ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MEEHAN, CHAPNIK and DONOHUE, JJ.
B E T W E E N: )
RENE JEANNOT LAFLEUR ) Martin Prost ) for the ) Applicant/Appellant Applicant ) Appellant on the Appeal )
- AND - )
VIOLA JOY DONOGHUE ) Respondent ) John Rose ) for the Respondent ) Heard at Newmarket: ) September 12, 2006
ENDORSEMENT
1This appeal involves a family law proceeding in which both parties brought motions to vary the terms of the child support Order made on consent dated December the 11th, 2001. The motion to vary brought by the Respondent was denied and the motion of the Applicant was granted in part.
2The Applicant/Appellant, Rene Jeannot LaFleur appeals the decision of Mr. Justice Wood, made December the 15th, 2005. The main issues appealed involve the refusal to attribute income to the Respondent mother, and although child support was increased for the two dependent children of the marriage, the Courts refusal to make the increase retroactive to a date prior to the motion for variation. As well, the Appellant appeals the denial of his claim for extraordinary expenses being made retroactive, his claim for interest on alleged child support arrears, and the denial of a change of control over the funds set aside for the education of the children as well as reimbursement of $248.15 to that fund by the Respondent.
3The Appellant brings new evidence in the form of the Respondent’s income tax return for the year ending April the 6th, 2005, claiming that she misled the Court regarding her actual income, and that the amount earned to that date represents a substantial increase such that would Wood J. would have altered his decision accordingly.
4In April of 2004, the Respondent chose to stay home from work, being that she had a new born child, and start her own child-minding business rather than return to her place of employment, in which case she would incur child care costs.
The learned judge found this to be reasonable in the circumstances. The Respondent resides in Kent, England, and in an Affidavit sworn September the 10th, 2006, the Respondent stated in part as follows:
“…paragraph 3: As a result of those start up fees and other expenses, including those related to this litigation, I took out a child- minding loan for the business in the amount of slightly more than 4,000 pounds. My husband and I had already used up all of our savings. I was able to claim some of my start up costs and ongoing expenses against that loan. However, I was also required to report that loan as income for the business. As a result, the gross income reported on the tax form includes both my actual income and the loan. The net income is the difference.
“paragraph 4: This made no difference with respect to my taxes, as I was still entitled to a personal exemption because my earnings are so low. I don’t believe that the loan, which will need to be paid back, would be considered income for support purposes. Even if it was, the net amount is still much lower than the amount the child support is currently based upon as decided by Justice Wood.”
She also notes, at paragraph 6, that she has provided the Appellant with a Direction allowing him to access those records directly, and it is noted that through that process, the Appellant was able to obtain the Respondent’s latest income tax return.
5It appears that in making his calculation for future support, the learned judge relied upon the Guidelines and projected the Respondent’s income, based on her latest month prior to the hearing in which she had earned from the child-minding business a significant increase over previous months (that was in November, 2005). Since her earnings for that month approximated 623 pounds, he projected this on a yearly basis, or a 12 month basis and used this to calculate the amount of child support payable. He did not allow the Respondent’s request for a cost of living reduction.
6We appreciate that the Appellant has the care and control of the two children of the marriage. However, in our view, the new evidence would not have caused Mr. Justice Wood to change his position in any way. The affidavit of the Respondent explains, to our satisfaction, the actual situation regarding the Respondent’s gross and net income.
7Accordingly, while we granted leave to file the new material, it does not convince us that Wood J. made an error in fact or law. We note his decision was based on the statutory provisions in the Ontario Family Law Guidelines.
8The standard of review for appeals from an Order of a judge is widely accepted to be whether or not the decision of the judge was clearly wrong. This standard applies both to findings of facts and to the application of legal principles. See, for example, Stein v Kathy K (The Ship), [1976] 2 S.C.R. 802. This is true even if the judge’s findings are not based on credibility and no oral evidence is heard. See Equity Waste Management of Canada v Halton Hills (Town) (1997), 35 O.R. (3rd) 321 C.A. See, as well, the case of Katsigiannis v Kottick-Katsigiannis 2001, 203 C.L.R. (4th) 386 O.C.A., in which the Court held that in an application, as in other cases, a judge’s decision is entitled to deference and should not be set aside unless he or she applied a wrong legal principle or made unreasonable findings of fact. Thus this standard of review applies even though this is an appeal from a decision made on an entirely written record.
9Wood J. did grant the Applicant’s request to vary the consent order to permit a sharing of future extraordinary expenses, subject to advance notice of a budget for each year claimed. The Court gave cogent reasons for refusing to make this contribution retroactive, denying the Applicant’s requests for joint control over the children’s educational fund and for reimbursement of $248.15 to the fund. Finally, while the Court did not grant any retroactive interest on alleged overdue amounts, it provided that future amounts of child support outstanding for more than 30 days, will bear interest at 5% per annum until paid.
10The decision of Mr. Justice Wood in this case is well-reasoned and supported by the evidence before him. The submissions of the Appellant at their core, represent an attempt to have this Court retry the case. There is, in our view, no misapprehension of the evidence, and no error in fact or law in respect of any of the issues raised by the Appellant.
11Accordingly, even considering and including the new evidence, it could not be said that the decision was clearly wrong, and the appeal therefore is dismissed.
12Dealing with the issue of costs, it is a duty upon us to be fair and reasonable with the parties and as well give an award of costs which would be within the expectation of the parties. The issues here were not large. The father had custody of the children and the wife was overseas. There was some difficulty with the production of financial records, without any doubt, and it is our feeling that the claim for partial indemnity costs at $4,297.00 is too high in the circumstances.
13It also appears, that for one reason or another, there may still be some arrears of support here, whether it be caused by the Respondent or the collection system, or what. We are reluctant to impose a substantial burden upon the Appellant who we note has had care and custody of the children, plus other children as well.
14In the circumstances we think that a sum fair to all the parties in the circumstances would be $1,500.00 inclusive of disbursements and GST.
MEEHAN J.
CHAPNIK J.
DONOHUE J.
Released: October 11, 2006
COURT FILE NO.: DC-06-078398-00
DATE: 20060912
ONTARIO
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE Newmarket, Ontario
B E T W E E N:
RENE JEANNOT LAFLEUR
Applicant (Respondent on Appeal)
- and –
VIOLA JOY DONOGHUE
Respondent (Appellant on Appeal)
ENDORSEMENT
MEEHAN, CHAPNIK, DONOHUE, JJ.
Released: October 11, 2006