CITATION: Terracol v. Terracol, 2012 ONSC 2801
COURT FILE NO.: 11-DC-1713
DATE: 2012/05/11
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: THIERRY TERRACOL, Appellant AND GUYLENE TERRACOL, Respondent
BEFORE: Justices J. Wilson, Swinton and Lafrance-Cardinal
COUNSEL: Thierry Terracol, in person Gil D. Rumstein, for the Respondent
HEARD at Ottawa: May 8, 2012
E N D O R S E M E N T
The Court:
[1] The appellant Thierry Terracol appeals an order of R. Smith J. awarding child support for his two elder daughters, E. and M.
[2] In an appeal of a support order, an appellate court must give deference to the decision of the motions or trial judge, interfering only if there has been a error in principle or a significant misapprehension of the evidence, or the award is clearly wrong (Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 at paras. 10 and 11).
[3] We would not give effect to certain grounds of this appeal. There was no error of law in imputing an amount for rental income because the appellant’s friend lives rent-free in his home. We see no error in the motions judge’s decision to set the quantum at $200 per month less $600 for annual expenses, nor do we see any unfairness to the appellant because the judge fixed the quantum based on judicial notice about rental rates in Ottawa.
[4] The motions judge had discretion whether to award child support retroactively to June 1, 2008 for E., even though the respondent first raised the issue of child support for E. in January 2009 (see D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 at paras. 107 and 133). The motions judge concluded that the appellant “was fully aware when [E] moved in with her mother and therefore, I find that he had effective notice and was aware that he had an obligation to pay child support for [E.] from that date forward.” The evidence before the motions judge supports this conclusion.
[5] As well, we see no error in the way in which the motions judge calculated the child support for M. and E.
[6] The motions judge imputed income of some $19,399.00 to the appellant for 2009, when the appellant had a leave from work for 55 days. The appellant had arranged the leave in March 2008, when he was approved for Long-term Income Averaging (“LIA”). Accordingly, his income was averaged for the period from June 1, 2008 to June 1, 2009 to allow him to take a leave in the summer of 2009 to care for his infant daughter V.
[7] Paragraph 19(1)(a) of the Child Support Guidelines allows a judge to impute income if a payor is intentionally underemployed. There is no requirement of bad faith in order for this provision to apply. If a payor voluntarily reduces his or her income, the onus shifts to him or her to show that the income was reduced to meet the needs of a child (Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.) at paras. 36 and 38).
[8] The motions judge held that there was “no evidence” that the reduction in the appellant’s income was required to meet V.’s needs. However, there was evidence in the record showing that the appellant sought the leave to care for V. and to allow his wife to engage in a website design business. There is also evidence that his wife earned $12,400 from that business in 2009.
[9] We are satisfied that the motions judge made a palpable and overriding error in concluding there was no evidence that the appellant took the leave to meet V.’s needs. Therefore, it is for this Court to determine, on the basis of the evidence, whether it was reasonable for the appellant to reduce his income for the 55 day period in 2009 in order to care for V. (Burke v. Burke, 2005 NSSF 11 at para. 16).
[10] Having regard to all the circumstances, it would not be reasonable to impute income to the appellant in 2009 for the period he participated in the LIA. It was conceded by the respondent in her factum (at p.6):
Upon conclusion of his parental leave in December 2008, the Appellant wanted more time with his daughter and to assist with the household responsibilities. The time off in the ensuing summer allowed him to care for his daughter, [V.], to spend more quality time with [E.] and [M.] during their summer vacation and allowed his wife to focus on her business in website design.
[11] Moreover, the appellant made these arrangements long before he had any indication that the respondent would be seeking child support for E. – indeed, he applied months before E. started living full-time with the respondent, rather than continuing the shared custody arrangement that had been in place for many years. There is no suggestion that the appellant made these arrangements for the LIA with the intention of avoiding his child support obligations.
[12] Therefore, the appeal is allowed with respect to the LIA issue. Paragraphs 3 and 4 of the order are set aside, and child support is to be recalculated on the basis that the appellant’s 2009 income is reduced by the imputed income of $19,399.00 – that is, on the basis of an income of $63,276.00. If the parties are unable to agree on the re-calculation of support for 2009, this issue only may be determined on a motion before a judge in Ottawa. The balance of the appeal is dismissed.
[13] Given the appellant’s success on the LIA issue, we would also set aside paragraph 5 of the order, which awarded costs to the respondent. The motions judge made that order on the basis that success was divided, but the respondent was more successful. With the variation of income downward because of the LIA issue, success on the motion before the motions judge was divided, and therefore, each party should bear his or her costs of the motion.
[14] After preliminary submissions on the costs of the appeal, we are of the tentative view that no costs should be awarded, as success in this appeal was divided. However, if there were offers to settle that might affect this preliminary conclusion, the parties may make brief written submissions within 30 days, to be sent to the Registrar of the Divisional Court in Toronto to the attention of John Reece.
J. Wilson J.
Swinton J.
Lafrance-Cardinal J.
DATE: May 11, 2012