COURT FILE NO.: 112/03

DATE: 20031113

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

DUNNET, CARNWATH AND JENNINGS JJ.

B E T W E E N:

ALLYSON VALERIE MASON

Respondent

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PAUL MASON

Appellant

Lorna M. Yates and Cheryl Goldhart, for the Respondent

Gregory Dillon, for the Appellant

HEARD: November 13, 2003

DUNNET J.: (Orally)

1This is an appeal by the husband from the order of Karakatsanis J. under s. 17(4) of the Divorce Act. The husband seeks to reduce his child support obligations to his wife.

2The principle issues raised on the appeal are:

(i) the presumptive application of the Child Support Guidelines tables, and

(ii) the application of the Guidelines tables in determining the amount of child support payable in circumstances where the parties have not made special provisions for the support of the children.

3Pursuant to the judgment for divorce, the husband was ordered to pay $400 per month for child support for the five children of the marriage. By Order of Low J., dated December 2, 1999, his monthly child support obligations were increased on consent to $800.00, notwithstanding that this amount was less than the Guidelines table amount.

4On January 22, 2003, Karakatsanis J. found that the amount ordered by Low J. in December, 1999 was significantly less than the Guidelines. She ruled that material changes in circumstances had occurred such that the husband was no longer obligated to pay support for the eldest two children. The support payable for the remaining three children was raised to $1,073 per month in order to meet the Guidelines, based upon the husband’s average income for the years 1999 to 2002.

5The motions judge found that s. 17(6.1) of the Divorce Act requires that a child support order pursuant to s. 15.1(7) of the Act must be in accordance with the Guidelines table amount pursuant to s. 3 of the Guidelines. Further, she was not satisfied that there were special provisions under s. 17(6.2) of the Act that would warrant departing from the Guidelines.

6We reject the submissions of the appellant that the motions judge was bound by the decision of Low J. to order less than the table amount.

7The judge at first instance must be accorded considerable deference by the appellate court. Her decision should not be overturned unless there was an error in principle, a significant misapprehension of evidence or the award is clearly wrong.

8The order of Low J. did not make reference to any special provisions that could justify departing from the Guidelines. There was no evidence before the motions judge that the parties contemplated making unusual provisions for the children at the time of the order of Low J. It was not unreasonable, therefore, for the motions judge to adhere to the Guidelines when varying the order of Low J.

9The fact that there had been a change in circumstances in the conditions, means, needs and other circumstances of the children in 1999 that were not contemplated at the time of the order of Low J. was undisputed by the husband.

10Accordingly, there was no error in principle or misapprehension of evidence in the decision of the motions judge and her order varying the order of Low J. should not be disturbed.

11The appeal book will read: “For oral reasons, the appeal is dismissed with costs fixed at $4,000 plus disbursements and GST, payable within 30 days.”

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DUNNET J.

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CARNWATH J.

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JENNINGS J.

Date of Reasons for Judgment: November 13, 2003

Date of Release: November 17, 2003

COURT FILE NO.: 112/03

DATE: 20031113

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

DUNNET, CARNWATH AND JENNINGS JJ.

B E T W E E N:

ALLYSON VALERIE MASON

Respondent

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