Clark v. Clark, (2014) 318 O.A.C. 66 (CA)

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Cronk, Rouleau and Tulloch, JJ.A.
• Citation: (2014), 318 O.A.C. 66 (CA),2014 ONCA 175
• Date: 05 March 2014
• Subject Matter: FAMILY LAW,COURTS,PRACTICE

Clark v. Clark (2014), 318 O.A.C. 66 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. MR.028

Georgia Anne Clark (applicant/respondent in appeal) v. Gregory Lawrence Clark (respondent/appellant)

(M42120; M42106; M42981; C56511; 2014 ONCA 175)

Indexed As: Clark v. Clark

Ontario Court of Appeal

Cronk, Rouleau and Tulloch, JJ.A.

March 5, 2014.

Summary:

Spouses separated in 1997 after almost four years' marriage and two children. In 2002, a consent order provided for, inter alia, joint custody of the children (primary residence with wife), $20,000 for child support arrears, and no prospective child support by either spouse, other than extraordinary expenses on a pro rata basis. Between 2008 and 2011 there were numerous motions and amended motions to amend the consent order respecting child support and custody. Neither party ever advanced a spousal support claim.

The Ontario Superior Court, in a judgment reported [2012] O.T.C. Uned. 1965, ordered joint custody with no designated primary residence (consented to by the spouses). The only contentious issues were prospective and retroactive child support, extraordinary expenses under s. 7 of the Child Support Guidelines and the costs of a psychological assessment and counselling for the children. In February 2012, the judge dismissed the husband's claim for child support, ordered support paid on account of extraordinary expenses and ordered the husband to pay 50% of the costs of the psychological assessment and counselling fees. In March 2012, the wife was awarded costs totalling $185,000, which the judge characterized as "lump sum spousal support" enforceable by the Family Responsibility Office. In January 2013, 11 months after the trial judgment, the husband moved before a single appellate judge to extend the time to appeal the substantive parts of the judge's order and to apply for leave to appeal the costs order.

The Ontario Court of Appeal, per Doherty, J.A., in a judgment not reported in this series of reports, allowed the husband's motion to the limited extent of granting an extension of time to apply for leave to appeal the costs order. The husband was ordered to provide $25,000 in security for costs. The husband moved to review the chambers order of Doherty, J.A. He sought leave to appeal the costs order and an order validating the form of security for costs provided by him to comply with the January order. The wife moved to quash the costs order appeal on the ground that, inter alia, the form of security provided (second mortgage in her favour on the husband's parents' home) did not comply with the January order.

The Ontario Court of Appeal dismissed the husband's review motion and the wife's motion to quash the costs order appeal. The court granted the husband leave to appeal the costs order. The court allowed the costs appeal to the limited extent of striking the judge's characterization of the costs order as being enforceable as a lump sum spousal support order under the Family Responsibility and Support Arrears Enforcement Act. At no time in the protracted proceedings was spousal support ever claimed or in issue. It was an error to characterize costs as spousal support. The costs order was amended by substituting "support" for "lump sum spousal support".

Courts - Topic 7443

Provincial courts - Ontario - Court of Appeal - Review of decision of single judge - A February 2012 trial judgment dealt with issues of child support, including extraordinary expenses, and ordered the husband to pay 50% of the costs of the psychological assessment and counselling fees - In March 2012, the wife was awarded costs totalling $185,000, which the judge characterized as "lump sum spousal support" enforceable by the Family Responsibility Office - In January 2013, 11 months after the trial judgment, the husband moved before a single appellate judge to extend the time to appeal the substantive parts of the judge's order and to apply for leave to appeal the costs order - Doherty, J.A., extended the time to seek leave to appeal the costs order but denied an extension to appeal the substantive parts of the trial judgment - Respecting the substantive parts of the trial judgment, the husband did nothing to advance the appeal for more than six months after the limitation period expired - There was no explanation for the inordinate delay and no evidence of a bona fide intention to appeal - In any event, Doherty, J.A., found no merit to any of the grounds of appeal - The Ontario Court of Appeal dismissed the motion to review the order of Doherty, J.A. - Doherty, J.A., addressed and properly applied all of the relevant factors - Further, the court agreed that there was no merit in the appeal of the substantive parts of the trial judgment - See paragraphs 20 to 25.

Family Law - Topic 4175

Divorce - Corollary relief - Practice - Costs - General (incl. considerations) - [See Family Law - Topic 4182 ].

Family Law - Topic 4180

Divorce - Corollary relief - Practice - Costs - Enforcement of order for costs - In protracted family litigation involving child support and custody issues, the trial judge awarded the wife $185,000 in costs, which the judge ordered paid as "lump sum spousal support" enforceable under s. 1(1) of the Family Responsibility and Support Arrears Enforcement Act as a lump sum spousal support order - No spousal support was claimed at trial and none was awarded - The Ontario Court of Appeal held that where spousal support was not in issue, the trial judge erred in characterizing the costs awarded to the wife as lump sum spousal support for the purpose of triggering the enforcement provisions of the Act - The trial costs did not flow from, arise from or otherwise relate to a spousal support claim as required by the Act - A trial judge's wide discretion as to the entitlement to and quantum of costs did not permit the characterization of the costs as lump sum spousal support - However, where child support was a live issue at trial, the costs award remained enforceable as a "support order" under s. 1(1)(g) of the Act as "the payment of legal fees or other expenses arising in relation to support or maintenance" - The court accordingly deleted "lump sum spousal support" in the costs order and substituted "support" - See paragraphs 59 to 83.

Family Law - Topic 4182

Divorce - Corollary relief - Practice - Costs - Lump sum or fixed costs - A wife was successful in a 10 day trial respecting child support and custody - Her legal bill was over $236,000 - The trial judge awarded her costs of $185,000 - The husband appealed, alleging a denial of procedural fairness at the costs hearing where his counsel was removed as solicitor of record, forcing him to respond as a self-represented litigant - The Ontario Court of Appeal rejected the argument where counsel remained as a friend of the court and made submissions on the husband's behalf - The court held that the trial judge did not err in exercising his discretion as to entitlement to or the quantum of costs - The court stated that "The trial judge's costs analysis was thorough and considered. He took into account all relevant factors, including: the nature and facts of the case; the governing legal principles; the parties' submissions, conduct and offers to settle [wife offered to settle for less than she received at trial]; the bill of costs submitted by [the wife's] counsel, including the time spent, the rates charged and the number of involved counsel; the length of the trial; [the husband's] ability to pay costs; and the fairness and reasonableness of the costs claimed. The trial judge also properly treated [the wife's] success at trial and [the husband's] history of repeated non-compliance with court orders as relevant considerations in fixing an appropriate costs award" - See paragraphs 84 to 105.

Family Law - Topic 4188

Divorce - Corollary relief - Practice - Costs - Appeals from costs order - [See Family Law - Topic 4182 ].

Family Law - Topic 4189

Divorce - Corollary relief - Practice - Costs - Settlement offers - [See Family Law - Topic 4182 ].

Practice - Topic 8172

Costs - Security for costs - Order for payment - Form of security - A father was granted an extension of time to apply for leave to appeal a $185,000 costs order on the condition that he post $25,000 security for costs - The father did not pay the monies into court, nor did he post a $25,000 letter of credit - The security provided to comply with the condition was the husband's parents furnishing a second mortgage on their home in the amount of $25,000 in the wife's favour as second mortgagee - After the wife protested, the husband proposed that the second mortgage be refinanced and that the proceeds be used to pay $25,000 into court - The wife refused to consent to the proposed refinancing - The wife moved to quash the husband's costs order appeal on the ground that the husband failed to post security for costs in proper form - The Ontario Court of Appeal dismissed the motion - Security for costs should generally be in a form that was readily accessible to the party ultimately awarded costs - The security afforded by the second mortgage was neither immediately liquid nor readily accessible - Further, depending upon the value of the secured property and the amount of the first mortgage, a second mortgage might not afford reliable security for the costs at all - However, courts had a wide discretion as to the amount and form of security for costs - There was no requirement that security be in the form of payment into court or a letter of credit - The order requiring security did not specify the form of security required - The wife did not move to clarify and establish the form of security, nor did she consent to refinancing to provide for $25,000 to be paid into court - The court stated that "In these somewhat unusual circumstances, I do not think that it can reasonably be said that the security eventually provided by [the husband] fell short of satisfying a clear term of the [order requiring security]" - See paragraphs 34 to 49.

Practice - Topic 8862

Appeals - Quashing or dismissal of appeals - Grounds for - [See Practice - Topic 8172 ].

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - [See Courts - Topic 7443 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 28].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 58].

Drygala v. Pauli (2003), 167 O.A.C. 274 (C.A.), refd to. [para. 69].

Wildman v. Wildman (2006), 215 O.A.C. 239; 82 O.R.(3d) 401 (C.A.), refd to. [para. 69].

Writer v. Peroff, [2006] O.T.C. Uned. B90 (Sup. Ct.), affd. [2006] O.A.C. Uned. 473 (C.A.), refd to. [para. 69].

Sordi v. Sordi, [2010] O.T.C. Uned. 6236; 2010 ONSC 6236 (Sup. Ct.), affd. (2011), 283 O.A.C. 287; 2011 ONCA 665, refd to. [para. 72].

Boucher et al. v. Public Accountants Council (Ont.) et al. (2004), 188 O.A.C. 201; 72 O.R.(3d) 291 (C.A.), refd to. [para. 96].

Statutes Noticed:

Family Responsibility and Support Arrears Enforcement Act, S.O. 1996, c. 31, sect. 1(1)(g) [para. 61].

Counsel:

Harold J. Feldman, for the appellant;

William H. Abbott and Aaron M. Mastervick, for the respondent.

These motions were heard on October 17, 2013, before Cronk, Rouleau and Tulloch, JJ.A., of the Ontario Court of Appeal.

On March 5, 2014, Cronk, J.A., released the following judgment for the Court of Appeal.