COURT OF APPEAL FOR ONTARIO
Pardu, Paciocco and Thorburn JJ.A.
BETWEEN
Lisa Michelle Vale
Applicant (Respondent)
and
Michael Vale
Respondent (Appellant)
Anna Towlson, for the appellant
Caroline Kim, for the respondent
Diane McInnis, for the Office of the Children’s Lawyer1
Heard: March 22, 2022 by video conference
On appeal from the orders of Justice James W. Sloan of the Superior Court of Justice, dated December 9, 2020 and December 22, 2020.
REASONS FOR DECISION
1Mr. Vale appeals from the following final orders made on a motion by Ms. Vale:
The child E shall primarily reside with the mother.
The father shall exercise access to E in accordance with her wishes.
Child support, commencing January 1, 2021, shall be in the guideline amount of $1,244.00 per month, payable by the father to the mother.
Child support arrears as of December 9, 2020 are set at $3,678.00, payable by the father to the mother.
The mother shall have the right to send medical receipts for the children directly to the father’s health insurance company and receive the reimbursement money directly from them. The father shall cooperate in setting this mechanism up.
2The issue of special or extraordinary expenses under s. 7 of the Federal Child Support Guidelines, SOR/97-175 [the Guidelines] was adjourned to a later date.
3The parties were married on July 23, 2004. They have three children: Z, born in 2002; E, born in 2006; and N, born in 2007. The parties separated on December 9, 2016.
4Ms. Vale began divorce proceedings and also claimed custody and child support, together with other relief related to the breakdown of the marriage. The Office of the Children’s Lawyer [the OCL] became involved and recommended joint custody and a shared alternating week parenting schedule.
5The parties entered into a comprehensive separation agreement on December 12, 2018. They agreed to the recommendations of the OCL and agreed to continue to negotiate the details of a comprehensive parenting plan. The agreement indicated that the parties were to try to resolve any future differences between them, but if it was unreasonable to expect a difference between the parties to be resolved by negotiation or continued negotiations, any such difference would be resolved by a court upon application of either party.
6The terms of the separation agreement were not incorporated into a final order in the divorce proceedings, which were left without any final disposition. Ms. Vale filed the separation agreement with the court for enforcement.
7Differences arose between the parties about health insurance reimbursement for the substantial health care expenses for the children. Because of changes in the parties’ incomes, Ms. Vale also submitted that she was entitled to a recalculation of the child support then paid to her, which was based on an offset taking into account the alternating week schedule and the parties’ incomes, applying the Guidelines.
8In March 2020, E stopped staying with Mr. Vale and began living full time with her mother. Her decision was supported by the OCL.
9Ms. Vale brought the motion leading to the orders in dispute on this appeal on July 13, 2020. At the hearing of the motion, counsel for the mother observed that the father would not acknowledge that E was living with her mother. The motion judge responded that there was now that acknowledgement and told both counsel that “there’s going to be an interim without prejudice order to take that off the table.”
10The father would not consent to an order that E reside with her mother but indicated that he was not asking that the child be removed from her mother’s home or be forced to live with each parent in alternating weeks. He accepted that his obligations to pay child support had to be recalculated as a result of that change. He proposed that the parties engage in some form of dispute resolution and argued that the issue of child custody was not properly before the court.
11The mother requested a change in child support to $1,244.00 per month because of the change in E’s residence in March 2020. The father had been paying $723.00 per month based on the circumstances before the change in E’s residence, without increasing the support payable.
12The father acknowledged that the mother’s calculation of $1,244.00 per month was mathematically correct, based on the parties’ incomes and the Guidelines. He was concerned about future expenses that might be required for Z’s post-secondary education, although he essentially acknowledged that those expenses were covered by other resources available to Z for the period then in issue. The father’s income was approximately $116,000 per annum and the mother earned a little over $55,000 per year. The father said because Z was an adult child and because of substantial s. 7 expenses for counseling, he wanted to “take a holistic approach to child support” and pay $1,000.00 per month instead of $1,244.00.
13The mother sought arrears. She proposed that although E had been with her full-time since March 2020, arrears should be paid effective from July 2020. Although the separation agreement contemplated yearly exchange of income tax information, that never occurred. Both parties acknowledged that the separation agreement provided that the parties would adjust child support every year beginning July 1 and would also adjust it to reflect any change in the residence of a child. The father agreed that, assuming he was to pay $1,000.00 per month in child support, he owed $2,514.00 in arrears. The mother based her calculations on the father having to pay $1,244.00 per month, resulting in arrears of $3,678.00.
14The mother had incurred over $12,000 in s. 7 expenses for the children’s health care. The parties had been unsuccessful in navigating the father’s health insurance plan to secure reimbursement for those expenses. The mother stated that she was paying over $700 per month just for psychologists, and that the father would not submit the bills to his insurer.
15After hearing from counsel, the motion judge stated: “There’ll be an interim without prejudice order. I think [E’s] principal residence [will be] with mom. She will see dad when she wants to. I’m going to set the arrears of child support at $3,678 and I don’t see any reason why the ongoing support isn’t $1,244 per month.” He went on to make an order permitting the mother to file claims with the father’s health insurer directly and directed the parties to file written submissions regarding costs. He adjourned the issue of s. 7 expenses to another date.
16The actual endorsement signed by the judge did not specify whether the orders made were temporary or final. The parties sought clarification on this point from the motion judge and on December 14, 2020, the motion judge clarified that all orders made were final orders.
17Ultimately, the motion judge awarded costs to Ms. Vale in the amount of $22,541.81.
18This is a high conflict family. The motion had been adjourned three times without any increase in support by the father.
Analysis
(1) The Separation Agreement and Relevant Statutory Provisions
19Paragraph 10(2) of the separation agreement included the following term for adjustment of child support on an annual basis:
(2) Commencing June 1, 2019 and on June 1st in every year thereafter, the parties will exchange their income tax information and they will determine the appropriate child support payable for the children and such adjustment of child support will commence on July 1st in any subsequent year after considering the residence of the child(ren) and the income of both parties. If the parties do not agree about the adjustment to be made, they will use the section of this Agreement entitled “Dispute Resolution” to resolve the issue.
20Section 35(1) of the Family Law Act, R.S.O. 1990, c. F.3 provides that a person who is a party to a domestic contract may file that contract with the Family Court of the Superior Court of Justice.
21Section 35(2) provides that a provision for support or maintenance contained in a contract that is filed in this manner may be enforced, varied under s. 37 or recalculated under s. 39.1 of the Act.
22Section 39.1 contemplates that a service operated by the government of Ontario will recalculate child support according to the Guidelines. If a party to an order for child support believes that the income information on which the order was based has changed, the party may apply to this service for a recalculation of the support payable.
(2) Did the Motion Judge Err by Varying Support?
23We do not accept the father’s argument that the motion judge erred by varying the support contrary to the terms of the separation agreement. Here, the mother was not attempting to vary the provisions for child support contained in the separation agreement. She was attempting to enforce them. Contrary to the father’s arguments, a motion to change support was not required in these circumstances: see Bouchard v. Sgovio, 2021 ONCA 709.
(3) Did the Motion Judge Err in Quantifying Support?
24Nor do we agree with the father’s submission that the motion judge erred in resolving the issues about the quantum of support payable on an ongoing basis and the amount of the arrears. The preamble to the Family Law Act notes the need for the orderly and equitable settlement of the affairs of the spouses and the equitable sharing by parents of responsibility for their children. The motion judge had all the information he needed to make a decision about these issues. No one asked for a trial of that issue or objected to the motion judge deciding that issue. Both parties provided their calculations to him. There was no real justification advanced for the time period in issue for the discount the father sought to the amount of support set out in the Guidelines. Section 3(1) of the Child Support Guidelines, O. Reg. 391/91 provides that unless otherwise provided under those guidelines, the amount of an order for child support for children under the age of majority is the table amount plus s. 7 expenses. Section 10 provides that a court may award a different amount of support if the payor would otherwise suffer undue hardship. Undue hardship is defined to extend to limited circumstances and is only available when the payor’s standard of living would be less than that of the recipient of the support. The appellant could not meet that test because of his income. Z’s circumstances did not justify a deviation from the table amount of support.
(4) Did the Motion Judge Lack Jurisdiction to Vary Parenting Time?
25We do not accept the father’s submission that the motion judge did not have jurisdiction to vary parenting time for E because the parties had signed a separation agreement. The motion judge had jurisdiction to make an interim variation of custody on a motion brought in these proceedings, where the best interests of the child demanded it. No final order had been taken out in these proceedings. Section 56(1) of the Family Law Act provides that in the determination of a matter respecting parenting time with respect to a child, the court may disregard any provision of a domestic contract where in the opinion of the court, to do so is in the best interests of the child. Here, it was obvious and agreed that E was going to remain living with her mother, and the motion judge would not have erred in giving effect to that reality by making an order that she was to reside with her mother on an interim basis.
(5) Did the Motion Judge Err in Issuing a Final Order?
26We do find, however, that the motion judge erred in issuing a final order. To be clear, neither party suggested to the motion judge that his disposition of the issue of ongoing child support and arrears should be made on an interim basis. The motion judge’s manner of dealing with the issue of ongoing support and arrears was proportionate and appropriate to the issues in dispute. The same comments apply to the motion judge’s enforcement of the provision in the separation agreement dealing with health care insurance reimbursement.
27The motion judge did, however, indicate during the hearing that the change to E’s living arrangements would be made on an interim basis. For some unexpressed reason, he later indicated that the order would be final. The trial judge’s decision to impose a final order was understandable; E was fragile in some respects, and to subject her to an ongoing custody dispute in the circumstances seems futile. This child has been a subject of ongoing proceedings since she was ten years old. She is now sixteen and has been living with her mother for some two years and the father indicated that he did not propose to alter that arrangement.
28Having indicated that he would make the order on an interim basis, the motion judge erred in making it final. Procedural fairness was denied to the parties, who had no reason to believe that the finality of the order should be addressed during the hearing. We would vary the motion judge’s order that “the child [E] shall be primarily a resident with the mother” and “[t]he father shall exercise access to E in accordance with her wishes” by adding “on an interim basis” to both of those aspects of the order.
(6) Should Leave to Appeal Costs be Granted, and the Appeal of Costs be Allowed?
29Mr. Vale also seeks leave to appeal from the costs order made against him in the sum of $22,541.81. The motion judge’s costs endorsement noted:
The applicant was substantially successful on almost all points raised in her motion. She served an offer to settle which was not accepted and if it had been, there would have been no need for the motion.
With respect to the issue of costs the father basically tried to re-argue the motion.
30We accept that the award of costs in favour of the mother may have been affected by the final nature of the disposition of parenting time for E. We would grant leave to appeal costs and vary the costs awarded in favour of the mother by reducing it by $2,000.00 to $20,541.81, with post judgment interest to run from the date of the award of costs by the motion judge.
CONCLUSION
31Success has been divided on this appeal. It is difficult to see how the pursuit of this appeal will have any practical consequences for the parties, except to increase their legal costs. In these circumstances, we award costs of the appeal to the respondent Ms. Vale in the sum of $3,000.00 inclusive of taxes and disbursements, an amount proportionate to the issues at stake on the appeal.
“G. Pardu J.A.”
“David M. Paciocco J.A.”
“J.A. Thorburn J.A.”
