COURT FILE NO.: 240/04
DATE: 20050425
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’DRISCOLL, MATLOW AND E. MACDONALD JJ.
B E T W E E N:
ROSS ALEXANDER NORDIN
Appellant/Applicant
- and -
JANET LOUISE JOSLIN
Respondent/Respondent
J.B.C. Edney for the Appellant
R.F. Cantor for the Respondent
HEARD at Toronto: April 25, 2005
O’DRISCOLL J. (Orally):
[1] The appellant, the former husband of the respondent, appeals to this Court under the provisions of s. 19(1)(a)(ii) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 from the judgment of Backhouse J., dated March 31, 2004 and her “Addendum”, dated April 5, 2004.
[2] Before Backhouse J., the appellant sought a variation of the child support provisions of the divorce judgment of Wright J., dated January 25, 2002. Before Backhouse J. the appellant succeeded in part. He appeals to this Court on those issues on which he did not succeed before Backhouse J.
[3] The respondent has filed a cross-appeal submitting that Backhouse J. erred in ordering retroactive reduction in child support to commence on March 1, 2003. The same submission is made for the retroactive reduction in child care and extraordinary expenses for January, February and March 2004.
[4] The parties were married in 1982. They have twin daughters, born December 15, 1991. They were divorced on January 24, 2002. All issues arising out of the breakdown of the marriage were settled by Minutes of Settlement, dated April 19, 2000, the terms of which were incorporated into the divorce judgment of Wright J., dated January 24, 2002.
[5] In Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 at [10] and [11], the Court said:
When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerable discretion by trial judges…Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed.
Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong…
[6] The appellant pursued the following issues before us:
The motions judge erred by using different figures for the appellant’s income during the period January to March 2004.
The trial judge erred by including in the income of the appellant the amount received after the appellant collapsed his pension in order to meet the terms of the child support order, and
Costs fixed by Backhouse J. at $6,233.91, payable by the appellant to the respondent.
[7] As quoted above, the Supreme Court of Canada in Hickey v. Hickey reminds us that in view of the discretion given to motions court judges and trial judges with regard to support obligations, they must be given considerable deference by appellate courts. It may be that if one set up a page with columns and put the required pluses and minuses where required, the bottom line may be somewhat different than the one achieved by the motions court judge. However, when the amounts awarded by Backhouse J. are balanced against her discretion, it cannot be said that any error in principle or overriding error has been committed. We must remember that the amounts involved are about child support. The children’s best interests are always the primary concern.
[8] As to costs, they are, pursuant to the Courts of Justice Act and rule 57.01, also in the discretion of the motions court judge. Again, we find no error in the discretion exercised by Backhouse J. as to the costs awarded to the respondent.
[9] The appeal will, therefore, be dismissed.
[10] Regarding the cross-appeal, we find no merit in law or fact regarding the overall issues raised on the cross-appeal and it too will be dismissed.
[11] We have heard submissions with regard to costs of the appeal and the cross-appeal. We fix costs of the appeal as follows: the appellant shall pay to the respondent the sum of $5,000.00, all inclusive, within thirty (30) days of this date. There will be no costs on the cross-appeal.
O’Driscoll J.
Matlow J.
E. Macdonald J.
Released:
COURT FILE NO.: 240/04
DATE: 20050425
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
o’driscoll, matlow and e. macdonald jj.
B E T W E E N:
ROSS ALEXANDER NORDIN
Appellant/Applicant
- and -
JANET LOUISE JOSLIN
Respondent/Respondent
ORAL REASONS FOR JUDGMENT
O’Driscoll J.
Released: April 28, 2005