COURT FILE NO.: 13/09

DATE: 20090428

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JANET WILSON, LEDERMAN AND LOW JJ.

B E T W E E N:

MARZIEH BANO BAHADORI

Respondent/Appellant

• and -

MEHRDAD FAIZ SAMADZADEH

Applicant/Respondent

In Person

In Person

HEARD at Toronto: April 28, 2009

THE COURT.:

1The appellant wife appeals from the decision of Backhouse J. dated March 20, 2008. She ordered the husband to pay child support to the wife for the son Mehrtash, born September 17, 1984, in the amount of $250.00 per month on terms, and declined to order retroactive child support for the son and daughter.

2In this appeal, the appellant seeks child support for her son in the full amount of the Federal Child Support Guidelines, S.O.R./97-75 in the amount of $443.00 per month. She also seeks retroactive support for both of her children for the period March 2005 to March 2008, in the amount of $473.00 per month, claiming total child support arrears of $16,566.00.

3The respondent husband brought an application to vary the judgment of Beaulieu J. dated February 1996, requiring him to pay child support to the wife for his daughter, Mahsa, born August 6, 1982, and his son, Mehrtash. The husband sought an order to terminate child support for both children. He requested the termination of child support for the daughter because she had ceased attending school full-time and was 25 years of age. He sought termination of child support for the son because he was married, had received a bursary in the amount of $3000.00, and was working part-time while attending university.

4The husband earns $47,000.00 annually. The wife is self-supporting.

Standard of Review

5The decision of Housen v. Nikolaison, 2002 SCC 33, [2002] 2 S.C.R. 235 confirms the standard of review of a trial or motion judge’s decision on a question of law is that of correctness, and on a question of fact is palpable and overriding error. On a question of mixed fact and law, there is a more stringent standard. The court is to determine whether the question of mixed fact and law is closer to fact, or if there is an extricable principle of law. If there is an extricable principle of law, then that principle of law must be decided correctly (see para. 36-37).

6However, when the court is asked to review a decision regarding child support, considerable deference is owed to the trial judge. The Supreme Court in Hickey v. Hickey, [1999] 2 S.C.R. 518 at paras. 10-11, set out the standard of review in an appeal from a support order:

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.

Conclusions

Support of the Son

7The conclusion of the motions judge that the wife was entitled to reduced child support for her son in the amount of $250.00 per month was reasonable based upon the evidence. She imposed the condition that this support would continue for so long as the son was residing with the wife and attending full-time university.

8The son was enrolled in second year at York University attending on a full-time basis. The motions judge did not order full guideline support in light of the facts. She took into account the fact that the son was in receipt of the bursary of $3,000.00 for his studies and that he was working part-time. As well, the husband is paying the son’s car insurance in the amount of $140.00 per month. While the son had gone through a religious ceremony, the conclusion of the motions judge that the son was not married for the purpose of Canadian civil law was reasonable and supported by the evidence. He was living at home with his mother and not living with his wife or fiancée. In light of these factors, it was reasonable to order the child support for the son in the amount ordered.

The Claim for Support Arrears

9The appellant requests retroactive child support for the period March 2005 to March 2008 for both children.

10The evidence of the appellant before the motions court judge with respect to the circumstances of the children, their earnings, where they were living during this three-year period of time, as well as the contributions made by the parties to the support of the children was in conflict with the respondent’s evidence, and did not establish entitlement to retroactive support. In these circumstances, it was reasonable based upon the evidence before the motions court judge to dismiss the application for retroactive child support.

11For these reasons the appeal is dismissed. No order as to costs.

JANET WILSON J.

LEDERMAN J.

LOW J.

Date of Release: May 22, 2009

COURT FILE NO.: 13/09

DATE: 20090428

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT