Designating costs order as “support” could mean that child or spousal support otherwise payable would be reduced

Parties married in 1993, had three children, and separated in 2010. Mother brought application for variation of child and spousal support. Application was granted in part. Husband sought his costs on full recovery basis in amount of $669,000.00. Husband was entitled to costs, fixed at $500,000.00, inclusive of HST and disbursements, less set off against $23,582.00 in support, for total of $476,418.00. Wife was not entirely unsuccessful but husband was clearly successful on virtually all key issues. Counsel and expert’s fee were reasonable in circumstances. Husband obtained result at trial that was more favourable than terms of offer he made early in litigation. Husband was entitled to costs somewhere between partial indemnity and full recovery. Wife did not act in bad faith but she did act unreasonably by failing to address issues outside of court, by making unreasonable offers to settle, continuing to seek relief already found to be unreasonable and without merit, and persisting in allegations of fraud. Husband’s costs were not disproportionate, excessive or unreasonable. Issues in proceeding were numerous, important and legally complex. Husband did not devote excessive legal resources to litigation. Given extremely high costs awarded against wife in prior litigation with husband she should not have been surprised by costs claimed. Wife chose to raise numerous serious allegations which were ultimately determined to be unfounded but now wanted to complain about resources that were found necessary to rebut claims. Offer would not have settled primary issue, determination of husband’s income for support purposes. Given wife’s financial circumstances it was exceptional case in which it was appropriate to exercise discretion contemplated by Rule 18(14) and not order full recovery costs despite husband’s offer. It was not appropriate case in which to order that costs be made enforceable as support pursuant to s. 1(1)(g) of Family Responsibility and Support Arrears Enforcement Act (FRSAEA) as there was no order relating to paying husband support. Designating costs order in favour of husband as “support” could mean that Director of FRO would be required to reduce child or spousal support otherwise payable to wife would be at odds with overall statutory purpose of FRSAEA. Wife had already paid significant amounts of costs since separation and divorce and there was no evidence she would not pay these costs.

Fielding v. Fielding (2019), 2019 CarswellOnt 1500, 2019 ONSC 833, P.J. Monahan J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 15895, 2018 ONSC 5659, P.J. Monahan J. (Ont. S.C.J.).