“The trial judge, at para. 21, quoted above, referenced three decisions of this court: Drygala v. Pauli, 2003 CanLII 48241 (ON CA), [2003] O.J. No. 3, 167 O.A.C. 274; Wildman v. Wildman (2006), 2006 CanLII 33540 (ON CA), 82 O.R. (3d) 401, 215 O.A.C. 239; and Writer v. Peroff, [2006] O.J. No. 4567 (S.C.), aff’d [2006] O.J. No. 4061. In each of these cases, this court upheld a trial judge’s discretionary decision to order costs awarded in a matrimonial proceeding enforceable by the FRO as support. Indeed, in Drygala, at para. 16, the validity of an order making a costs award at trial enforceable in its entirety by the FRO was specifically affirmed.
However, the validity of an FRO enforcement order per se is not challenged in this case. There can be no tenable suggestion, and Gregory does not argue, that the courts lack jurisdiction to direct that costs awarded in a matrimonial proceeding be enforceable as support or maintenance by the FRO. The Act provides otherwise.
The critical question is whether the FRO enforcement mechanism can be triggered by characterizing the costs of a matrimonial proceeding as referable to lump sum spousal support where no claim for spousal support was advanced or adjudicated upon at trial. None of the cases cited by the trial judge supports that proposition. To the contrary, in each of Drygala, Wildman and Writer, child and/or spousal support, among other matters, was in issue at trial. And, in each of these cases, the costs of the underlying proceeding and of the appeal before this court were ordered enforceable by the FRO as support.
Nor do any of the appellate-level cases relied upon by Georgia stand for this proposition. For example, Sordi v. Sordi, 2010 ONSC 6236 (CanLII), aff’d 2011 ONCA 665 (CanLII), [2011] O.J. No. 4681, cited by Georgia, provides no authority for the approach employed by the trial judge. In Sordi, this court upheld a trial judge’s order that part of the costs awarded at a matrimonial trial should be enforceable by the FRO as support. However, the issues at trial included claims for child and spousal support, thus linking the costs award to support.
The relevant authorities, including those mentioned above, confirm that a trial judge’s allocation of costs as relating to support or maintenance for FRO enforcement purposes attracts considerable deference from a reviewing court. That said, in those authorities cited above where costs were designated enforceable by the FRO as “spousal support”, the costs were incurred in a proceeding in which spousal support was implicated.
I therefore conclude that the trial judge erred in this case by characterizing his costs award as lump sum spousal support for the purpose of invoking enforcement of the award by the FRO. For the reasons given, this characterization of Georgia’s costs award cannot stand.”