Davidson v. Davidson, 2010 ONSC 1325

Davidson v. Davidson, 2010 ONSC 1325

CITATION: Davidson v. Davidson, 2010 ONSC 1325

DIVISIONAL COURT FILE NO.: DC-09-124

DATE: 20100318

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J.S.C., FERRIER and LEDERMAN JJ.

BETWEEN:

SHELLEY DAVIDSON

Applicant

(Respondent on Appeal)

– and –

EDWARD DAVIDSON

Respondent

(Appellant)

In person

Brigitte Gratl, for the Appellant

HEARD at Hamilton: February 24, 2010

REASONS FOR JUDGMENT

ferrier J.:

1The appellant Edward Davidson appeals from the order of Ramsay J. dated May 1, 2008, dismissing his motion to vary a final order for child support for two children.

Background

2On November 28, 2001, Kent J. made an interim order for child support of $446.00 per month.

3On December 19, 2001, Gordon J. made the interim order a final order.

4The appellant had been duly served with notice of the proceedings and the claim for child support but did not appear and filed no material. The quantum of child support was based upon imputed income of the appellant of $30,000 per annum.

5On October 25, 2007, the appellant launched his motion to vary, seeking to have the ongoing amount reduced and to have the accumulated arrears rescinded.

6The appellant has been in default since the orders were first made. He has paid only a few dollars in support. The arrears total $44,942.27 to December 31, 2009.

The Evidence on the motion before the Motions Judge

7Neither party was represented on the motion. No evidence was filed by the Respondent on the motion, although she was present, and made unsworn statements of fact and submissions.

8The only evidence was the uncontradicted affidavit evidence of the appellant. It is fairly summarized in the factum of the appellant as follows:

(i) The appellant is a former correctional officer.

(ii) Since February 1998, he has not held employment. Since that time, he has suffered from significant depression.

(iii) On November 23, 2001, the appellant was charged with fraud relating to the matrimonial home. The appellant was convicted by The Honourable Mr. Justice Gordon and sentenced to two years less a day. The appellant was in custody from June 15, 2005 to June 15, 2006, when he was released on bail pending his appeal. His appeal was allowed, the conviction set aside and an acquittal entered on April 30, 2007.

(iv) Between 1998 and the time of his motion, the appellant was twice committed to mental institutions, had problems with his driver’s licence and spent other time in jail and had involvement with the courts.

(v) At the time of the hearing of the motion, the appellant had an income of $1,009.00 per month in disability payments.

(vi) The appellant provided a statement from the Ministry of Community and Social Services dated July 12, 2007, showing that he had been found to be a person with a substantial disability entitling him to benefits, and a Statement of Assistance dated September 28, 2007, showing a monthly payment of $1,009.00. The statement of July 12, 2007, further corroborated Mr. Davidson’s deposition that he had been in receipt of Ontario Works benefits previously.

(vii) The appellant provided a letter from Dr. Poonam Sharma, Psychiatrist, which corroborated his evidence with respect to a longstanding depression. The letter stated that in Dr. Sharma’s opinion, the appellant is unable to work and not capable of handling any kind of gainful employment.

(viii) At the hearing of the motion, the respondent Shelley Davidson, who had not filed any material, was permitted to make oral unsworn statements, in part on unrelated matters in respect of net equalization of property. Her veracity was not tested by cross-examination.

(ix) The Motions Judge dismissed the appellant’s motion on May 1, 2008.

Fresh Evidence

9At the hearing of this appeal, counsel for the appellant brought a motion for leave to adduce fresh evidence.

10Although it was unlikely that the appellant could have met the test for the admission of fresh evidence, this Court permitted the evidence to be filed, for the following reasons:

(a) The documents merely corroborated what the appellant had attested to on the motion.

(b) The documents on their face appeared authentic.

(c) Several of the documents were notices of assessment from the tax department for the years following the orders of 2001, confirming his lack of income from employment.

(d) The appellant was not represented on the motion and he did not then appreciate the need for and the significance of corroborative evidence.

Additional Facts

11During the argument on the motion, the respondent told the Motions Judge that she had never received her equalization payment. Furthermore, she said that the appellant had sold the matrimonial home, worth $300,000, for $100,000.

12In dismissing the motion, the Motions Judge said this:

The respondent’s actions have been completely irresponsible and in keeping with the Axis 2 diagnosis presented by a psychiatrist in a letter dated April 28/08 he is not entitled to any relief with respect to arrears. I trust that FRO will continue to enforce them. I am not satisfied that his income has changed. Motion dismissed. Costs to mother fixed at $500 which should be added to child support arrears.

Issues on this Appeal

13Although the appellant raises many grounds of appeal and related issues, the only real question is whether the learned Motions Judge erred in failing to vary the support order in the face of the uncontradicted evidence that the appellant had had no self-generated income since 1998.

Standard of Review

14On a question of law the standard of review is correctness. In my view, the question of the weight to be given to the financial circumstances of a payor in these circumstances may well be a question of law.

15At the very least it is a mixed question of fact and law, in which case a palpable and overriding error by the Motions Judge permits this Court to intervene. (See: Houden v. Nikolaisen 2002 SCC 33, 2002 S.C.C. 33; (2002), 2 S.C.R. 235)

Analysis

16In the face of the uncontradicted evidence above referred to concerning the circumstances of the appellant since 1998, and his undisputed income level of $1,009 per month, it is incumbent upon the learned Motions Judge to explain why he was not satisfied that the appellant’s income had not changed, and why he concluded there should be no forgiveness of any arrears.

17The evidence was uncontradicted. There clearly has been a material change in the circumstances of the appellant, in that the original order was based on imputed income of $30,000 per annum whereas it is now clearly only $12,098 per annum. To ignore this change in circumstances as the learned Motions Judge did, is an error in law.

18Even if it can be said that the issue was one of mixed fact and law, the failure to consider the impact of the reduced income level is a palpable and overriding error.

19It appears to me that what happened here was that the learned Motions Judge accepted at face value the comments of the respondent that the appellant had in effect cheated the respondent in connection with the house proceeds and her entitlement to an equalization payment. Accepting those facts, he felt it was not a case for variation, nor for rescission of the arrears.

20This highlights the danger of judges simply accepting what unrepresented litigants say without insisting that their version of the facts be in an affidavit, leaving them open to cross-examination.

21On the hearing of the appeal, the respondent conceded she had never taken proceedings for an equalization payment. Furthermore, the appellant had a very different story concerning who was entitled to the proceeds of the sale of the house.

22No conclusion need be reached on the matter of the house proceeds. The point is that the Court, in a contested matter should proceed only on the basis of the evidence before it – not the untested or unchallengeable informal statements of fact made by a litigant.

23In this matter, we must ignore the questions related to the house and the equalization payment.

24To repeat, the only evidence upon which this Court can act is the uncontroverted evidence of the appellant.

Conclusion

25Thus, the only evidence being that described above, it is a clear case for a variation both prospectively and retrospectively.

26Based on the evidence, the appellant filed a chart, Schedule “A” to the Notice of Appeal, showing the appellant’s income during the relevant years to the end of 2008.

27The appellant collapsed an RRSP in 2003 receiving $57,166. Except for that year and except for some very nominal income from some part-time work, the only income he has had is from social welfare benefits of one form or another.

28In the same chart, the appellant set out the child support payable, but the figures are wrong to the extent that the calculations were based on support for one child only.

29I have applied the correct support figures per the guidelines. They are as follows:

2002

$78.00 per month

$936.00

2003

$860.00 per month

$10,320.00

2007

$10.00 per month

$120.00

2008

$161.00 per month

$1,932.00

2009

$161.00 per month

$1,932.00

TOTAL = $15,240.00

30Accordingly, I fix the arrears as of December 31, 2009 at $15,240.00.

31From January 1, 2010 to February 28, 2010, the amount payable is $161.00 per month, totalling $322.00.

32Going forward, the amount of child support payable is $161.00 per month commencing March 1, 2010.

Costs

33There shall be no order as to costs.

Ferrier J.

Cunningham A.C.J.S.C.

Lederman J.