Court File and Parties

2017 ONSC 586 DIVISIONAL COURT FILE NO.: DC-16-925-00 DATE: 20170124

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: PETER B. COZZI, Appellant AND: MIRANDA SMITH, Respondent

BEFORE: Kiteley, Kruzick, Myers JJ.

COUNSEL: J. Sobel, for the Appellant Unrepresented for the Respondent

HEARD at Oshawa: January 24, 2017

Endorsement

Kruzick J (Orally):

[1] Pursuant to an earlier order of the Court the panel heard three appeals today and they were heard together. There was no responding material filed and the respondent is not present. We were satisfied that she was served and had notice of this appeal.

[2] Mr. Cozzi, the appellant, seeks to set aside the order of McDermot J made on June 4, 2013 and the subsequent orders made on motions on October 24, 2014 and January 19, 2015.

[3] The trial judge found the appellant owed the respondent retroactive child support of $47,766.

[4] The appellant asks that if he is successful on this appeal that we replace the amount owing by him and substitute that order by finding the respondent owes him, the appellant, $13,812 by way of retroactive child support.

[5] In the calculations of retroactive child support, the trial judge relied on line 150 of the tax returns of the appellant. It is the appellant’s position that he and the respondent reached an agreement that the quantum of income for child support purposes would be based on the appellant’s income for support purposes determined by line 150 of the tax returns and the application of s.16 of the Federal Support Child Guidelines. Section 16 of the Guidelines provides for a two-step process for the determination of income and it reads:

“…Annual income is determined using the source of income set out under the heading “Total Income” in the T1 General Form, issued by Revenue Canada Agency and is adjusted in accordance with Schedule III.”

[6] The appellant argues that the trial judge erred in using line 150 income in his calculations and in failing to apply the provisions of s.16. The appellant argues that he is entitled to reduce his line 150 income for calculation purposes by deducting carrying charges and interest expenses, because he is self-employed and because he has such charges and expenses.

[7] In the appellant’s notice of appeal we were referred to paragraphs 230 to 256 of the Reasons of June 4, 2013. In reading the reasons of the trial judge, we do not find support for the appellant’s argument.

[8] In paragraph 233, the trial judge succinctly made the following finding:

“…At the end of the trial both parties agreed that past support would be based upon Mr. Cozzi’s line 150 income as set out in his income tax return filed from year to year. Any claim for imputed income was abandoned as were presumably any claims for removal of income, which was not previously deferred.”

[9] The trial judge clearly noted in the same paragraph, 233, that at trial the income analysis was not completed and also noted that there were no cross-examinations on income by the respondent.

[10] When line 150 income was agreed upon as being the formula for calculation of child support, there was obviously no need for the respondent then to deal with the issue.

[11] We find there is no reference in the trial record to the determination of income pursuant the two-step process of s.16.

[12] In paragraph 232 the trial judge referred to earlier orders made in 2007 and 2008 where the judges on those motions did not go beyond “the line 150 income” of Mr. Cozzi. He did the same.

[13] Accordingly the calculation of Mr. Cozzi’s retroactive child support for 2005 to 2012 was based on line 150 and as set out and calculated by the trial judge in paragraphs 251 and 252 of his reasons.

[14] Following the release of the reasons, at Mr. Cozzi’s request, the matter was brought back before the trial judge pursuant to Rule 25.19 of the Family Law Rules. The rule provides for changing an order for “fraud, mistake or lack of notice.” The appellant argues a mistake on the part of the trial judge.

[15] In his reasons of October 24, 2014 the trial judge reviewed the purpose of the rule. In paragraph 34 he found that he was not mistaken in his finding and concluded the parties had agreed not to go beyond the appellant’s line 150 income. He referred to the decision of Pollitt v Pollitt, 2010 ONSC 1617, 2010 O.J. 5905, S.C.J., finding that the onus of proving the validity of a deduction including carrying charges and interest charges as argued here, lie upon the payor. The Court noted that in the exchange at trial the trial judge clarified that line 150 income would be used in his calculation of retroactive child support. It was not until written arguments were submitted, after the close of trial, that counsel for the appellant claimed the additional deductions. See paragraphs 13 to 15 of the reasons of October 24, 2014.

[16] We also refer to paragraphs 37 to 39 of October 24, 2014 reasons. The trial judge in paragraph 39 summarized his analysis as follows:

“…Accordingly my review of the record that was available to me, indicated that there was an expressed or implied agreement made at trial that Mr. Cozzi’s line 150 income would be used to determine the retroactive claim for child support. There was no mistake of fact on the record.”

[17] In our review of the trial and motion records, we agree with the calculation and findings of the trial judge.

[18] The appellant argues that the trial judge erred in his application of the law to the facts, therefore mixed fact in law.

[19] In our review of the findings of fact and the law as it applied to the facts we find no palpable and overriding error in any of the three appeals.

[20] For these reasons, the appeal from the orders dated June 4, 2013, October 24, 2014 and January 19, 2015 is dismissed.

Kruzick J.

I agree _______________________________

Kiteley J.

I agree _______________________________

Myers J.

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