Currie v. Jackson

Indexed as: Currie v. Jackson

Gordon D Currie, Appellant and Kelly Jackson (Zucker), Respondent

Ontario Divisional Court

Lane, Matlow, Wallace JJ.

Heard: March 20, 2002

Judgment: May 15, 2002

Docket: 60912/01

S. Fleury, for Appellant

E. Saad, for Respondent

[1] Order to go allowing this appeal and setting aside paragraphs 3, 4, 5 and 9 of the order of Glass, J. dated October 12, 2001. Commencing retroactively to April 1, 2002, the appellant shall be required to pay to the respondent $252 per month for the support of Jonathan Gordon Currie and the respondent shall be required to pay to the appellant $538 per month for the support of Dylan James Currie. The respondent shall be entitled to set off the amount payable to her by the appellant and pay to the applicant the net difference, namely, $286 per month. The order setting aside paragraph 5 of the order below shall be subject to specific terms and conditions that will require the applicant to maintain the fund without diminution for Jonathan's benefit. If the parties cannot agree on the terms and conditions to be inserted in our order, we will receive written submissions and give further directions. The parties may make submissions regarding to the costs of the proceedings below and of this appeal within a reasonable time by delivering them to the Registrar of this Court at Osgoode Hall to the attention of the president of this panel.

[2] We are persuaded that the judge below was clearly wrong with respect to the dispositions set out in paragraphs 3, 4, and 5 of the order under appeal.

[3] Paragraph 3 of the order reads as follows;

3. The Respondent, Gordon Currie, has failed to comply with the Order of August 17, 2001, for complete financial disclosure. With what the Respondent has filed, his income shall be imputed to be $65,000.00 per annum.

[4] In our view the record does not reveal that the appellant was in default of that provision.

[5] The order of August 17, 2001, referred to required the appellant, in part, "to provide full financial disclosure as required by The Rules". At that stage of the proceedings, it was Rule 13 of the Family Law Rules which was applicable to the order made. It provided that "the court may order each party to serve and file a financial statement within the time decided by the court". However, no time limit was imposed in the order.

[6] As well, we observe that the order requiring the appellant to provide further financial disclosure was clearly intended to require him to provide additional disclosure as the appellant had already provided disclosure. However, the order did not specify the precise details of the further disclosure required to enable the appellant to appreciate what more he had to provide.

[7] In addition, at the time that the order of August 17, 2001, was made, the hearing of the motion to change was fixed for November 28, 2001. The order made also provided that "Parties to file any additional material 2 weeks before return of motion". Although this reference to the filing of additional material may have been intended to include the further financial disclosure ordered to be provided, it seems more likely to have been applicable only to further material which the parties, at their option, wished to file. However, even if this time limit was applicable to the financial disclosure, the time limit would have extended to November 14, 2001.

[8] As a further complicating factor, the order of August 17, 2001, granted permission to the parties "to contact the trial co-ordinator for an earlier date if one is available". As a result of an initiative by the respondent, an earlier available date was found shortly before August 28, 2001, and the hearing was advanced to September 17, 2001. If the time limit referred to in paragraph 7 did apply to the appellant's obligation to provide further financial disclosure, the appellant had at that time only about one week in which to comply rather than about eleven weeks. On August 28, 2001, the appellant attempted to move for an order reinstating the November 28, 2001, hearing date but that motion was dismissed because it was made without leave.

[9] In these circumstances, it was unreasonable for the judge below to find that the appellant was in default of the order requiring him to make further financial disclosure.

[10] Paragraph 4 of the order reads as follows;

4. Child support is rescinded for the Applicant mother as both parents have one child and approximately same income.

[11] In our view there was no basis on which the judge below could reasonably have imputed an annual income of $65,000.00 for 1999 to the appellant and then concluded that the applicant's income was approximately the same as the respondent's.

[12] The copy of the appellant's 1999 income tax return which was before the Court below (see Appeal Book, volume 3, page 262A) showed that the appellant's total income for that year was $65,843.15 of which $63,778.00 was attributed to "wage loss replacement disability benefits". The return and other supporting material, without conflicting evidence, revealed that of this total, $7159.77 was attributable to the year 1997, $28,639.08 was attributable to the year 1998 and only $27,979.18 was attributable to the year 1999.

[13] As well, the judge below failed to take into consideration the formal consent executed by the parties on June 22, 2001, agreeing to the variation of a previous order, in which they acknowledged that the appellant's income was $28,400.00 and the respondent's was $64,300.00. Similar amounts were set out in the respective case conference briefs filed by the parties for use before the judge below at the case conference which he conducted on August 17, 2001. These were the amounts of income to which the judge below ought to have applied the Guidelines and determined the respective amounts that each party ought to be required to pay for child support. Rather than remit this application for reconsideration, we are satisfied that we have sufficient evidence before us to make the proper determination ourselves and that we ought to do so. The provision in paragraph 1 of this endorsement relating to child support reflects the outcome of that exercise.

[14] Paragraph 5 of the order reads as follows;

5. The education fund for Jonathan Currie, born August 12, 1988, will be transferred to Applicant, Kelly Jackson, to administer.

[15] In our view there was no basis upon which the judge below could reasonably have ordered the transfer of this fund. The appellant was the owner of the fund and the parties had taken its value into account when their assets were divided between them. Counsel for the respondent very fairly advised the Court that his client would be content with the setting aside of paragraph 5 of the order on terms and conditions that would require the appellant to maintain the fund without diminution for Jonathan's benefit and counsel for the appellant, with equal fairness, advised the Court that his client would also be willing to consent to such terms and conditions. Accordingly, it is desirable that the order requiring the transfer be set aside and that the appellant continue to own and administer the fund on specific terms and conditions to which both parties consent designed to achieve the intended objective.

Appeal allowed.