CITATION: Riecken v. Riecken, 2011 ONSC 3967
DIVISIONAL COURT FILE NO.: 167/10
DATE: 20110623
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, ASTON AND LEDERER JJ.
BETWEEN:
KAY RIECKEN
Applicant
(Respondent in Appeal)
– and –
SANDRA MARY NORMA RIECKEN
Respondent
(Appellant)
Evelyn Kohn Rayson and Eli Antel, for the Applicant (Respondent in Appeal)
Lorne Gershuny, for the Respondent (Appellant
HEARD at Toronto: June 23, 2011
ASTON J. (orally)
[1] Ms. Riecken appeals from the judgment of D. A. Wilson J. which ordered her to pay $22,953.44 to Mr. Riecken as an “overpayment of special expenses” relating to child support for their two children. More specifically, the issue on appeal is whether Ms. Riecken is responsible for sharing the cost of post-secondary school tuition fees paid by Mr. Riecken for their son Kai. The tuition amounted to $23,000 each year for three years.
[2] Within the context of a divorce proceeding, Mr. Riecken claimed that the appellant should share that cost with him under s.7 of the Child Support Guidelines. The only challenge to Ms. Riecken’s obligation to contribute to this cost, at the trial and on appeal, is that the costs were incurred after Kai had withdrawn from parental control and ceased to be a dependent child.
[3] There is some confusion concerning the position taken by Ms. Riecken because she appeared to rely on the Family Law Act rather than the Divorce Act. There are significant differences in the relevant wording of those two statutes and in the jurisprudence that has interpreted those provisions. In general terms, the Divorce Act affords a much broader definition of eligibility for child support.
[4] It is clear from the application by Mr. Riecken that he was seeking child support under an Amended Petition for Divorce, specifically requesting corollary relief under the Divorce Act. That relief included, first, Ms. Riecken’s proportionate share of the childrens’ extraordinary expenses in accordance with the federal Child Support Guidelines and second, an order that Ms. Riecken’s proportionate share of the childrens’ extraordinary expenses be retroactive to the day of the separation.
[5] In that same document, Mr. Riecken claimed similar alternative relief under the Family Law Act. However, that alternative relief claim was expressed to be “in the event that this Honourable Court does not see fit to grant a divorce judgment”. The divorce judgment was in fact granted after that claim had been severed from the other claims between the parties. In these circumstances, the subsequent child support order of the trial judge was a corollary relief order under the provisions of the Divorce Act, not an order under the Family Law Act.
[6] Section 2(1) of the Divorce Act provides the definition of “child” for the purposes of child support eligibility. It reads:
2.(1) In this Act,
‘child of the marriage’ means a child of two spouses or former spouse who, at the material time,
(a) Is under the age of majority and has not withdrawn from their charge, or
(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. (The latter being the provision that is applicable in this case).
[7] The case law is clear that educational purposes fall within the “other cause” part of the definition.
[8] The applicable standard of review is set out in Housen v. Nikolaisen 2002 SCC 33, [2002] 2 S.C.R. 235. Deference is given to findings of fact by the trial judge unless there is a palpable and overriding error. The standard of review on a question of law is correctness. In Hickey v. Hickey 1999 691 (SCC), [1999] 2 S.C.R. 518 at paras. 10-12, the Supreme Court of Canada discussed the deference that is owed to a trial judge in family cases relating to support orders. I will quote those paragraphs.
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. They must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given consideration 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.
There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error of law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently.
[9] The issue of whether Kai Riecken was eligible for child support under the Divorce Act, is essentially a question of fact. In this case, the appellant has failed to establish any error of law or error in principle on the part of the trial judge.
[10] It appears that the trial judge may have misapprehended one aspect of Kai’s evidence on the point about why he moved to England in May, 2004, but that fact is not material to the conclusion that he was a dependent child within the meaning of the Divorce Act having regard to all the other evidence. There was ample evidence upon which the trial judge could base her conclusion that Kai was a dependent child. His interest in dance went back to his high school days and the trial judge ultimately concluded that the three year course in England was a reasonable educational pursuit.
[11] It is also not insignificant that Kai lived with his mother, free of room and board, when he returned first returned from England in 2008. Recognition by Ms. Riecken that he was still unable to withdrawn from the charge and support of his parents, even after completing his dance studies in England, corroborates his status as a dependent.
[12] Essentially the appellant is asking this Court to re-try the case, weighing the evidence and substituting its own views for those of the trial judge. That is not the function of an appellate court. The appeal must be dismissed because the appellant has failed to show an error of law or legal principle, a significant misapprehension of the evidence or that the discretion the trial judge exercised on her findings of fact, is clearly wrong.
JENNINGS J.
COSTS
[13] Bearing in mind the principles enunciated by the Court in Boucher v. Public Accountants, having regard to the relatively small amount at issue in this appeal and the time taken in presenting it, we are of the view that the proportionality requires a modification of the sum put forward by the successful respondent. We fix costs at $2,500 inclusive, payable forthwith.
[14] I endorse the Appeal Book and Compendium, “This appeal is dismissed for oral reasons delivered today. Costs payable to the respondent fixed at $2,500 inclusive.”
ASTON J.
JENNINGS J.
LEDERER J.
Date of Reasons for Judgment: June 23, 2011
Date of Release: July 6, 2011
CITATION: Riecken v. Riecken, 2011 ONSC 3967
DIVISIONAL COURT FILE NO.: 167/10
DATE: 20110623
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, ASTON AND LEDERER JJ.
BETWEEN:
KAY RIECKEN
Applicant
(Respondent in Appeal)
– and –
SANDRA MARY NORMA RIECKEN
Respondent
(Appellant)
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: June 23, 2011
Date of Release: July 6, 2011