



COURT OF APPEAL FOR ONTARIO

CITATION: Berta v. Berta, 2019 ONCA 218

DATE: 20190319

DOCKET: C65727

van Rensburg, Benotto and Harvison Young JJ.A.

BETWEEN

Delia Joan Berta

Applicant
(Respondent in Appeal)

and

Raymond Louis Berta

Respondent
(Appellant)

Peter M. Callahan, for the
    appellant

Michael Zalev and Aaron
    Franks, for the respondent

Heard and released orally: March
    11, 2019

On
    appeal from the order of Justice Michael Gibson of the Superior Court of
    Justice, dated July 17, 2018.

REASONS FOR
    DECISION

[1]

The parties have been involved in matrimonial
    litigation since their separation nine years ago. This is the third time they
    have been to this court. Indeed, the bulk of the accumulated spousal support
    arises out of this courts order of November 2017.

[2]

The issue in this appeal is whether the motion
    judge erred by setting off costs and interest of $331,533.54 owed by the wife
    to the husband against accumulated spousal support and costs of $479,130.91
    owed by the husband to the wife. In the result, the husband owes the wife
    $147,597.37.

[3]

The husband appeals arguing that the motion
    judge erred by allowing the wife to amend her notice of motion to request the
    set off, then further erred in granting the set off because set off is not
    available in law and usurps the jurisdiction of the Family Responsibility
    Office (FRO).

[4]

We do not accept these submissions.

[5]

The motion judge did not err by allowing the
    amendment. The Family Law Rules require the court to ensure that cases are
    dealt with fairly by saving expense and time, dealing with the case in ways
    that are appropriate to its importance and complexity and by giving appropriate
    resources to the case while taking account of the need to give resources to
    other cases. The amendment was appropriately allowed.

[6]

Nor do we agree that set off was unavailable.
    The motion judge correctly referred to s. 111 of the
Courts of
    Justice Act
. While the Director of the FRO has the duty
    to enforce support orders, nothing in the
Family Responsibility
    Enforcement Act
limits the courts jurisdiction to order
    set off. Finally, to allow the husband to pursue a claim against the wife when
    he is significantly in debt to her would be highly unjust.

[7]

The appeal is dismissed with costs in the amount
    of $17,000 all-inclusive payable to the respondent out of the funds paid into
    court as security for costs.

K.
    van Rensburg J.A.

M.L.
    Benotto J.A.

A.
    Harvison Young


