[Indexed as: May-Rutter v. Crisp]
Margaret May-Rutter, Appellant (Respondent in Appeal) and Timothy Crisp, Respondent (Appellant in Appeal)
Ontario Divisional Court
Carnwath, Epstein, Winkler JJ.
Heard: June 4, 6, 2002
Judgment: June 26, 2002
Docket: Brampton 02-BN-0l52
Todd Jenney, for Appellant
Peter Parkinson, Q. C., for Respondent
Per curiam:
1 This appeal by Mr. Crisp from Snowie, J.'s judgment of December 7, 2001, is but the latest judicial intervention of many in the parties' domestic arrangements.
Background
2 On December 15, 1998, Wolder, J. made a final order in the Ontario Court (Provincial Division) requiring Mr. Crisp to pay support for the five children in the guideline amount of $1,215.19. Mr. Crisp and Ms. May-Rutter consented by Minutes of Settlement that any future CPP disability payments to the children made following Mr. Crisp's application for such a pension, would be deducted from the guideline amount payable by Mr. Crisp. Each party was represented by counsel.
3 Wolder, J. so ordered, presumably purporting to exercise the discretion granted to him by s. 33(14) and (15) of the Family Law Act, which provides:
(14) Despite subsection (11), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines on the consent of both parents if the court is satisfied that, (a) reasonable arrangements have been made for the support of the child to whom the order relates; and (b) where support for the child is payable out of public money, the arrangements do not provide for an amount less than the amount that would be determined in accordance with the child support guidelines.
(15) For the purposes of clause (14)(a), in determining whether reasonable arrangements have been made for the support of a child, (a) the court shall have regard to the child support guidelines, and (b) the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the child support guidelines.
4 Following December 15, 1998, further appearances before Wolder, J. took place. On January 14, 2000, he confirmed his order of December 15, 1998. On June 8, 2000, he again confirmed the deduction arrangement to which Ms. May-Rutter consented. On September 28, 2000, he denied Ms. May-Rutter' s motion to set aside his confirmation of June 8, 2000. On July 4, 2001, Wolder, J. declared his order and findings of January 14, 2000, and June 8, 2000, to be his final judgment after trial. He further declared the issue of the deduction arrangement to be res judicata "having been settled in paragraph 2 of my order of De-cember 15, 1998...".
5 Ms. May-Rutter issued a notice of appeal dated August 21st, 2001, appealing Wolder, J.'s order of July 4, 2001, and in the alternative, December 15, 1998. The appeal was heard by Snowie, J. on December 7, 2001.
6 Snowie, J. made the following findings:
- She found the issue to be decided on the appeal was whether the CPP benefit payments reduced the child support payable by Mr. Crisp.
- She found no leave was sought or obtained to appeal the order of December 15, 1998.
- She found Wolder, J. erred in law in permitting the deduction arrangement, based on her reading of Huey v. Huey (1991), 39 R.F.L. (3d) 14 (Ont. Gen. Div.) and Williams v. Williams (1995), 18 R.F.L. (4th) 129 (Ont. Div. Ct.). She did not discuss s. 33(14) and (15) of the Family Law Act and the discretion it confers.
Analysis
7 1. On July 4, 2001, Wolder, J. found the deduction issue res judicata, having been decided by him on December 15, 1998. We agree. Subsequent attempts by Ms. May-Rutter to appeal that decision by re-visiting the issue were rejected by Wolder, J. in his orders of January 14, 2000, June 8, 2000, September 28, 2000, and July 4, 2001. Snowie, J. misconstrued the issue she had to decide. 2. Snowie, J. was incorrect in her finding that Ms. May-Rutter had not sought to appeal the December 15, 1998, order. If she had considered that order as having been appealed, as per the Notice of Appeal, leave would have been required as the order was made on consent. In proper circumstances, Snowie, J. could have granted leave nunc pro tunc and dealt with the December 15, 1998, order on the merits. 3. Snowie, J.'s analysis of Huey v. Huey and Williams v. Williams was correct in situations where the parties did not consent to a deduction arrangement of CPP disability benefits payable to the children. However, where parties consent, the exception permitted by s. 33(14) and (15) come into play. We would not interfere with the exercise of Wolder, J.'s discretion on December 15, 1998, as subsequently confirmed on four occasions.
Result
8 The appeal is allowed, the judgment of Snowie, J. is set aside. The orders of Wolder, J. of December 15, 1998, January 14, 2000, June 8, 2000, September 28, 2000, and July 15, 2001, are confirmed, insofar as they deal with the credit to be given for CPP benefits payable to the children.
9 The parties have fifteen days to make written submissions as to costs.
Appeal allowed.