COURT FILE NO.: FS 12-3039 DATE: 2024/06/12 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CORINNE ELIZABETH MICHELLE RUTLEDGE Applicant – and – JASON RICHARD TAILLEFER Respondent

Counsel: Samantha Prescott, for the Applicant William Abbott and Aria MacEachern, for the Respondent

HEARD: April 12, 2024

REASONS FOR DECISION Ellies J.

BACKGROUND

BACKGROUND

1In January 2022, Mr. Taillefer brought a motion under r. 31 of the Family Law Rules, O. Reg. 114/99 (the “Rules”), for a finding that Ms. Rutledge was in contempt of court orders made in 2013, 2021, and 2022. In April 2022, he also brought a motion under r. 1(8) of the Rules that Ms. Rutledge was in breach of those same orders.

2For reasons released on January 19, 2023, I dismissed the contempt motion, but found that Ms. Rutledge was in breach of all three orders as they related to decision making and parenting time with the parties’ son, P. I ordered that the question of the appropriate remedy would proceed to a further hearing: Rutledge v. Taillefer, 2023 ONSC 471.

3For reasons released on June 29, 2023, I declined Mr. Taillefer’s request for an order reversing the existing parenting regime by placing P. with Mr. Taillefer and denying Ms. Rutledge any contact with P. for 90 days: Rutledge v. Taillefer, 2023 ONSC 3883. However, I ordered that Ms. Rutledge pay costs for the motions in the amount of $34,800. Relying on the decision in Clark v. Clark, 2014 ONCA 175, I disagreed with a submission made on Mr. Taillefer’s behalf that those costs could be enforced as support under s. 1(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c.31 (the “Act”). However, in an endorsement dated June 30, 2023, I agreed to allow counsel for Mr. Taillefer a further opportunity to persuade me with respect to this issue because the order relating to the contempt and breach motions had not yet been taken out.

4The hearing relating to the enforceability of costs under the Act was adjourned first to allow Ms. Rutledge to prepare her own submissions and, after she retained counsel at the last minute, to allow her lawyer to do so. The hearing finally proceeded on the date set out above.

5These are my reasons for decision on the issue.

ISSUES AND ANALYSIS

ISSUES AND ANALYSIS

6The Act provides for the enforcement of support orders using means beyond those available to enforce orders for the payment of money in purely civil proceedings and gives support orders priority over such orders. Section 1(1) of the Act defines a support order as follows:

1 (1) 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,

7On behalf of Ms. Rutledge, Ms. Prescott makes a procedural argument that I believe should be dealt with before turning to the substantive arguments. She submits that Mr. Taillefer should not be allowed to raise the applicability of the Act because he never sought that relief in any notice of motion.

8I am unable to accept this argument. While it is true that neither the contempt nor the breach motion sought an order that costs be enforced as support, they did seek costs. Where costs clearly do relate to support, there is no requirement of which I am aware, nor was I referred to any by counsel for Ms. Rutledge, that the party to whom costs are awarded must plead the Act in order to claim the benefit of it.

9Perhaps more importantly, Ms. Rutledge has had ample notice and plenty of time to respond to Mr. Taillefer’s position. The primary objective of the Rules is to deal with cases justly. Ms. Rutledge will not be treated unjustly by dealing with the issue in these circumstances.

10I turn now to the substantive arguments.

11On behalf of Mr. Taillefer, Mr. Abbott makes three submissions.

12First, he submits that, contrary to my earlier belief, the decision in Clark does not prevent me from ordering that the costs in this case be enforced as support under the Act. In Clark, the trial judge ordered that the costs payable by the unsuccessful husband in a matrimonial proceeding be paid as lump sum spousal support and be enforceable by the Family Responsibility Office under the Act. The Court of Appeal held that the trial judge had no authority to characterize the costs as spousal support in that case because spousal support was “neither claimed nor adjudicated upon in the relevant proceeding”: Clark, at para. 68. However, because the issue of child support was clearly before the trial judge, the Court of Appeal amended the judge’s order to delete the word “spousal” such that the costs award related to support and, therefore, was enforceable under the Act.

13Mr. Abbott submits that child support was also an issue before me in these motions. He relies on the fact that the order for child support made in 2013 was based on a set-off, given the week-about parenting time schedule contained in that order. He submits that, had Mr. Taillefer been successful in his efforts to reverse the parenting-time schedule eventually ordered in 2022, the 2013 child support would necessarily have had to be varied, as well.

14I am unable to accept this argument.

15Neither the notice in the contempt motion nor the notice in the breach motion made any mention whatsoever of the issue of child support. Nor was that issue raised during the hearing of either motion. This was not likely an oversight on the part of counsel for Mr. Taillefer because the issue of child support was raised in the context of his 2019 motion to change, which as I pointed out in my January 2023 reasons, remained then and still remains outstanding. Had Mr. Taillefer been successful in the contempt or breach motions at varying the parenting-time schedule, I would have expected his counsel then to rely on that change in support of the request made by Mr. Taillefer in his Motion to Change to reduce child support to nil.

16This brings me to Mr. Abbott’s second submission.

17Mr. Abbott submits that the Court of Appeal in Clark held that costs could be enforced as support even in a motion in which support itself was not an issue, provided support is claimed in the underlying proceeding. He highlights Mr. Taillefer’s request in his 2019 Motion to Change that the 2013 and 2015 orders be varied to stay the payment of child support and s. 7 expenses until Mr. Taillefer had paid off debt he accumulated on Ms. Rutledge’s behalf, and that arrears of both child support and s. 7 expenses be set at nil. Also relevant to this argument is the fact that, in her response to the motion to change, Ms. Rutledge sought to increase child support and also sought increased s. 7 expenses. Thus, child support clearly is an issue in the underlying motion to change.

18Again, however, I am unable to accept this argument. My reasons are two-fold.

19First, I do not read the decision in Clark as authority for the proposition that costs may be characterized as support in one proceeding so long as that proceeding is connected to another in which support is sought. In Clark, writing on behalf of the court, Cronk J.A. wrote, at para. 68:

I do not read the cases cited by the trial judge as providing authority for characterizing costs awarded in a matrimonial proceeding as relating to spousal support when spousal support was neither claimed nor adjudicated upon in the relevant proceeding. [Emphasis added.]

20As I interpret these words, to be enforceable as support, the costs order in question must have been made in connection with the proceeding in which support was an issue adjudicated upon. It is not enough that support is claimed in another proceeding, even a related one.

21There is no issue in this case that support was not adjudicated upon in either the contempt or the breach motion. Therefore, under Clark, the costs award cannot be characterized as support.

22In his final submission, Mr. Abbott relies on the broad discretion of the court to remedy breaches under r. 1(8) and argues that Clark was overruled by the Court of Appeal’s more recent decision in Bouchard v. Sgovio, 2021 ONCA 709.

23In Clark, Cronk J.A. wrote, at para. 67:

The broad discretion to order costs conferred by rule 1(8) is concerned with the entitlement to and the quantum of costs. As I read rule 1(8), it does not extend to characterizing the nature of costs awarded in a manner that is at odds with the substance of the proceeding in which the costs are awarded.

24Mr. Abbott submits that this aspect of Clark was overruled in Bouchard. In Bouchard, the mother moved for an order that the father was breaching a shared parenting-time order and alienating one of their children as a result. Among other things, the motion judge ordered that the children be enrolled in a program to reverse the effect of parental alienation, that the mother be given sole parenting time during the duration of the program, and that the father be restrained from having contact or communicating with the children for a minimum of 90 days. In making her order, the motion judge relied on the r. 1(8), which provides:

If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

25The father appealed the motion judge’s order, arguing that the motion judge had no jurisdiction under r. 1(8) to vary the parenting time order or to order the enrollment of the children in therapy.

26On behalf of the majority of the Court of Appeal, Paciocco J.A. disagreed. He held that, with the possible exception of certain remedies such as that provided for under r. 31(5) of the Rules regarding contempt, the scope of the remedies permitted under r.1(8) is limited only by the nature of the breach of the order in question. At paragraphs 49 and 51 he wrote:

As long as the judge is satisfied that there has been a failure to obey an order ‘in a case or a related case’ subrule 1(8) is triggered and the relief provided for therein can be ordered: Hughes v. Hughes, (2007), 85 O.R. (3d) 505, at para. 17 (Ont. S.C.J.). Although r. 1(8) provides an itemized list of forms of relief that are available, that list is inclusive, not exclusive: Mullin v. Sherlock, 2018 ONCA 1063, at para. 46; Children’s Aid Society of Haldimand and Norfolk v. J.H. and M.H., 2020 ONSC 2208, at para. 126. The reach of the remedial orders that can be made is governed not by the itemized list in that rule, but by the general and broad language of the chapeau that precedes it, which provides that “the court may deal with the failure by making any order that it considers necessary for a just determination of the matter”.

Such broad and purposeful applications of r. 1(8) are sensible. The relevant substantive right is created by the order that is being enforced, while r. 1(8) serves to provide the means of enforcement so that those substantive rights may be realized. The rule therefore provides broad discretion to courts to make orders it considers necessary to fully address a party’s failure to comply, a flexibility that is of particular importance when the orders address the well-being of children: Children’s Aid Society of Haldimand and Norfolk v. J.H. and M.H., at para. 127. Stated simply, if the remedy ordered addresses or “[deals] with the failure” to comply with the substantive order and the remedy ordered is found to be necessary to achieve the enforcement of the order being breached, that remedy is prima facie authorized by r. 1(8).

27On behalf of Mr. Taillefer, Mr. Abbott submits that the majority decision in Bouchard overruled the decision in Clark as it relates to r. 1(8) and permits the court to use the rule to characterize the costs award in these motions as costs in relation to support.

28Once again, I am unable to accept this submission.

29Although I now accept that rule 1(8) does not restrict the court to fashioning only procedural remedies, I do not accept the submission that the decision in Bouchard altered the decision Clark as it relates to the characterization of costs as support. [1] While the majority in Bouchard did hold that the preamble to r. 1(8) is broad enough to permit the court to make any order, it still restricted that order to what is necessary to remedy the breach. It cannot be said in this case that my costs award was fashioned as a remedy for Ms. Rutledge’s breaches. It was not, for example, akin to an order that she pay for therapy to reverse the effects of her breaches on P., a remedy I specifically refused to order.

30Moreover, the Court of Appeal in Bouchard did not hold that r. 1(8) permits a court to ignore the clear words of a statute or to base a decision on facts that clearly do not exist.

1As I indicated in an endorsement dated September 8, 2023, I discovered the Bouchard decision after releasing my reasons of June 29, 2023, although it had been cited by Mr. Abbott in his written submissions on the issue of remedy. However, while I did express some doubt about my ability to make an order reversing parenting time in my reasons of June 29, 2023, I also explained that, even if I could make such an order I would not in the circumstances of this case.

CONCLUSION

CONCLUSION

31For the foregoing reasons, I conclude that I am unable to characterize the costs award of the breach and contempt motions as costs relating to support. Mr. Taillefer’s request that I do so, therefore, is dismissed.

COSTS

COSTS

32That leaves the issue of the costs relating to the issue of the enforceability of costs under the Act. On behalf of Ms. Rutledge, Ms. Prescott submits that her client should be entitled to full indemnity costs. I do not accept that submission. For the following reasons, I conclude that no costs order should be made.

33As I set out earlier, the issue of the enforceability of costs as support was adjourned on two occasions at the request of Ms. Rutledge. The first was on September 8, 2023. On that date, I heard submissions on behalf of Mr. Taillefer on the issue. Ms. Rutledge was not prepared to make submissions on her own behalf and, therefore, I granted her an adjournment. The matter was then set to proceed on December 8, 2023. However, about one week before that date, the court received word from Ms. Prescott that she would be requesting an adjournment to allow her to prepare. I granted the adjournment request over the objections of counsel for Mr. Taillefer. I assessed the costs of the day's appearance at $400, payable at my discretion, and ordered that Ms. Rutledge deliver affidavit evidence to explain why it had taken her so long to retain counsel.

34Ms. Rutledge delivered an affidavit dated January 10, 2024, in which she set out her efforts to retain counsel. I accept that she had a difficult time finding counsel once she began trying to do so. However, in my view, she did not try to do so early enough. The first meeting she had with a lawyer was on September 28, 2023, even though she knew as early as June 30, 2023, that Mr. Taillefer was pursuing this issue. No explanation has been offered for the delay.

35For that reason, I would be inclined to order that Ms. Rutledge pay the $400 in costs. However, those costs would be about the same amount I would be inclined to award Ms. Rutledge in connection with the hearing of April 12, 2024, based on her success on this narrow issue.

36In these circumstances, I decline to make any costs award beyond the award that I made on June 29, 2023.

M.G. Ellies J.