COURT FILE NO.: 27910/05

DATE: 20071229

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

ANA GABRIELA BULLOCK

Richard Fellman, for the Plaintiff/Applicant

Plaintiff

• and -

TERRANCE MICHAEL BULLOCK

Steven McCutcheon, for the Defendant/Respondent

Defendant

HEARD: November 27, 2007

REASONS FOR JUDGMENT

M.G.J. QUIGLEY J.

1The Applicant, Ana Gabriela Bullock, seeks leave to appeal to the Divisional Court from the temporary Order of Justice Pattillo, dated September 24, 2007. Not only does the Applicant claim that there is a conflicting decision by another Judge or Court in Ontario in the matter involved in this proposed appeal, but she says there is good reason to doubt the correctness of Justice Pattillo's Order and that the proposed appeal involves matters of such importance that leave to appeal ought to be granted. She claims that the requirements set out in rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 are met and that leave ought to be granted pursuant to s. 19(1)(b) of the Courts of Justice Act.

2The Respondent, Terrence Michael Bullock, seeks to uphold the Order of Justice Pattillo. He says that the Applicant's motion for leave to appeal should be dismissed with costs. He asserts the tests required to be met on this leave to appeal application have not been satisfied and in particular that Justice Pattillo was correct in his conclusion that the Applicant’s and Respondent’s middle daughter, Stephanie, who is 18 years of age, is not a Child of the Marriage within the meaning of either the federal Child Support Guidelines or s. 2 (1) of the Divorce Act. As such, he claims it was appropriate for Justice Pattillo to order child support for only the younger child, Bianca, and that his combined orders for child support and spousal support do not contain errors of sufficient gravity, if at all, to entitle the Applicant to leave to appeal. Instead, the Respondent claims that it is imperative that this matter proceed to trial as soon as possible where the credibility of the parties can be tested on the basis of a full hearing with all necessary evidence being before the court at that time.

Overview

3Mrs. Bullock commenced an application on November 8, 2005 seeking a divorce, custody of the children of the marriage, child support, spousal support and equalization of net family properties in addition to other corollary relief. Mr. Bullock served and filed his answer in January of 2006 along with a sworn financial statement. Both parties were represented at that time by different counsel. No further action was taken for the balance of 2006, but in early 2007 a Case Conference was held. However, no interim or temporary orders for custody or support were made, and in February of 2007 Mrs. Bullock simply brought a motion seeking temporary child and spousal support.

4On March 21, 2007, Madam Justice Van Melle issued an order adjourning the motion to May 23, 2007 and making provision in the interim for questioning between the parties and for the satisfaction of other disclosure requirements. The application for temporary child support and spousal support was then further adjourned from May 23 to a long motion scheduled for August 14, 2007. Each of the parties filed Factums prior to that date, but they were simple and rudimentary in nature, made few references to supporting evidence, provided no case law or references to jurisprudence or legislation of any kind, and, at least in the Applicant’s case, appeared to rely heavily upon computer generated child support and spousal support calculations in support of Mrs. Bullock's motion.

5The matter came before Madam Justice Coats that day. While Van Melle J. had permitted the parties to proceed with questioning in her March Order, and Mr. Bullock apparently attempted to do so, Mrs. Bullock declined to question Mr. Bullock. Her counsel explained this on the hearing of this leave to appeal application as a decision made to avoid the cost of questioning. Regardless, it did leave each of the preceding motions judges and this Court without tested evidentiary materials of the parties. Coats J. concluded that neither party was prepared for the motion. Accordingly, she turned that day’s proceeding into a comprehensive Case Conference, and adjourned the long motion to Monday, September 24, 2007. She set further disclosure requirements that both parties were to have satisfied prior to that date, principally requiring that each prepare and file a children’s budget. About two weeks later, however, on August 30, 2007, Mrs. Bullock served supplementary motion materials in which she sought joint custody of the two younger children of the marriage, Stephanie and Bianca. Their elder daughter, Adriana, who is currently 20 years old, was not included in that request. As well, Mrs. Bullock sought an order restraining Mr. Bullock's mobility with the children. However, no factums were filed with respect to the custody or mobility issues, nor was case law submitted or argued. Thus, the motion brought before Pattillo J. had as evidence only some financial information about each party, and their previously unchallenged affidavits.

6When the matter came before Pattillo J. on September 24, 2007, Mr. Bullock sought an adjournment on the basis that the disclosure was not complete (in particular he had not filed a children's budget as Coats J. had required, although his costs were detailed in the updated financial statement he filed), the questioning was not complete, the factums were not properly filed pursuant to the Rules and that there was inadequate information before the Court at that time to prevent an adjudication of Mrs. Bullock's motion for temporary child support and spousal support. Ironically, as events turned out, Mrs. Bullock pressed on, so Justice Pattillo heard the motion that day. In his endorsement written the same day, he granted a temporary Order regarding custody, access, child support and spousal support. He made a custodial Order, however, only regarding the youngest child, Bianca, who was 14 years of age. As well, his Order also established interim child support and spousal support that was to be payable by the Respondent to Mrs. Bullock commencing on the first of October 2007, but only with apparent reference to one child. It is from that order that Mrs. Bullock seeks leave of this Court to appeal.

Summary of Relevant Facts

7These parties were married in October of 1985, and they separated in 2003. As noted, there are three children of the marriage, namely, Adriana, Stephanie and Bianca. The girls are currently 20, 18 and 14 years of age respectively. Since separation, but in the absence of any court Order or written agreement between the parties, all three girls have resided approximately half-time with each of the parents. In their de facto shared custody situation, there were no orders made for interim or temporary custody or access until Justice Pattillo's Order was made in September.

8Even though he did not file a Children’s Budget as Coats J. had directed, Mr. Bullock did attest to paying most of the children's expenses and all of their special and extraordinary expenses, including their education costs. He provided sworn affidavit evidence to this effect, and several sworn financial statements that included this information. Mrs. Bullock has never questioned him on those affidavit or financial statements or filed any evidence to the contrary. Mr. Bullock has earned significant income in the past, but in 2007 his income declined to only $130,000 per year. He had earned more in prior years because of some successful investments that he had made, but he claims to have been forced to cash in on those investments in order to sustain his current living arrangements. Mrs. Bullock did not dispute this and as previously noted, chose not to take advantage of the prior court order which permitted her to question Mr. Bullock on his financial affairs.

9Mrs. Bullock graduated from dental school in Mexico, but she did not become licenced. She never practiced dentistry either in Mexico or here in Canada. Since coming to Canada she started working in the real estate industry and at one time was apparently making a very substantial income. More recently, however, the Respondent complains that she has not been working to her full potential but says that she has demonstrated by her past conduct that she potentially can earn significantly more than she presently does. While Mrs. Bullock claims in her most recent financial materials to have an income in 2006 of only some $21,000, the Respondent claims that she has received cash payments and bonuses from her involvement in the real estate industry that she has not reported for tax purposes, and he claims that she made a mortgage application in July of 2004 in which she apparently reflected an income of some $85,000.

10Given that this is a shared de facto custody arrangement, the analysis provided for in s. 9 of the Child Support Guidelines must be followed to determine the amount of child support payable. Assuming that only one child qualifies for support, given Mr. Bullock's income of $130,000 per year, the child support that would be payable by him is $1,106 per month. At her annual reported income of $21,618 per year, the amount of child support that would be payable by Mrs. Bullock is $185 per month. As such, the offset amount of $1,106 less $185 is $921 per month.

11In his Order, Justice Pattillo addressed questions of custody, child support and spousal support. Dealing first with the issue of custody, Pattillo J. agreed with the Respondent's position that it was inappropriate for the Court to make a custody order in respect of Stephanie, who is 18 years of age. While acknowledging that the evidence had indicated that Stephanie has special needs, given her age and the way the parties had cooperated to date, he did not think that such an order would be appropriate. He also declined to provide for a restraining order. He indicated that there was simply no evidence before him that would indicate that the Order requested by Mrs. Bullock was either necessary or appropriate.

12Justice Pattillo noted that the Applicant sought child support for two children totalling $1,760 per month based on the Respondent's income of $130,000 per year. Mrs. Bullock argued that Mr. Bullock's failure to file a children's budget as directed by Coats J. should virtually automatically result in the award of that amount of child support, but Pattillo J. concluded that the Respondent had effectively provided the information as directed, even if not in that form, insofar as the children's expenses were detailed in his financial statement of September 18 totalling $2,656 per month. It is true, however, that those expenses also include Adriana, the eldest 20-year-old daughter, and there was no apportionment of the expenses made between housing or food or clothing, or between the children. Nevertheless he accepted the Respondent’s submissions on those costs.

13In contrast, he indicated that he had difficulty not only in accepting the budgeted amounts reflected in the Applicant’s children's budget, but also in basing a spousal support award to the Applicant on her alleged income of $21,618 per year. He stated that in his view, Mrs. Bullock could have, and was capable of, earning more than the income ascribed to her, even though he did not impute to her a specific amount of income and used the parties’ incomes as filed for the purposes of determining an initial set off amount of child support for one child. At paragraphs [8] and [9] of his endorsement, Pattillo J. concluded as follows:

8Finally, in considering this matter, I am mindful of the fact that the Respondent has been paying $2000 per month since separation. For a significant time, this amount appeared to be satisfactory to the Applicant. Given that this is an interim order, in my view, on the evidence before me, the appropriate order is to maintain the status quo. Accordingly, I award the Applicant $1000 per month for child support and $1000 per month for spousal support for a total of $2000 per month, commencing September 1, 2007.

9In making this Order, I wish to make it clear that I have taken into account and relied on the fact that prior to this motion, the Respondent has paid all of the costs of the children as required over and above the $2000 he paid each month. I expect that to continue and see no reason why it will not continue.

Analysis

14There are two principal criticisms levied at Pattillo J.’s endorsement, and at the Order he made, as the foundation for this leave to appeal application brought by the Applicant. First, the Applicant asserts that he was wrong in deciding not to consider their second child, Stephanie, to be a child of the marriage for the purposes of either the Divorce Act, or federal Child Support Guidelines. More importantly, however, even if custody of Stephanie was not awarded on a shared basis, Mrs. Bullock claims that Pattillo J. failed to follow the method of analysis applicable to the determination of child support in shared custody cases under section 9 as mandated by the decision of the Supreme Court of Canada in Leonelli-Contino v. Contino, [2005] S.C.C. 63. As such, given that the Supreme Court of Canada was clear that the prescribed method of analysis as set forth in that judgment must be followed in determining child support under s. 9, the Applicant claims that the child support order made by the motions judge is necessarily fatally flawed. Moreover, to the extent that determination is incorrect, Mrs. Bullock claims that Pattillo J.’s spousal support award to her must also necessarily be flawed since the proper amount of spousal support payable to her can only be determined after the amount of child support properly payable in respect of the children has been determined. For all of these reasons, the Applicant claims that leave to appeal ought to be granted in accordance with rule 62.02(4) of the Rules of Civil Procedure, under either paragraph (a) or (b).

15The statutory framework governing appeals from temporary or interlocutory orders envisages that leave to appeal shall not be granted as a matter of course, but only where the requirements of Rule 62.02(4) are met. That standard requires one of two alternative grounds to be present before leave to appeal can be granted, and the onus is on the Applicant to meet the requirements of the leave to appeal tests. First, there must either be a conflicting decision by another Judge or Court in Ontario or elsewhere in the matter involved in the proposed appeal with it also being my opinion as the Judge hearing the motion that it is desirable that leave to appeal be granted. Alternatively, I may grant leave to appeal if it appears that there is good reason to doubt the correctness of the Order in question, and I am of the opinion that the proposed appeal involves matters of such importance that leave to appeal should be granted.

16I accept the submission of the Respondent that the wording of these provisions makes clear that it was the Legislature's intent to discourage the appeal of interim orders except in extraordinary circumstances, since the presumption is that leave is not to be granted unless the Applicant can meet one of those two tests, each of which on its own requires that two different distinct tests be satisfied. In Comtrade Petroleum Inc. v. 490300 Ontario Ltd., 1992 7405 (ON SC), [1992] O.J. No. 652 (O.C. (Gen. Div.), Div. Ct.), at page 4, Montgomery J. stated as follows:

The conditions for granting leave are conjunctive. A Judge hearing such an application must have good reason to doubt the correctness of the decision. He must also be satisfied that the matters involved are of "such importance" that in his opinion leave should be granted."... "an exercise of discretion, which has led to a different result because of different circumstances does not meet the requirement for a "conflicting decision". It is necessary to demonstrate a difference in principles chosen as a guide to the exercise of such a discretion. (my emphasis)

17As noted, to be successful on this motion, the Applicant bears the burden of showing that there is a conflicting decision by another Judge or Court of the matter involved in the proposed appeal. The Applicant has submitted that Pattillo J. made an error in finding that the middle child, Stephanie, age 18, is not a child of the marriage as defined by s. 2.2 (1) of the Divorce Act. The Applicant says it is apparent from the affidavit materials filed by the parties that Stephanie does meet that definition which provides, as relevant here, as follows:

“child of the marriage” means a child of two spouses or former spouses, who, at the material time, … (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

While I acknowledge that Stephanie is a child who has special needs and does require special education in the necessaries of life, a fact that was clearly recognized by Justice Pattillo as well, I accept the position of the Respondent on this point that the Applicant failed to advance satisfactory evidence before the motions judge to demonstrate that Stephanie is or was not able to withdraw from the charge of her parents, or that she is not able effectively to live on her own and obtain the necessaries of life. The mere fact that Stephanie requires special education, and that both parents briefly acknowledge this in the brief portions of their affidavits to which Applicant’s counsel referred in his argument on this motion does not determine the point. It does not appear to me from the record that was in front of Justice Pattillo that there was any evidence before him from which he could conclude that Stephanie was unable to withdraw from the charge of her parents. He specifically referenced the absence of evidence in his endorsement. The vigorous assertion by counsel that it is obvious that Stephanie meets the definition cannot, in the absence of supportive evidence addressing the elements of the definition, substitute for the absence of that evidence before Pattillo J. Accordingly, in my view, the Applicant has failed to satisfy the requirement for a "conflicting decision”, at least with respect to the question of whether Stephanie is a child of the marriage.

18The principal ground of attack of the Applicant on Justice Pattillo's order, and clearly the principal foundation for seeking leave to appeal, lies in his alleged failure to apply the principles enunciated in the Contino decision in determining the appropriate amount of child support payable under s. 9 of the federal Child Support Guidelines. Counsel for Mrs. Bullock argues before me that it is fatal post-Contino in determining child support under s. 9 not to consider, and not to specifically articulate, distinct reasons relating to all three of the separate steps involved in the Contino analysis as it applies to paragraphs (a), (b), and (c) of s. 9 of the federal Child Support Guidelines. First, he says that it is imperative that the motions judge determine what the income is of each of the parents, that he or she determine the child support payable based upon that amount of income for the number of children in question, and that he or she then determine as a starting point to the analysis mandated by paragraphs (a), (b), and (c), what the setoff amount would otherwise be. Only then, he asserts, can the motions judge proceed to determine the discretionary elements of a child custody award in a shared parenting circumstance as mandated by paragraph 9 (b) and (c).of the Guidelines.

19In contrast, the Respondent argues that Justice Pattillo did in fact consider the Contino decision and s. 9. The Respondent observes that Pattillo J. made specific findings of fact regarding the unique circumstances of this case and relied on the documentation submitted by the parties in reaching that conclusion. Indeed, the Respondent observes that Justice Pattillo did examine the actual child care expenses of each parent as is mandated by Contino.

20I disagree with the Applicant’s contention that Pattillo J.'s decision must necessarily be regarded by this Court as a conflicting decision within the meaning of Rule 62.02(4)(a). The notion of “conflicting decision” referenced in the rule appears to contemplate the articulation by the judge of legal principles or modes of analysis that conflict with those mandated by another decision or other decisions, as distinct from a decision which is “incorrect” owing to the Judge’s failure to correctly apply legal principles or modes of analysis established in another decision: see Comtrade Petroleum Inc., above. Otherwise, the separate articulation of descriptive language used in the two distinct tests set out in Rules 62.02(4)(a) and (b) relative to the character of the decision would appear redundant, and the Legislature would have used the same first element of the test, namely a “conflicting decision” and had the second elements of the two tests worded disjunctively. There would have been no need for the two separate (a) and (b) tests. That, however, is not the construction of the two subsections.

21Here, it is difficult to tell if Pattillo J. went through the full three-stage analysis mandated by Contino, but I disagree with the Applicant that a motions judge who fails to specifically outline a conclusion with respect to each of the three stages has necessarily issued “a conflicting decision”. If Justice Pattillo had articulated in his endorsement interpretive principles that were at variance from those mandated by Contino, for example, it may be that his decision would be a “conflicting decision” within the meaning of the rule. In contrast, if the prescribed methodology of analysis requires that the judge’s specific conclusion for each of those three stages be articulated in full and he failed to do that for each aspect of the three stage analysis, then it may be that there would be good reason to doubt the correctness of his decision, but in my view, in this latter case it would not cause his decision to be "conflicting" for these purposes. Here, Pattillo J. reached the conclusions he did entirely on the basis of the facts that he believed were before him. He propounds no new or revised legal principles for determining support amounts, for determining spousal support, if any, or for his conclusion that Stephanie is not a “child of the marriage”. As such, in my view, there is no merit to the Applicant's argument that Justice Pattillo's endorsement and the order that resulted from it constitutes a "conflicting decision" within the meaning of the first of the two tests on this leave to appeal application, and accordingly, to the extent it relies on that ground, this leave to appeal application fails.

22Turning to the second test, if the Applicant is to succeed on that ground, then not only must I have good reason to doubt the correctness of Pattillo J.'s decision, but as well, I must be satisfied that the matters involved are of general public importance relevant to the development of the law and the administration of justice, and not merely of particular importance only to these litigants. The issue should involve a question which requires resolution by a higher judicial authority: see Gresliz v. Ontario Legal Aid Plan, 1986 2749 (ON SC), [1986] O.J. No. 2380 (Q.L.) (Div. Ct.); Rankin v. McLeod, Young, Weir Limited, et al., [1986] O.J. No. 2380 (Q.L.) (O.H.C.J.).

23There is a certain attraction to the Applicant’s argument that there is good reason to doubt the correctness of Pattillo J.’s decision as it relates to child support in a shared custody situation to which section 9 of the Guidelines applies. With the greatest of respect to him, I say this not because I dismiss the Respondent’s claims that the learned motions Judge did consider and apply the three-stage analysis mandated by Justice Bastarache in Contino, but rather because the economy of reasons delivered by Justice Pattillo causes me to be uncertain whether he did in fact apply that three-stage test. It is not that his result is necessarily incorrect having regard to the facts that were before him, but that I find it very difficult to discern that he first determined the set-off child support amounts that would be payable under stage one of the Contino analysis, having first determined the income of each of the parties, and only then proceeded to exercise the judicial discretions which Contino recognizes are available to him in the second and third stages of the analysis.

24Counsel for the Applicant submits that the result reached by Pattillo J. could not have been reached had he followed this prescribed methodology, but I reject that argument. It is quite possible that the result reached by the motions judge would have been the same depending on his application of the stage one tests and the exercise of his discretion under the second and third stages of the analysis. The difficulty I have is that I cannot be certain from the reasons he provided that he did apply that methodology of analysis, and to that extent, in my view, his reasons are inadequate to permit meaningful judicial review: see R. v. Sheppard (2002), 2002 SCC 26, 210 D.L.R. (4th) 608 and Doucette v. Minister of Human Resources Development (2004), 2004 FCA 292, 245 D.L.R. (4th) 63. As such, I find myself compelled to conclude that the Applicant’s argument of the first leg of the second test in Rule 62.02(4)(b) has merit, if only because the limited reasons issued by Pattillo J. leave unanswered the question whether or not there is good reason to doubt the correctness of his decision. To the extent that question cannot be answered definitively in favour of the Respondent, it strikes me the benefit of the doubt should go to the Applicant. This, however, is not the end of the matter.

25Under that second test enunciated in the rule, even if there is reason to doubt the correctness of Pattillo J.’s order, the leave to appeal application must fail in this case on the second leg of that test. I am not satisfied that the matters involved here are of general public importance relevant to the development of the law and the administration of justice as opposed to merely being of particular importance only to these litigants. Moreover, in my opinion, Justice Pattillo’s order does not involve a question which requires resolution by a higher judicial authority – it requires resolution by a trial judge following a trial between these parties with full opportunity to assess the credibility of these parties and the evidence they proffer.

26Here, even though there was no prior “status quo” order of the Court, Justice Pattillo has essentially maintained the status quo of the parties relative to the shared custody of their children. It is true that in characterizing the elements of the support being paid as $1,000 of child support and $1,000 of spousal support, there is a tax consequence that will arise to the Applicant, but this is a result that would have and will inevitably arise in any event when a final spousal support order, if any, is made. Further, while it may be that Pattillo J.s order is incorrect to the extent it cannot be seen to strictly adhere to the Contino analytical framework, it was arguably correct with respect to Stephanie’s status, and once she is removed from the equation, the support that would be payable for one child, even based on a Contino analysis, and the spousal support ordered, may not be at material variance from where they would otherwise be fixed. Moreover, and of great importance here, is his finding in his reasons that in making his Order, he emphasized that he took into account and relied on the fact that prior to the motion, the Respondent had paid all of the costs of the children as required even over and above the $2,000 he paid each month. He further expressed his expectation that such payments by the Respondent would continue. Against that background and determination of fact by him, the further reconsideration of this matter on appeal could only result in the legal re-characterization of amounts, and the giving of legal status to them. Further, short of permitting new materials on the appeal, a full panel of this Court could only consider an appeal of this matter on the record and the same deficient evidentiary base and facta that were before the motions judge, a situation that is both unfortunate and undesirable, particularly where the full information could have been before the motions judge had the Applicant not insisted on proceeding on September 24. I reject the Applicant’s assertion that there is any aspect of this matter that is of such importance generally that a full panel of this court ought to be asked to hear an appeal in this matter. The prior status quo largely continues after Pattillo J.’s order as it did before. The full needs of the children are being addressed as a result of that situation and his ruling. There is no pressing need for this matter to be resolved by an appeal. Instead, what this matter requires, as the motions judge and the Respondent are both quick to recognize, is a trial at the earliest opportunity. Accordingly, the second branch of the leave to appeal test embodied in Rule 62.02(4)(b) also fails, and this leave to appeal application is dismissed.

27For the foregoing reasons this leave to appeal application is dismissed with costs to the Respondent. The Respondent provided a Bill of Costs at the conclusion of the hearing of this motion in which he claims fees on a substantial indemnity basis in the amount of $4,375.00, plus disbursements and taxes. In my view, this leave to appeal application was not without sufficient arguable merit that it ought not to have been brought, and I know of no aspect of the Applicant’s conduct that would merit an order for substantial indemnity costs in this case. Accordingly, costs are awarded to the Respondent on a partial indemnity basis only and in the amount of $2,900, plus disbursements and applicable taxes which shall be payable forthwith.