COURT OF APPEAL FOR ONTARIO

DATE: 20001219

DOCKET: M26050

RE: ERIC N. WHEELER (Appellant) v. LYDIA ADASSA WHEELER (Respondent)

BEFORE: OSBORNE A.C.J.O., AUSTIN and LASKIN JJ.A.

COUNSEL: appellant appearing in person

respondent appearing in person

HEARD: November 27, 2000

On appeal from the order of Justice Thomas M. Dunn dated October 21, 1999.

E N D O R S E M E N T

[1] Leave to appeal is granted, only on the issue of the quantum of child support.

[2] With the consent of the parties, the application for leave to appeal will be treated as the notice of appeal and the parties’ factums on the leave motion shall be taken as their factums on the appeal. Further, and again with the consent of the parties, we will decide the appeal without oral argument.

[3] The only issue on the appeal concerns the quantum of child support to be paid by Mr. Wheeler who is now retired. The procedural history of this matter can be briefly stated.

[4] On November 14, 1997, Mrs. Wheeler was granted interim custody of the sole child of the marriage and Mr. Wheeler was ordered to pay interim child support in the amount of $556 a month, in accordance with the child support guidelines, based on his annual income of about $67,800. Some time later (the precise date of the order is not revealed in the material), Thompson J. ordered Mr. Wheeler to pay child support in the amount of $553 a month.

[5] On October 21, 1999, on Mr. Wheeler’s motion to vary child support in light of his early retirement and reduced income, Dunn J. varied child support to $266 to be paid monthly from October 1, 1999 to March 1, 2000. As of April 1, 2000, he reinstated Mr. Wheeler’s child support obligations at $553 a month.

[6] On June 19, 2000, the Divisional Court (Carnwath, McRae and Sedgwick JJ.) dismissed Mr. Wheeler’s appeal. The material before the Divisional Court revealed that Mr. Wheeler retired early because an attractive retirement package was available and because of his deteriorating health. The motion record includes a doctor’s note dated May 17, 2000 which states that Mr. Wheeler was forced to retire early from teaching due to recurrent headaches and increasing hypertension.

[7] Mr. Wheeler contends that he is being discriminated against because of age and in that context raises a s. 15 Charter challenge against the order of Dunn J. On the view we take of this matter, it is not necessary to address that issue. Mr. Wheeler also argues that it is unfair to reinstate his child support payment at $553 a month as of April 1, 2000 because that amount is based upon his previous, that is pre-retirement, income. He contends that his sole income now is his pension. On the basis of his pension income, he contends that Dunn J.’s order is in error because it ignores the child support guidelines, which provide that his monthly support obligation should be $266, not $553.

[8] Mrs. Wheeler supports Mr. Wheeler’s position to the extent that she seeks only an order that child support payments continue in the amount of $266 a month in accordance with the child support guidelines, based on Mr. Wheeler’s current retirement income.

[9] In light of Mrs. Wheeler’s position, we do not think it makes sense to assume that Mr. Wheeler’s income will exceed his pension benefits as of April 1, 2000. We would, therefore, allow the appeal, set aside the order of the Divisional Court, and vary the order of Dunn J. by deleting that part of it requiring Mr. Wheeler to pay child support in the amount of $553 each month beginning April 1, 2000. Thus, Mr. Wheeler will be required to pay child support in the amount of $266 a month. Since it is not clear to us that there has been any overpayment of child support in the April to September 2000 period, we do not propose to address the issue whether Mrs. Wheeler should be required to repay Mr. Wheeler if he has in fact paid child support between April and September 2000. We are confident that the parties can resolve that problem directly.

[10] We would make no order of costs here, before the Divisional Court, or Dunn J.

“C.A. Osborne A.C.J.O.”

“Austin J.A.”

“John Laskin J.A.”