Bodnar v. Blackman

82 O.R. (3d) 423

Court of Appeal for Ontario,

Laskin, Feldman and Gillese JJ.A.

September 18, 2006

Family law -- Support -- Child support -- Reasons for judgment -- Motion judge making order for child support for adult children pursuant to s. 3(2)(b) of Child Support Guidelines -- Motion judge giving no indication in his reasons as to how he arrived at amount of child support -- Reasons inadequate and preventing meaningful appellate review -- New hearing ordered -- Federal Child Support Guidelines, SOR/ 97-175, s. 3(2)(b).

The mother brought a motion to require the father to pay arrears of support and to vary a 1993 child support order to reflect an increase in the father's income. The motion judge granted the motion, and except for one irrelevant change, his order was affirmed on appeal. The father appealed.

Held, the appeal should be allowed.

The order for child support was made pursuant to s. 3(2)(b) of the Federal Child Support Guidelines. As the motion judge gave no indication in his reasons as to how he arrived at the amount of child support, the father was unable to challenge the order meaningfully and the court was prevented from meaningfully reviewing it. The appeal court judge erred in finding that the motion judge properly considered the relevant factors in setting support pursuant to s. 3(2)(b). While the motion judge considered the children's dependence on their parents, this finding went to the question of whether the children remained "children of the marriage", rather than the setting of child support. The motion judge also made findings about which child resided where and when, but these determinations did not constitute the required consideration of the circumstances of the children for the purposes of establishing the level of support owed by the father for the purposes of s. 3(2)(b). Even if they did, they were insufficient as a consideration of the children's circumstances did not encompass a consideration of the parties' respective financial positions. While the type and extent of information that is required will vary with the individual circumstances of each case, in this case, s. 3(2)(b) required due consideration of: the expenses associated with maintaining a home for children who live away while undertaking post-secondary education; the financial position of each of the parents; and the financial means and needs of the children. The amount of support to be ordered pursuant to s. 3(2)(b) cannot be determined without findings of fact in relation to the needs and means of the parties and the children, including addressing the dual residences of the children while at university. The requisite findings were not made in this case. The evidence was conflicting and incomplete. A fresh hearing, with an appropriate record, was necessary.

APPEAL from the judgment of Platana J., [2005] O.J. No. 4809, 143 A.C.W.S. (3d) 712 (S.C.J.), allowing in part the appeal from the order of Kunnas J. of the Ontario Court of Justice, dated January 5, 2005, varying child support.

Cases referred to Lewi v. Lewi, 2006 15446 (ON CA), [2006] O.J. No. 1847, 209 O.A.C. 344, 267 D.L.R. (4th) 193, 28 R.F.L. (6th) 250 (C.A.), supp. reasons [2006] O.J. No. 2116 (C.A.); R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 211 Nfld. & P.E.I.R. 50, 210 D.L.R. (4th) 608, 284 N.R. 342, 633 A.P.R. 50, 162 C.C.C. (3d) 298, 50 C.R. (5th) 68, 2002 SCC 26 (sub nom. R. v. Sheppard (C.)); R. v. Tzarfin, 2005 30045 (ON CA), [2005] O.J. No. 3531, 201 O.A.C. 183, 67 W.C.B. (2d) 695 (C.A.); Young v. Young (2003), 2003 3320 (ON CA), 63 O.R. (3d) 112, [2003] O.J. No. 67, 223 D.L.R. (4th) 113, 34 R.F.L. (5th) 214 (C.A.) [page424] Rules and regulations referred to Federal Child Support Guidelines, SOR/97-175, ss. 3 [as am.], 7 [as am.]

Phyllis Brodkin and Kim Stock, for appellant. Michael Mauro, for respondent.

The judgment of the court was delivered by

[1] GILLESE J.A.: -- William Bodnar, the appellant, and Wendy Blackman, the respondent, were married. [^1] They are the natural parents of Christopher and Ashley. Both children are of the age of majority and live away from home while going to college. When not at college, they live with Ms. Blackman.

[2] After Mr. Bodnar and Ms. Blackman separated, Mr. Bodnar paid child support to Ms. Blackman in accordance with a 1993 court order.

[3] In 2004, Ms. Blackman brought a motion to require Mr. Bodnar to pay arrears of support and to vary the 1993 order to reflect an increase in Mr. Bodnar's income.

[4] The motion was heard by Kunnas J. He granted the motion in a judgment dated January 5, 2005, and ordered Mr. Bodnar to pay, among other things: child support for two children in the amount of $1,085 per month from September 1, 2003 to May 1, 2004; and, from June 1, 2004 onwards, to pay child support of $702 per month for one child. The reasons given by the motion judge for ordering those sums of child support are set out in full below.

Based on an income of $104,375, the applicant [Mr. Bodnar] will pay child support for two children to the respondent [Ms. Blackman] in the amount of $1,085 per month commencing on 1 September, 2003 and first of [each] month to and including the first of May, 2004.

As Christopher was thereafter not attending school on a full- time basis, his child support ceases to recommence in September 2005 if he remains in the primary care of the respondent and attends full time. Commencing on 1 June 2004 and [the] first of [each] month based on an income for 2004 in the amount of $104, 375, the applicant will pay child support for one child to the respondent in the amount of $702 per month until further order of the [page425] court on the premise that the child Ashley is a full-time student residing primarily with the respondent. This is assumed and accepted as being the fact when she is attending Humber College at this time.

[5] Mr. Bodnar appealed. A number of matters were argued on appeal. Apart from a very minor agreed-upon change to the calculation of s. 7 expenses, by judgment dated October 31, 2005, Platana J. dismissed that appeal.

[6] Mr. Bodnar again appeals.

[7] For the purposes of this appeal, two aspects of the reasons of the appeal court judge are significant. The first is his determination that, as the motion judge did not order the amount required by the Federal Child Support Guidelines, SOR/ 97-175 ("Guideline support"), the motion judge must have acted pursuant to s. 3(2)(b) of the Guidelines when setting child support. Second, he held that the motion judge adequately considered the factors necessary for a determination of the amount of child support pursuant to s. 3(2)(b). Specifically, he was satisfied that the motion judge had considered: the circumstances of the children, including their incomes and need to contribute to their expenses; the children's dependence on their parents; and which child was residing with which parent at any point in time.

[8] For the reasons that follow, I am of the view that the appeal should succeed and the matter of child support payable pursuant to s. 3(2)(b) be remitted for a fresh hearing.

The Issues

[9] While the appellant's factum raises a number of questions about the amount of child support he has been ordered to pay, at the oral hearing of the appeal, counsel for Mr. Bodnar indicated that the primary challenge is to the child support ordered pursuant to s. 3(2)(b). Two matters must be addressed in that regard. Did the appeal court judge err in finding that the motion judge:

(1) gave adequate reasons for the quantum of child support ordered pursuant to s. 3(2)(b) of the Guidelines?

(2) considered the relevant factors pursuant to s. 3(2)(b)?

The Adequacy of Reasons of the Motion Judge

[10] The requirement that a judge give reasons for decision is clear. It is an inherent aspect of the discharge of a judge's responsibilities. See R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 162 C.C.C. (3d) 298. As Binnie J. noted at para. 24 of Sheppard:

[T]he requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. [page426] The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.

[11] The need for reasons in the family law context was recently affirmed by this court in Young v. Young (2003), 2003 3320 (ON CA), 63 O.R. (3d) 112, [2003] O.J. No. 67 (C.A.). At para. 27 of Young, Laskin J.A., writing for the court, states:

The desirability of reasoned reasons in a criminal case rests on three main rationales: public confidence in the administration of the justice system, the importance of telling the losing party the reasons for having lost, and making the right of appeal meaningful. These three rationales also apply to a family law case and are relevant in this case.

[12] The adequacy of reasons is to be decided on a functional approach; the reviewing court must ask itself whether the reasons meet the three rationales. On that approach, in my view, the reasons of the motion judge are inadequate. [^2]

[13] The appellant seeks to challenge the order requiring him to pay the respondent child support of $1,085 per month for the two adult children of the marriage, while they are full-time students, and $702 per month if only one of the children is a full-time student. In assessing the adequacy of the reasons, it is important to keep in mind the legislative provision under which the motion judge acted in setting child support.

[14] Section 3(2) of the Guidelines reads as follows:

Child the age of majority or over

3(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

[15] As the appeal court judge correctly held, the order for child support was made pursuant to s. 3(2)(b) of the Guidelines, not s. 3(2)(a). Had child support been ordered pursuant to s. 3(2)(a) of the Guidelines, a bald statement as to the amount of child support [page427] to be paid would be sufficient. That is because child support ordered pursuant to s. 3(2)(a) is based on income and there is no discretion involved in setting the amount. Once the motion judge determined Mr. Bodnar's income, had he been acting pursuant to s. 3(2)(a), he needed only to refer to the Table to determine the amount of child support to be paid. In such a situation, he would not have needed to give reasons for the amount ordered as it would have been implicit that the amount had been determined by reference to the Table.

[16] However, the motion judge was not acting pursuant to s. 3(2)(a). He exercised his discretion and set the amount of child support pursuant to s. 3(2)(b). As the motion judge gives no indication in his reasons as to how he arrived at the amount of child support, the appellant is unable to meaningfully challenge the order. He simply does not know why the amount that was ordered was chosen as the appropriate figure for child support.

[17] The motion judge articulated neither the law nor the evidence relied on in setting the amount. Thus, the basis for the exercise of the motion judge's discretion in setting the amount is unclear. Did he apply the right law? What factors and evidence did he consider when setting the amount? Did he set the amount primarily on the basis of the Guideline amount, given the appellant's income, with a small discount? If so, did he err in principle? Does the amount of s. 3(2)(b) child support payable to the respondent take into consideration the appellant's obligation to contribute towards the children's s. 7 living expenses while living away from home? If so, does the order require the appellant to pay twice for the children's living expenses? Is the quantum of child support related to the costs that the respondent incurs by virtue of the children living with her when they are not attending post-secondary education? If not, why not? The motion judge gave some consideration to the children's incomes in the context of s. 7 expenses but he did not relate their means and needs to the amount of support considered appropriate under s. 3(2)(b), as required by that provision. The reasons say nothing about the financial ability of each parent to contribute to the support of the children, a matter which s. 3(2)(b) also requires the court to have regard to when setting child support under that provision.

[18] There are no reasons given for the amount of child support ordered so there are no answers to these questions. Thus, the appellant is prevented from meaningfully challenging the amounts he has been ordered to pay and this court is prevented from meaningfully reviewing the order. In a matter involving the exercise of discretion, when a judge makes an order without giving [page428] reasons, an appellate court has no access to the reasoning underlying the determination and so cannot afford it deference.

[19] It will be apparent that I disagree with the appeal court judge's determination that the motion judge properly considered the relevant factors in setting support pursuant to s. 3(2)(b). I accept the appeal court judge's view that the motion judge considered the children's dependence on their parents. However, that finding goes to the question of whether the children remain "children of the marriage", rather than the setting of child support. I also accept that the appeal court judge was correct when he held that the motion judge made findings about which child resided where and at what times. However, such determinations, in my view, do not constitute the required consideration of the circumstances of the children for the purposes of establishing the level of support owed by the appellant to the respondent for the purposes of s. 3(2)(b). In any event, even if they did, they are insufficient as a consideration of the children's circumstances does not encompass a consideration of the parties' respective financial positions.

[20] In fairness to both the appeal court judge and the motion judge, it must be pointed out that they did not have the benefit of this court's recent decision in Lewi v. Lewi, 2006 15446 (ON CA), [2006] O.J. No. 1847, 267 D.L.R. (4th) 193 (C.A.), when deciding the matter. Lewi addresses the difficult questions posed in setting child support pursuant to ss. 3(2)(b) and 7 of the Guidelines and offers guidance on the factors to be considered when setting such support.

[21] I wish to add that I am sympathetic to the demands on motion court judges. They almost inevitably face lengthy dockets every day of the week. Most, if not all, of the matters they hear are urgent and need to be decided quickly. All of the matters are important to the parties. As in the present case, the motion judge is usually called on to decide a number of interrelated issues in any given case, issues which often involve conflicting and incomplete evidence. All of these factors make the writing of timely reasons a real challenge.

[22] I would reiterate the recent comments of this court in R. v. Tzarfin, 2005 30045 (ON CA), [2005] O.J. No. 3531, 201 O.A.C. 183 (C.A.), at para. 9:

[A]ppellate courts must not place an impossible burden on busy trial courts. An accused is entitled to adequate reasons, not perfect reasons.

This sentiment applies equally to the reasons of motion judges, including those deciding family law matters. Nonetheless, the appellant has been ordered to pay a substantial sum of money for a substantial period of time and he is entitled to know the basis for such an order. [page429]

Child Support Pursuant to Section 3(2)(b) of the Guidelines

[23] Section 3(2)(b) requires a court to set child support based on the "condition, means, needs and other circumstances of" the children and "the financial ability of each spouse to contribute to the support of the child". Some of the considerations that are relevant when assessing the needs and means of the parties and children for the purposes of setting the amount of child support to be ordered pursuant to s. 3(2) (b) are reflected in the questions posed in the foregoing section. While the type and extent of information that is required will vary with the individual circumstances of each case, in this case, that section required due consideration of: the expenses associated with maintaining a home for children who live away while undertaking post-secondary education; the financial position of each of the parents; and the financial means and needs of the children. [^3]

[24] It is clear that the amount of support to be ordered pursuant to s. 3(2)(b) cannot be determined without findings of fact in relation to the needs and means of the parties and the children, including addressing the dual residences of the children while at university. The requisite findings have not been made in this case and, on the record before this court, it is not possible to make them. The evidence is conflicting and incomplete. Consequently, I would remit the matter for a fresh hearing, with an appropriately enhanced record.

[25] Having said that, I would note that the motion judge refers only to the appellant's income when setting child support under s. 3(2)(b). Whereas income is the determinant of child support under s. 3(2)(a) and the "guiding principle" in setting child support under s. 7, s. 3(2)(b) calls for a consideration of the means and needs of the parties and the children. Absent special circumstances, to set the amount of child support based primarily on a single factor (i.e., the income of one party) would be an error in principle as it runs contrary to the terms of s. 3(2)(b).

Disposition

[26] Accordingly, I would allow the appeal and remit the matter of child support payable by the appellant to the respondent pursuant to s. 3(2)(b) to be decided in accordance with these reasons.

[27] In the circumstances, I would fix costs of the appeal at $7,500, inclusive of disbursements and GST. I would leave undisturbed the costs awards in both courts below because: [page430]

(a) the respondent was required to bring the motion before Kunnas J. in large part because the appellant failed to disclose his income, as he was required to, and the support payments he made were based on an annual income of $40,000 rather than his actual income which was in excess of $100,000; and

(b) even after taking into consideration the result of this appeal, the respondent enjoyed substantial success in both levels of court below.

Appeal allowed.

[^1]: The parties cannot agree on the dates of their marriage or separation. The appellant says they separated in 1990 after approximately three years of marriage. The respondent says they were married in 1986 and separated in 1988.

[^2]: I refer to the reasons of the motion judge throughout because the appeal court judge upheld the quantum of support ordered without giving reasons additional to those of the motion judge.

[^3]: See paras. 105-08 of the dissenting reasons of Gillese J.A. in Lewi, supra, for a fuller discussion of relevant considerations. The majority did not take issue with this portion of the dissent.