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In family law cases, costs are generally awarded to the successful party at trial and are governed by Rule 24 of the Ontario Family Law Rules. In the recent matter of Sroor-Hernandez v. Gutierrez-Aguirre, Johnson Miller Family Lawyers represented a client in a contested family law matter focused on the entitlement, quantum and duration of her spousal support. Aside from the issue of spousal support, the Court’s decision provided insight into costs in family law litigation and illustrated how a litigant’s misconduct can negatively impact their entitlement to costs.
Spousal Support Entitlement, Quantum, and Duration Key Issues at Trial
In Sroor-Hernandez v. Gutierrez-Aguirre, the applicant (the wife) married the respondent (the husband) in Mexico on July 5, 2000, and had one child together. They separated on July 31, 2014, but continued to reside in the matrimonial home while living separate and apart until October 1, 2016, at which point the wife moved out of the house. The parties were divorced on September 21, 2018. At the time of trial, the child primarily resided in the husband’s care.
When the matter came before the Court, the wife’s original proceeding contained claims for spousal support and an equalization payment. However, the equalization payment was not pursued at trial. It was also acknowledged that the wife was obliged to pay child support. Thus, the critical issues at trial centred around entitlement, quantum, and duration of spousal support payable to the wife.
Family Had Multiple Moves Between America, Mexico and Canada
At trial, the Court accepted that the parties discussed moving to Michigan when an employment opportunity became available for the husband, while their ultimate goal was to move to Canada. Despite working in various computer-related positions before the parties’ marriage, the wife was not employed when they got married. While in Michigan, the wife was not continuously employed, although the husband claimed there was an expectation that she would return to work eventually.
Following the birth of their daughter, the wife indicated that her responsibilities within the marriage were caring for her daughter and running the home. However, the husband denied there was an agreement for the wife to stay home with their daughter. Between 2002 and 2010, the family made multiple moves between the United States, Mexico and Canada. The wife acknowledged receiving an authorization card that permitted her to work from November 2009 until May 2011 while the family was in Michigan. In 2010, the family moved to Windsor, Ontario. The husband purchased a residence with a housing allowance benefit available to him through his employer, and the legal title of the home was in his name alone.
Husband Stops Paying Spousal Support Contrary to Court Order
The husband stated that after the parties separated in 2014, he continued paying for all expenses related to maintaining the family home without any financial contribution from the wife. The wife explained she bought food for herself and occasionally for their daughter but kept all her remaining income. The wife moved into her own apartment in 2016, and the spouses had alternate weeks with their daughter.
The wife commenced these court proceedings on April 29, 2016. A temporary order was made by Justice King on March 8, 2017, which provided that, among other things, the husband was to pay spousal support to the wife, on a without prejudice basis, in the amount of $1,841 per month.
The wife moved in with her boyfriend in August 2018. On January 14, 2022, Justice King made a temporary order providing that, among other things, the husband was to pay spousal support in the mid-range amount of $1,868 per month, based on his income, on an “interim without prejudice basis.” In April 2022, the husband stopped paying all spousal support, contrary to the existing order.
Spousal Support “Appropriately Positioned in Mid-Level Range”
Turning to the issue of prospective spousal support, the wife claimed the husband should pay support at the mid-range level of $2,287 per month for an unspecified duration, subject to variation in the event of a material change of circumstances. On the other hand, the husband argued that his obligation to pay spousal support should cease effective September 30, 2022.
The Court referred to section 15.2 of the Divorce Act, which authorizes the Court to make an order for spousal support. The Court noted the wife made claims for compensatory and non-compensatory support. Acknowledging the family had lived in “five locations, in three different countries, to allow the respondent husband to pursue his career,” the Court found “some economic disadvantage arising out of the marriage.” The Court also explained that a spouse’s re-partnering does not automatically cancel that spouse’s entitlement to spousal support, although it is one of many factors a court can consider in determining the amount and duration of support.
The Court was satisfied the support obligation was appropriately positioned in the mid-range level under the Spousal Support Advisory Guidelines at $2,287 per month. Concerning duration, the Court held that the eight years of support the wife received from the husband (as of September 30, 2024) was enough to provide her with a “launching pad” to return to economic self-sufficiency.
Husband Deprived of Costs Due to Blameworthy Conduct
When addressing costs, the Court noted they must typically follow Rule 24(1) of the Family Law Rules, which states that “[t]here is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.” Although the husband was largely successful at trial and would ordinarily be entitled to costs, the Court ruled against awarding costs to him.
“Court Orders Are Not Suggestions”
The Court highlighted that the husband understood his obligations under the court order for spousal support. Nor was his non-compliance due to a lack of financial means, contrary to his suggestion that he “got behind on bills,” as the Court noted the only “bill” he decided not to pay was spousal support. Despite the husband’s counsel explaining that his client was “frustrated by the litigation process,” the Court held this provided “no excuse or justification for disobeying a court order.” Moreover, it was emphasized that “[c]ourt orders are not suggestions…recommendations or guidelines.”
Referencing the decision in Taylor v. Taylor, the Court reprimanded the husband’s conduct, stating:
“… [a] resentful spouse is not above the law. Where a party disagrees with an order, he may seek to appeal it. In some circumstances he may seek to vary it. But it is not an option to simply disregard the order.”
Deliberate Disregard for a Court Order Come With Consequences
In his decision, Justice Howard acknowledged summarized his decision on costs as follows:
“The decision of Mr. Gutierrez to simply disregard the orders of the court for interim spousal support is not something I am prepared to overlook. It requires sanction. Thus, while Mr. Gutierrez is clearly the successful party at trial, and would otherwise be entitled to payment of some portion of his costs of the proceeding by the applicant wife (which would be significant given that this proceeding has been ongoing since 2016), I would deprive him of his entitlement to costs.”
The Court went on to note that even if the husband had provided a settlement offer that was less favourable than the result he obtained at trial (which ordinarily would entitle him to a full recovery of his costs from the wife), the Court would still choose to deny him costs. The court explained this was because there are consequences for those who deliberately disregard court orders. As a result, no costs award was ultimately made.
Contact Johnson Miller Family Lawyers in Windsor for Trusted Advice on Divorce Litigation and Support Claims
At Johnson Miller Family Lawyers, our compassionate divorce lawyers understand the emotional and financial uncertainties of separation and divorce. Whether you are involved in initial divorce proceedings, seeking enforcement of an order, or looking to vary an existing court order, our family lawyers can help. To speak with a member of our team regarding your family law matter, call us at 519.973.1500 or contact us online to schedule a confidential consultation.
