Ceci v. Lippa, 2009 CanLII 7761 (ON SCDC)

Ontario Divisional Court

DIVISIONAL COURT FILE NO.: DC-08-0010-00

DATE: 20090218

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J.S.C.J., SWINTON and KARAKATSANIS JJ.

B E T W E E N:

DARIO CECI

Appellant

Joel Skapinker, for the Appellant

• and -

TERESA LIPPA

Respondent

Frances M. Wood, for the Respondent

HEARD: January 19, 2009 in Brampton

Reasons for Judgment

1This is an appeal from the order of Snowie J. dated February 5, 2008 ordering that the respondent had no legal obligation to pay retroactive child support and ordering her to pay monthly support of $45.00.

2The appellant seeks to have the order set aside and in its place an order made that the respondent pay retroactive child support to the appellant for the period January 2007 to October 2007, the period of time during which the daughter lived with the appellant. More realistically, and given the manner in which the proceeding before the motions judge was conducted, the appellant says, the matter ought to be returned to the long motions list in Brampton following our setting aside of her order.

3Many of the facts are not seriously in dispute. There are two children of the marriage, Jessica, born October 9, 1986, and Christopher, born June 25, 1990. Both children resided with the respondent from the 1996 separation until December 2005. The appellant paid $400 per month in child support (these payments increased by $38 per month in 1998).

4In or about December 2005, Christopher began residing with the appellant. By a consent order of June 23, 2006, Van Melle J. ordered that neither party would pay support, medical and dental expenses would be shared, and arrears would be vacated.

5In or about January 2007, Jessica began living with the appellant. At a case conference in February 2007 before Seppi J., the respondent in this appeal (Lippa) was ordered to "serve and file a sworn financial statement, including her last pay stub for 2007, income tax returns and notices of assessment for 2006 and 2005 by no later than January 29, 2008 and shall produce and file her 2007 T4 as soon as she receives it."

6On February 5, 2008, the motions judge heard the appellant's (Ceci's) motion to vary the earlier consent order to order the respondent (Lippa) to pay retroactive and ongoing child support, change the primary residences of the two children to the appellant's home, and to order full financial disclosure from the respondent. Despite the fact that the respondent had not filed income tax assessments, as required by Seppi J.'s order responding disclosure, and despite the limited sworn evidence before her, the motions judge heard the motion, permitting information to either be handed up to her or given by way of submissions. Both parties were unrepresented at the hearing.

7At the conclusion of the hearing, the motions judge accepted the respondent's evidence that she had made contributions totalling $3600 in 2007 towards Jessica's braces and support paid to Jessica directly. The motions judge declined to order that the respondent pay retroactive child support and she found, on the basis of a pay stub dated October 19, 2007, together with the affidavit of the respondent that she did not work after that date, and that the respondent's income was $68,000. A 2006 T4 slip supplied by the respondent showed income of $72,482.79.

8The motion judge also declined to permit the appellant an employment expense deduction which, according to the material put forward by him, totalled somewhere between a low of $12,277.39 and a high of $14,342.36. She concluded that he had failed to provide an adequate breakdown of the expense to qualify under Schedule III of the Child Support Guidelines. She permitted, without reasons, $5000 for business expenses in fixing his income.

9Since January 2008, Jessica has been living with her mother, the respondent.

10In our view, the order of the motions judge cannot stand. We recognize the deference that must be given to a trial judge in relation to support orders (see Hickey v. Hickey, [1999] 2 S.C.R. 518). However, palpable and overriding errors have been made here.

11First of all, although there was some evidence to support many of the respondent's statements, it is important to distinguish between evidence and the oral unsworn submissions of unrepresented parties.

12Second, the motions judge erred in not considering whether there should be retroactive support for Christopher. The motions judge ruled that an order for retroactive support sought by the appellant was not required by the earlier consent order of Van Melle J. That order is no way precluded the motions judge from ordering retroactive support given the changed circumstances. Moreover, while the motions judge declined to order retroactive child support for Jessica because of the respondent's financial contributions, she gave no reason why there should be no retroactive child support for Christopher during the period when the two children were residing with the appellant.

13Third, the motions judge gave no reason why the employment expense of the applicant should be reduced as it was.

14Therefore, the appeal is allowed, the order of the motions judge is set aside and the matter is referred back to the long motions list. At the time of the appearance before the motions judge, the respondent had not filed her 2005 and 2006 income tax. Not only is the respondent ordered to comply fully with the order of Seppi J., but both parties are ordered to provide full up-to-date financial disclosure before the motion is reheard.

15The parties asked that they be allowed to make written submissions with respect to costs. Those submissions are to be made through the Trial Coordinator in Brampton within 30 days of the release of this decision.

Cunningham A.C.J.S.C.J.

Swinton J.

Karakatsanis J.