] Order accordingly.
Diamond J.
Released: April 27, 2023