





CITATION:
Sordi v. Sordi, 2011 ONCA 665



DATE: 20111025



DOCKET: C52450



COURT OF APPEAL FOR ONTARIO



MacPherson, LaForme and Epstein JJ.A.



BETWEEN



Joanne Clare Sordi



Applicant (Respondent in Appeal)



and



Cameron Sordi



Respondent (Appellant in Appeal)



Gary S. Joseph and Vanessa Lam, for the appellant



L. Jane Rutherford, for the respondent



Heard:
October 17, 2011



On appeal from judgment of Justice
          D. R. Timms of the Superior Court of Justice dated June 25, 2010 and the
          costs order dated November 12, 2010.



Epstein J.A.:

[1]

In July 2007,
a six‑year
    marriage between a successful dentist and his equally well-educated wife who
    stayed at home to raise their three sons, ended.

[2]

Their relationship, both during
    the marriage and since separation, has been dysfunctional.  With effort, they
    could have resolved the relatively straight-forward issues relevant to their
    separation.  This would have involved a certain degree of mutual understanding
    and acceptance of their own character traits that have prevented a successful
    marriage, in order to settle their differences with substantially less damage
    to each other, their children and their resources.

[3]

But, that did not
    happen. Intransigence and a lack of objectivity about themselves and each other
    led to a 25-day trial in which
virtually
    every conceivable issue relevant to the parties separation remained in
    dispute.  Fortunately, during trial they were able to resolve some matters
    relating to division of property and the appellant husbands income.

[4]

The primary issues left for the
    trial judge to determine were custody, access, spousal and child support and
    the appellants claim for damages based on malicious prosecution.

[5]

In a lengthy and detailed
    judgment, the trial judge granted sole custody of the boys to the respondent,
    child support in the monthly amount of $4,816 based on the appellants income
    of $300,000, and spousal support to be paid by the appellant in the monthly
    amount of $3,851 with a review to be undertaken as of October 12, 2012.  He
    dismissed the respondents claim for retroactive child and spousal support and
    the appellants claim for damages for malicious prosecution.  He also dealt
    with ancillary matters including ordering that the appellants dentistry
    corporation secure the support orders and equalization payment.

[6]

After receiving cost submissions,
    the trial judge awarded costs in favour of the respondent in the amount of
    $254,500, with $10,000 designated as a support order.

[7]

The appellant contests every
    aspect of the trial judges order that was not in his favour.  While many
    issues have therefore been raised in this appeal, the focus here, as it was
    before the trial judge, is the custody of the children and matters related to
    that decision; namely, child and spousal support.

[8]

In relation to the costs award,
    the appellant challenges the trial judges order making $10,000 of the costs
    award enforceable as spousal support. The same issue is raised in the
    respondents cross-appeal: she submits that the entirety of the costs award
    should be designated as support, and thus enforceable under
s. 1(1) of the
Family
    Responsibility and Support Enforcement Act
, S.O. 1996, c. 31.  The
    enforcement system established under that Act is commonly referred to as FRO.

Trial Fairness and the Custody Order

[9]

The mainstay of the appellants position is that he was denied a
    fair trial. The unfairness, argues the appellant, arises out of the cumulative
    effect of the trial judges refusal to admit evidence critical to the
    determination of custody, upon which so many other issues depend.

[10]

Specifically, the appellant
    submits that the trial judge
erred in
    refusing to admit audio tapes of recordings of conversations between himself,
    the respondent, and the children  tapes that he recorded without the
    respondents knowledge.  He also contends that the trial judge erred in
    refusing to admit a report by a social worker he hired to critique the
    court-ordered custody and access report.
Finally,
    the appellant contends that t
he trial
    judge erred in refusing to admit the reports and testimony of his psychologist
    who, on the basis of his counselling of the appellant and visits with the
    appellant and the boys, was in a position to assist the court as to the
    appellants fitness as a father.

[11]

In my view, there was nothing
    unfair or improper about the conduct of the trial.  Specifically, there is no
    reason to question the exercise of the trial judges discretion not to admit
    the proposed evidence about which the appellant complains.

[12]

With respect to the taped
    conversations, the trial judge relied on solid principles that took into
    account not only the sound public policy of trying to discourage the use of
    secretly recorded conversations in family proceedings but also his assessment
    of the probative value of the tapes in relation to the issues before him.

[13]

Turning to the proposed evidence
    of the social worker and the psychologist, it is my view that the trial judge
    properly excluded it as not being necessary under
R. v. Mohan
, [1994] 2
    S.C.R. 9.

[14]

I find no fault with the trial
    judges refusal to admit the report on the basis of (1) its frailties, and (2)
    the fact that its value  to impeach the report of the court-appointed expert 
    remained available to the appellant through cross-examination and, ultimately,
    argument.   I strongly support the view expressed by Justice Wein in
Mayfield
    v. Mayfield
(2001), 18 R.F.L. (5th) 328, at para. 44 (Ont. S.C.), that

in most cases, it is simply not necessary or
    appropriate to have the parties bring forward the evidence of a collateral
    critique. A social work critique may of course be done to assist counsel in
    formulating questions for cross-examination of the assessor or to assist
    counsel in developing an argument concerning the weight to be attached to an
    assessment report but it will rarely be necessary to introduce the critique
    as original evidence or to call the critique as a witness. The expense in most
    cases could be better spared or applied to an independent assessment.

[15]

The exclusion of the reports of Dr. Peterson, the appellants
    psychologist, and his proposed testimony, was similarly justified. It was open
    to the trial judge to conclude that the reports and testimony would have been
    of little use given that the doctor has no background in child psychology, has
    never observed the children with the respondent, and was admittedly biased in
    favour of the appellant.

[16]

In the end, the record
    overwhelmingly supports the trial judges custody disposition.

Malicious Prosecution Claim

[17]

The malicious prosecution claim arises from the appellants
    position that the respondent, by accusing the husband of physical abuse, abused
    the criminal justice system to interfere with his chances of obtaining a
    favourable custody order.

[18]

In considering this aspect of the
    appellants case, the trial judge carefully reviewed the facts relating to each
    of the assault charges that were laid against the appellant.  Applying these
    facts to the four-part test set out in
Nelles v. Ontario
, [1989] 2
    S.C.R. 170, the trial judge concluded that the appellant failed to establish
    that the test had been met in relation to any of the charges. I find no fault
    with this conclusion.

Child Support

[19]

Section 10(2)(a) of the Federal Child Support Guidelines, O. Reg.
    391/97, permits courts to vary the amount of child support to avoid imposing
    undue hardship on a parent or spouse who has responsibility for an unusually
    high level of debts reasonably incurred to support the parents or spouses and
    their children during cohabitation or to earn a living.  The legal costs
    associated with this litigation caused the appellant to accumulate an
    astonishing amount of debt  the estimate is somewhere between 1 and 1.5
    million dollars.  The trial judge rejected this argument on the basis that the
    appellants approach to the litigation was such that the amount of money he
    spent was staggering and out of proportion.  This description is apt and,
    in itself, justifies the trial judges conclusion that the appellant did not
    meet the onus he faced in demonstrating that the guidelines amount of child
    support should not apply.

The Costs Award  Appeal and Cross-Appeal

[20]

The costs award, its amount and the extent to which it was or was
    not designated as support for the purposes of being enforced through FRO was
    raised as a specific issue on appeal and was the subject of the cross-appeal.

[21]

Turning first to quantum, in my
    view, the trial judge made no error. In the context of family law disputes, a
    court need not find special circumstances to make a costs award approaching
    substantial indemnity: see
Biant v. Sagoo
(2001), 20 R.F.L. (5th) 284,
    at para. 20 (Ont. S.C.).  Here, the trial judge, well-experienced in family
    law, carefully considered all factors relevant to the award of costs. The
    amount awarded was, in the circumstances of this unfortunate case, reasonable.

[22]

This leads to the final issue 
    the enforceability of the costs award through FRO.

[23]

Section 1(1)(g) of the
Family
    Responsibility and Support Enforcement Act
, S.O. 1996, c. 31 provides that
    a support order enforceable by FRO can include provision for legal fees or
    other expenses arising in relation to support.

[24]

Each party submits that the trial
    judge erred in his determination of how much of the respondents costs would be
    subject to FROs enforcement mechanisms.

[25]

The court has considerable discretion over how to deal with a request
    that legal costs be designated as support for the purposes of enforcement by
    FRO, a designation that is complicated when, as here, in addition to support, a
    number of other issues are litigated.
In this case the trial
    judge approached the problem one way  he did his best to identify the portion
    of the trial consumed by the support dispute, assigned a cost amount to it and
    ordered that amount designated as support.  He may have chosen not to attempt
    to perform what is admittedly a somewhat arbitrary dissection of costs.  But he
    cannot be faulted for doing what he did. The statute and case law support an
    approach of this nature: see
Hatcher v. Hatcher
, [2009] W.D.F.L.
    5320, at paras. 30-36 (Ont. S.C.)

[26]

In terms of the appellants position, it is my view that there is
    nothing that warrants interference with the trial judges designation of
    $10,000 of the costs award as part of the child support order for enforcement
    purposes.  In terms of the cross-appeal, to designate all of the costs of the
    appellant by cross-appeal as support for the purposes of FRO enforcement would
    not only be an uncalled for interference with the discretion of the trial judge
    but also may be considered unjust in the light of the resources expended in
    pursuing issues unrelated to support, such as the malicious prosecution
    claim.

[27]

Finally, the
trial judge ordered that all
    amounts owed by the appellant be secured and enforceable against not only the
    appellant personally, but also against his dental business.  This was an order
    that made sense, particularly given the length of time over which the appellant
    will be paying the equalization amount (10 years with no interest).

[28]

For these reasons, both the appeal and cross-appeal are
    dismissed.  The respondent is entitled to her cost of the appeal in the amount
    of $23,000.  The appellant is entitled to his costs of the cross-appeal in the
    amount of $3,000.

RELEASED: JCM             G.J. Epstein J.A.

OCT 25 2011                    I agree J.C.
    MacPherson J.A.

I
    agree H.S. LaForme J.A.


