COURT FILE NO.: DC-09-000-23-00

DATE: 20091208

DIVISIONAL COURT

ONTARIO SUPERIOR COURT OF JUSTICE

MATLOW, LOW & LINHARES DE SOUSA JJ.

B E T W E E N:

CAROL ANNE COTTER

Carol Anne Cotter, acting in person

Applicant (Respondent on Appeal)

• and -

ROBERT WASMUND

Robert Wasmund, acting in person

Respondent (Appellant on Appeal)

HEARD: September 24, 2009. at Newmarket

REASONS FOR JUDGMENT

M. Linhares de Sousa J.

Introduction

1The respondent (appellant on appeal), appeals to this court from the order of Shaughnessy J., dated February 23, 2009, and asks that it be set aside or, in the alternative, that it be sent back for a new hearing before another judge. He further asks that we reinstate the order of Mr. Justice Gunsolus dated July 30, 2008, which according to the respondent, would effectively result in the dismissal of the motion brought by the applicant (respondent on appeal).

2The applicant contests this appeal and seeks to uphold the order of Shaughnessy J. She also seeks an order prohibiting the respondent from bringing any further court proceedings without leave of this court.

The Order of Mr. Justice Shaughnessy

3The motion before Shaughnessy J. was brought by the applicant, seeking retroactive base child support for the years 2004, 2005, 2006, 2007 and 2008 in accordance with the Federal Child Support Guidelines, S.O.R./97-175, as am., ("the Guidelines") on grounds that the amount of child support which had been paid by the respondent for those years was lower than he should have been paying given his income for those years as finally disclosed in the litigation leading up to the motion being heard. The applicant also sought the payment of the respondent's proportional share of childcare expenses for those years based on the disclosed financial information.

4In his decision, after hearing the very lengthy submissions of both parties, who were unrepresented at the motion, Shaughnessy J. ordered that both retroactive base support and the proportional sharing of childcare expenses be paid by the respondent. Shaughnessy J. ordered the respondent to pay $10,000 to the applicant on account of retroactive base child support for the years in question pursuant to the Guidelines. He also ordered him to pay her the amount of $31,782.39 as his proportional share of the childcare expenses for the years in question, a total of $41,782.39, without interest, to be paid within 60 days. Shaughnessy J.'s endorsement provides some detail of how he arrived at those sums. He further ordered that the respondent pay costs of the motion, fixed at $750 within 30 days.

The Respondent's Motion for Leave to Allow Admission of Fresh Evidence and the Scope of the Appeal

5The respondent brought a motion at the commencement of this appeal for leave to admit fresh evidence to be tendered by him for use on this appeal. The fresh evidence he sought to tender was an updated and complete statement of support accruals and payments from the Family Responsibility Office for the respondent. The fresh statement covers the period from April 1, 2005 to July 1, 2009, whereas the statement which was before Shaughnessy J. when the motion was heard, was not complete and covered only the period April 1, 2005 to May 16, 2007.

6The respondent submits that this fresh evidence unequivocally demonstrates that he has overpaid the amount of $5,802 in child support, an overpayment which Shaughnessy J. refused to recognize because it was not supported by the evidence before him.

7After examining the fresh evidence and hearing from the applicant about the payments she received from the respondent for the period in question I agree with the respondent's submissions. Only with the fresh evidence could he establish, and Shaughnessy J. properly find, that he has overpaid the amount of $5,802 in child support.

8The more troubling question is why this evidence was not brought to the attention of Shaughnessy J.'s when the motion was argued. The respondent has correctly stated the test to be applied by this court in determining whether to permit the presentation of fresh evidence. In R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759 the Supreme Court of Canada enunciated that test as follows:

1. the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in criminal cases as in civil cases;
2. the evidence, to be admitted, must be relevant, in the sense that it bears upon a decisive or potentially decisive issue in the trial;
3. the evidence, to be admitted, must be credible, in the sense that it is reasonably capable of belief; and
4. the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

9Given my conclusions about this evidence as mentioned earlier, there is no question that this fresh evidence meets the requirements 2, 3, and 4 above. However, I was not convinced that this evidence could not have been produced at the hearing of the motion if the respondent had exercised due diligence.

10It is not the intention of this court to depart from the principles enunciated in R. v. Palmer, supra. However, the special circumstances of this case and a consideration of the Family Law Rules, O. Reg. 114/99, convince me to apply the "fresh evidence rule" more liberally than I might otherwise have done. Both parties were unrepresented on the hearing before Shaughnessy J. Both parties had the responsibility to ensure that a complete record was before the court. The respondent obviously did not realize that the letter he tendered was, to his prejudice, not up to date. Both parties acknowledged the correctness of the updated statement. One must assume that he would not have used the incomplete FRO statement if he had realized that it omitted information that was critical to his position. The primary objective of the Family Law Rules is to enable the court to deal with family law cases justly. It is the conclusion of this court that in order to reach a just and equitable disposition of the issues between the parties, the respondent ought to be permitted to tender the fresh evidence.

11The fresh evidence supports the respondent's contention that he is entitled to a credit for the overpayment of child support in the amount of $5,802. How he is to be repaid that overpayment will be dealt with below. The fresh evidence at this late date is a factor that this court will consider in its determination of the question of costs of this appeal.

12The scope of the respondent's appeal before this court needs clarification. In the factum filed by him on this appeal he disclosed that it was his intention not only to appeal the decision of Shaughnessy J., but also to appeal the decision of Mr. Justice Timms made at a case conference on July 3, 2008. Part V of the respondent's factum is devoted to submissions that Timms J. made a number of errors in the course of that case conference. The endorsement of Timms J. is found at tabs 13 and 14 of the respondent's appeal book and compendium of the appellant, volume 1. In his order Timms J. brought the quantum of child support up to the level justified by the respondent's income in accordance with the Guidelines and sent the question of retroactive child support and retroactive sharing of childcare expenses in accordance with the original trial decision of Perkins J., dated June 14, 2004, to be heard, on motion, in Whitby. That was the motion which came before Shaughnessy J. on February 23, 2009. The respondent, then sought leave to appeal the order of Timms J. which leave was refused.

13The respondent now requests that we uphold the July 30, 2008 order of Gunsolus J. which would effectively restore the rights and obligations of the parties to where they stood just prior to the order of Timms J. on July 3, 2008.

14It is improper for the respondent to attempt to do indirectly that which the court has ruled he cannot do directly. It has wasted the court's time and resources. It has also required, needlessly, the applicant to address the question of Timms J.'s order in her reply materials. This is also a factor that the court will consider in its determination of the question of costs. I conclude this discussion of the scope of this appeal by saying that this court can deal only with the appeal of the order of Shaughnessy J. There is no other appeal properly before it.

15I turn now to the merits of the respondent's appeal. As is often the case in family matters, it is relevant to put this appeal in the context of this matrimonial litigation. I intend to mention what might be considered relevant highlights of this litigation and not its minutiae. I do this not to needlessly dwell on the history of this case but for the benefit of any court which may deal with this matter in the future. I am not hopeful that the litigation will end here.

16The parties are the parents of three very young children who, since their separation, have been involved in and have conducted a shamefully high conflict litigation to the detriment of their children. There have been a large number of proceedings and court appearances. Their litigation has also substantially engaged the court system.

17A brief chronology is as follows. Approximately five years ago these parties had a six day trial before Perkins J. who made a final order on June 14, 2004. In his decision, Perkins J. dealt with the issues of custody of and access to the couple's three children, property, and child support which he ordered the respondent to pay in accordance with the Guidelines. There was no specific provision in his order with respect to the parties' proportional sharing of childcare expenses in accordance with the Guidelines. However, it is evident from his treatment of this subject at the end of his reasons, that he recognized these expenses, once determined, to be legitimate expenses to be shared proportionally by the parties in the future. It is also fair to say that after Perkins J. rendered his decision, the respondent was well aware that these expenses would have to be paid by him in the future in proportion to his income in accordance with the Guidelines.

18I also note that this fact was recognized by Timms J. in his endorsement of July 3, 2008. In the course of the hearing before him Shaughnessy J. also recognized that Perkins J. had held in his reasons that childcare expenses were legitimate expenses to be shared by the parties in proportion to their income in accordance with the Guidelines and that both parties were aware of this fact. He further recognized that Perkins J. did not have evidence of the specific cost of these childcare expenses, as they were to be incurred in the future. Accordingly, he could not therefore determine what those costs were at the time of his decision. I can find no error in this conclusion and inference made by Shaughnessy J.

19Subsequent to that decision the respondent launched a number of appeal proceedings. However, Perkin J.'s order was not altered in any of those proceedings and still remains in force.

20In April, 2006, the applicant commenced a motion seeking retroactive child support based on increases in the respondent's income since the trial before Perkins J. and which were not reflected in the level of base child support being paid by the respondent. She also sought from the respondent his proportional share of the childcare expenses which she had incurred to date and which she anticipated incurring in the future. It is reasonable to conclude that, as of the commencement of that motion in April, 2006, the respondent was put on notice of what was being sought by the applicant in her motion.

21The applicant's motion of April, 2006, for some reason, never progressed to a judicial determination. It was accompanied by a morass of procedural motions and cross-motions brought by the respondent. A number of case conferences took place in the proceedings.

22The applicant revived her motion in February, 2008, seeking the same relief she sought in her motion of April, 2006. The respondent then brought a cross-motion raising new issues for the court to consider, namely, custody of and access to the three children.

23A case conference was held on July 3, 2008, on the parties' motion and cross-motion before Timms J. As is clear from the respondent's own materials and the case conference endorsement of Timms J. of that date, that the respondent argued that the applicant's support motion should be stayed based on the grounds of lack of disclosure, undue delay and undue hardship upon him.

24Timms J. concluded that the motion should proceed on a peremptory basis. In addition, based on the evidence before him, Timms J. ordered the immediate increase of base child support to be paid by the respondent, in accordance with his current income and in accordance with the Guidelines.

25After this case conference, the respondent commenced various procedural motions during the months of July, October and November, 2008. By January, 2009, the applicant's motion had not yet been set down. On January 7, 2009, the matter was again before Timms J. who concluded that all necessary disclosure was complete and that the applicant's motion should be heard on a peremptory basis on February 23, 2009. Timms J. also permitted the respondent, once the applicant's motion was completed, to fix a date for a settlement conference on his own motion "if he has complied with all the outstanding orders" against him. Timms J. also prohibited either party from bringing any further motions "of any kind" pending the hearing and completion of the applicant's motion.

26The respondent sought leave to appeal the order of Timms J. which leave was refused. Shaughnessy J. heard the respondent's motion on February 23, 2009.

Standard of Review

27The test to be applied on this appeal is correctness on questions of law. With respect to findings of fact, an appellate court ought not to interfere with a motion judge's findings or inferences of facts unless it can be established that the motion judge made a palpable and overriding error in coming to the factual conclusion based on the evidence.

Disposition

28Apart from the question of overpayment discussed earlier and a calculation error which will be discussed below, I can find no error, either in law or in his findings of fact or inferences of fact, in the decision of Shaughnessy J. He correctly recognized that both the child support in question as well as the childcare expenses were justified in accordance with the Guidelines and recognized in the original order of Perkins J. There is also no error in his conclusion that the respondent knew since the order of Perkins J. that he was liable to pay the child support and the childcare expenses of his children. It is also evident from the transcript of the hearing, that Shaughnessy J. heard all of the respondent's arguments urging the court not to exercise its discretion to order retroactive payment of the child support and the childcare expenses. He gave the respondent a full and fair hearing. In the circumstances of this case, I can find no error in his decision.

29With respect to the respondent's specific submissions on this appeal I conclude as follows. Firstly, the respondent submits that Shaughnessy J. prejudged the case because he immediately commenced the calculation of the retroactive child support and childcare expenses before hearing his submissions. He submits that Shaughnessy J. essentially relied on the previous order of Timms J. to come to his decision rather than embarking on his own independent inquiry of all of the issues.

30This argument is not supported by a reading of the transcript of the motion. While it is true that Shaughnessy J. did dedicate a significant amount of the time in court to the calculation of both the retroactive child support and childcare expenses, it was necessary because the parties had failed to do this calculation in preparation for the motion. This is a task that the parties should have done prior to the motion rather than using valuable court time to do it. Nonetheless, Shaughnessy J. made no error in doing these calculations at the beginning of the motion so as to know what final amount is being asked to be paid or not paid. The applicant should have calculated the amount sought as retroactive payments and the respondent should have specified the amount, from which payment he sought relief on grounds of undue hardship. How could Shaughnessy J. determine the submissions of undue hardship made by the respondent if he did not know what final amount was sought to be paid or rescinded?

31With respect to the mathematical calculations undertaken by Shaughnessy J., the respondent submits that the motion judge made a mathematical error in dealing with the applicant's income for the year 2004. For that year Shaughnessy J. attributed an annual income of $40,000 to her. He then calculated the retroactive childcare expenses for that year based on that annual income. It is evident from reading the complete transcript that, because of some RRSP withdrawals made by the applicant in 2004, the annual income attributed to her for that year for purposes of calculating the proportional sharing of the parties of the childcare expenses should have been $89,049. This would result in a percentage of sharing of these expenses of 62% for the applicant and 37% for the respondent instead of the 57% for her and 43% for him used by Shaughnessy J. This results in the respondent's share of childcare expenses for 2004 being $4,261.99 instead of $6,565.78. This changes the total amount owed by the respondent for childcare expenses under the order of Shaughnessy J. to $29,478.60 instead of $31,782.39.

32Secondly, the respondent submits that Shaughnessy J. did not provide him with due process. A reading of the transcript indicates that this ground of appeal must also be rejected. The respondent was given due process. Shaughnessy J. heard all of the respondent's submissions on the Supreme Court of Canada jurisprudence, on the question of the lack of complete disclosure and lying to the court on the part of the applicant, on undue hardship on his part, on the errors made by Timms J. in the course of his case conferences, on whether the issues before the court were better dealt with by way of another trial or by way of a motion etc. The respondent was given every opportunity to make his arguments before Shaughnessy J. made his final decision.

33What the respondent was not granted was an infinite amount of time to make those arguments. Shaughnessy J. had to focus the respondent's oral arguments a number of times. I also note that the transcript shows that court did not rise that day until 6:15 p.m.

34Thirdly, the respondent submits that Shaughnessy J. erred in not ordering a trial of an issue instead of deciding the issues on a motion. I note that this submission was also made before Timms J. and refused. I can find no error in this conclusion in the circumstances of this case.

35Fourthly, the respondent argues that Shaughnessy J. erred in not concluding that the applicant's evidence in support of her motion was incomplete, faulty and contradictory. This submission has been raised by the respondent during his numerous "procedural" motions preceding the motion before Shaughnessy J. On the record, I can find no error in Shaughnessy J.'s conclusion that he had sufficient evidence to decide the motion and that another trial for these parties was not necessary. Nor would it have been desirable in my view.

36Fifthly, the respondent submits that Shaughnessy J. erred in his consideration of the law or lack of consideration of the law with respect to his argument of undue delay. He submits that, based on the Supreme Court of Canada's decision in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, Shaughnessy J. erred in granting the applicant her relief. That judgment establishes a list of factors which the court should consider in deciding whether to exercise its discretion to grant a claim for retroactive child support and extraordinary expenses such as childcare expenses. The factors include such things as the amount of delay and the reason for delay, the parties' conduct in contributing to the delay, the fact of whether a party is taken by surprise by the claim for retroactive support, the circumstances of the child, the debts incurred by a party as a result of the support not being paid, the benefit of the award to the children, a party's ability to pay an award of retroactive child support, and the hardship that such an award would cause, among others.

37Shaughnessy J. rejected the respondent's submissions to rescind the retroactive support after considering the history of the case, the respective earnings of the parties and their mutual obligations to support and care for their three young children, who have been the very vulnerable subjects of this very high conflict litigation and their knowledge of that obligation. He also considered the fact that the respondent, on his own admission which was also made before this court, has paid very little towards the childcare expenses of his three children since the order of Perkins J. I can find no error in Shaughnessy J.'s consideration of the relevant law and his application of it to the facts before him. The mathematical error, as mentioned above, should of course be changed in the respondent's favour.

38For these reasons the appeal is refused and the order of Shaughnessy J., dated February 23, 2009, is affirmed, except for the two changes mentioned above, namely that the respondent is to be given a credit of $5,802 for an overpayment of child support and the retroactive childcare expenses which the respondent is obligated to pay shall be fixed at $29,478.60 for the reasons discussed earlier. Furthermore, the overpayment of child support of $5,802 to be credited to the respondent is to set off against any amount outstanding owed by him to the applicant pursuant to any and all orders of the court that have not yet been paid, including any outstanding orders of costs.

39The respondent is currently under a prohibition by order of the court from bringing any further proceedings until he has complied with all outstanding orders of payment in this family law litigation. The court is of the view that this prohibition should continue and it is so ordered.

40The last issue is costs. If the parties are unable to agree on costs, submissions on costs may be made in writing and delivered to the Registrar at Newmarket within 30 days.

M. Linhares de Sousa J.

Matlow J.

Low J.