Kelly v. Findlay, 2018 ONSC 3664

Kelly v. Findlay, 2018 ONSC 3664

CITATION: Kelly v. Findlay, 2018 ONSC 3664

DIVISIONAL COURT FILE NO.: 17-2338

DATE: 2018/06/14

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Thorburn, Gareau and LeMay JJ.

BETWEEN:

HEATHER LOUISE KELLY Applicant (Respondent)

– and –

SHAWN OSBORNE FINDLAY Respondent (Appellant)

John Merner, for the Applicant/Respondent Andrew West, for the Respondent (Appellant)

HEARD at Ottawa: June 11, 2018

LeMay J. (Orally)

1The Appellant, Shawn Findlay (“the Appellant”) and the Respondent, Heather Kelly (“the Respondent”) are the biological parents of a child, Lindsay, who is now almost twenty years old. The Appellant and the Respondent never cohabited and never married. Support has been paid by the Appellant to the Respondent since the child was born.

2The Appellant appeals from a Final Order of Ryan Bell J. made on August 17, 2017, and a costs endorsement issued September 13, 2017. The issues before us concern child support and the payment of extraordinary expenses and were originally brought before the Court by way of the Respondent’s Motion to Change.

3Specifically, the Appellant raises the following grounds of appeal:

(1) The Motions Judge failed to read the materials prior to the hearing and, as a result, this failure brings the administration of justice into disrepute.

(2) The Motions Judge failed to properly calculate the arrears that were payable and, in particular, did not consider the overpayments made by the Appellant in 2010 and 2011.

(3) The Motions Judge erred in awarding extraordinary expenses in the sum of $380.00 per month for horseback riding.

(4) The Motions Judge erred in her assessment of the amount that the Appellant should pay for university and tuition fees.

(5) The Motions Judge erred in not taking into account the fact that the Appellant is paying support on account of another child in the sum of $300.00 per month in making her award.

(6) The Motions Judge erred in her assessment of costs, and did not consider that success was divided on the motion.

4In addition, the Appellant seeks to introduce fresh evidence on this appeal. I will address that issue first.

The Fresh Evidence Application

5The test for the admission of new evidence is well known, and is set out in the decision in R. v. Palmer 1979 8 (SCC), [1980] 1 S.C.R. 759 at 775. The relevant passage reads as follows:

1. The evidence should generally not be admitted if by due diligence it could have been adduced at trial provided that this general principle will not be applied strictly in criminal cases and civil cases.

2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

3. The evidence must be credible in the sense that it is reasonably capable of belief; and

4. It must be such that if believed it could reasonably when taken with the other evidence adduced at trial be expected to affect the results.

6The Appellant seeks to introduce two records on this appeal. First, there are some banking records that the Appellant wishes to rely upon in response to the ones provided by the Respondent on the day that the motion was argued before the Motions Judge. The records that the Appellant is seeking to introduce relate to the bank account that he holds jointly with his current spouse. These records allegedly show the amounts that were paid in 2015 by the Appellant to the Respondent.

7The Appellant argues that these records should be received because the Respondent engaged in “trial by ambush” by filing a further Affidavit at the hearing of the motion. This Affidavit contained banking records from an account held jointly by the Appellant and the Respondent. The records were used to support the Respondent’s calculation of arrears. The Appellant did not seek an adjournment of the hearing in order to respond to these records.

8I decline to consider the new evidence as it does not meet the Palmer test. It was evidence that would have been available at the hearing of the motion to change, and there is no good explanation before us as to why this evidence was not provided at the motion to change, or an adjournment sought.

9The second piece of new evidence is a letter from former counsel for the Appellant to counsel for the Respondent. It is a letter that addresses the basis for an adjournment request that was granted by Justice Mackinnon in April of 2016. In essence, the Appellant is seeking to rely on correspondence between counsel to explain what Justice Mackinnon intended by the terms of her endorsement. This evidence is not admissible under the Palmer criteria for two reasons. First, it was available at the time the original motion was heard, and there was no good explanation for the failure to have filed it at the time. Second, the Appellant seeks to use this evidence to assert that the Motions Judge misapprehended the reasons for the order granting the adjournment. However, this evidence does not meet the second branch of the Palmer test. Correspondence between counsel will not usually explain the meaning of an endorsement issued by the Court, unless it was on consent.

10Having addressed the issue of the new materials, I will now address each of the substantive issues raised on the appeal.

Failing to Read the Materials

11It is clear on the record before the Court that the Motions Judge had only received the file the morning of the hearing and, in her words she had “not had an opportunity to review the materials in any detail.” However, it is also clear that the Motions Judge took the opportunity to both listen to the arguments made by the parties and to consider the materials that were before her. She also provided the parties with a detailed endorsement, outlining both her decision and the reasons for that decision.

12A judge who acknowledges that she has not had an opportunity to read all the materials does not bring the administration of justice into disrepute. There is no merit to this argument and I reject it.

The Arrears Calculations

13There are two issues that arise here. First, whether the motions Judge improperly failed to consider the arrears for 2010 and 2011. Second, whether the motions Judge made a calculation error for the arrears for 2015.

14On the first issue, the Appellant argues that the motions Judge should have considered the amounts he overpaid for 2010 and 2011. However, this assertion ignores an important fact. The Appellant did not bring a motion to change. This was the Respondent’s motion to change. It was originally brought in 2016. Normally, retroactivity is considered for three years prior to the application (see D.B.S. v. S.R.G (2006 SCC 37)). In child support cases, an award of more than three years is not seen as exceptional.

15However, in order to award retroactive support, or retroactively change the amount of support ordered, there must be an application before the Court for adjudication. In this case, the only application was that of the Respondent. Further, the parties appeared before Justice Mackinnon on April 26, 2016. In that appearance, Justice Mackinnon had granted an adjournment to “question on the new issues only relating to retroactivity to January of 2012”.

16There was no indication in any of the materials filed with the Court that a retroactive adjustment was sought for 2010 and 2011. Since the question was not before the Court, there was no error on the part of the motions Judge in declining to make any Order on account of it, and this ground of appeal fails.

17Second, there is the issue of the calculation errors that were allegedly made over the 2015 retroactivity. In my view, this issue is not properly before the panel as the Appellant had the opportunity to review the evidence provided to the motions Judge, and to make submissions on its effect. In any event, however, the procedures under Rule 25(19) of the Family Law Rules, O. Reg. 114/99 permit a party to seek a change in the Order where there has been a mistake. This provision certainly encompasses mathematical errors (see Henderson v. Henderson 2015 ONSC 2914). This ground of appeal fails, although I note that this procedure remains open to the Appellant to pursue given the fact that there may be a mathematical error in the motions Judge’s calculations.

Extraordinary Expenses for Horseback Riding

18The child engages in horseback riding at a very high level, and has done so for a number of years. The Appellant originally paid $380.00 per month towards these expenses. However, he unilaterally reduced this amount to $180.00 in September of 2014. The motions Judge restored the amount of $380.00 retroactive to September of 2014.

19The Appellant argues that the amounts payable for horseback riding are disproportionately high when accounting for all of the circumstances, including his level of income. Counsel argues that the Appellant would suffer hardship if he was required to pay these amounts. I disagree.

20I note that the motions judge concluded that the amount of $380.00 per month was the amount that the Appellant had been paying in 2010 and 2011. She rejected the higher amount of $450.00 per month sought by the Respondent and accepted that the Appellant should have continued to pay $380.00 per month.

21I agree. There was no basis for the Appellant to unilaterally reduce the amount that he was paying on account of extraordinary expenses. Further, the amount that he was paying previously is a prima facie indication of what his reasonable contribution to those expenses should have been and should continue to be.

22Finally, in terms of the undue hardship argument, I note two points. First, this is a high test to meet. Second, in this case the motions Judge was clearly aware of the income of the Appellant, and considered that fact, along with all of the other facts, in concluding that $380.00 per month was the appropriate amount to pay for horseback riding. I see no reason to interfere with that conclusion. This ground of appeal is rejected.

University Tuition

23The Appellant asserts that the motions Judge erred in directing him to pay university tuition for the child for three reasons.

24First, the Appellant argues that the Motions Judge did not consider the child’s obligation to contribute to her university education. I reject this argument. The motions judge directed that the Appellant pay one-third of the child’s university tuition, and required proof of enrolment before those amounts were paid. The fact that she found that it should be one third rather than one half shows that she was expecting a contribution from the child.

25Second, the Appellant argues that the child has unilaterally withdrawn from her relationship with the Appellant. In support of this argument, he points to the decision in Law v. Law, (1986), 1986 6291 (ON SC), 2 R.F.L. (3d) 458 (Ont. H.C.) cited by the trial judge. That case concerned a child who had made the decision to terminate her relationship with her father, but was still seeking a contribution from her father for her university education. In Law, the Court found that an adult child who unilaterally terminates a relationship with a parent should not then be entitled to claim support from that parent.

26That decision is distinguishable from this case. In this case, the child has never had a relationship with the Appellant. As a result, it was not her unilateral decision to terminate her relationship with the Appellant. The Appellant made the decision not to have a relationship with the child. Law is not applicable to the facts in this case, and I reject the Appellant’s argument on this point.

27Finally, the Appellant argues that the Court did not consider whether the child’s step-father also has an obligation to contribute to her support. I reject that argument as well. There is no evidence that the step-father and the Respondent are no longer cohabiting. As a result, there is at this point no separate obligation on the step-father to contribute to the child’s support. In any event, however, if the Appellant wishes to ask the Court to have the step-father contribute to the university tuition for the child, then he could have added the step-father as a party. He chose not to do so. Therefore, this ground of appeal also fails.

Support for a Second Child

28The Appellant argues that the motions Judge did not consider the fact that he pays support in the sum of $300.00 per month on account of another child and, as a result, the award in this case is disproportionately large.

29Again, I reject the Appellant’s argument. The amounts for university tuition, horseback riding and general support are comfortably less than $12,000.00 per year. As a result, the award is not disproportionate and I reject this ground of appeal as well.

Costs

30The motions Judge awarded $8,500.00 in costs for this Motion to Change. The Appellant challenges this award on the basis that success was divided, and on the basis that the award is disproportionate to the issues. I reject both arguments for the following reasons.

31First, Judges in the first instance have a wide discretion to fix costs. The scope of appellate review is limited to cases where the determination is plainly wrong, or the Judge fixing the costs has made an error in principle (see Boucher v. Public Accountants Council (Ontario) 2004 14579).

32Second, in any event I do not see that success was divided to the extent that the Appellant claims. I acknowledge, that the Appellant was successful on the motion on his position on the university tuition, and he was only required to pay a third. In addition, the Respondent did not get all of the money on the horseback riding that she was seeking. However, the Respondent attained considerable success in the issues of the arrears and the horseback riding. In any event, it is clear that the motions Judge did not award all of the costs that the Respondent was seeking.

33Finally, the motions judge carefully considered the submissions of the parties and the factors under the Family Law Rules in reaching her conclusions about the appropriate quantum of costs. I see no reason to disturb those findings.

34In the result the appeal was dismissed. In terms of costs to the appeal, considering the factors set out in the Rules, as well as the factors set out in Boucher v. Public Accountants Council, I am of the view that costs in the sum of $5,000 inclusive of HST and disbursements should be awarded in this appeal.

Thorburn J.:

35I have endorsed the record. The appeal is dismissed for the reasons read by LeMay J. on behalf of the panel. Costs in the amount of $5,000 are included and payable to the Respondent/Applicant Heather Kelly as per the reasons read earlier.

LeMay J.

I agree _______________________________

Thorburn J.

I agree _______________________________

Gareau J.