DATE: 20031106

DOCKET: C38444

COURT OF APPEAL FOR ONTARIO

RE: JOYCE MARY ERNYES (Applicant/Respondent in Appeal) and DENNIS RONALD RACHLIN (Respondent/Appellant in Appeal)

BEFORE: MORDEN, GILLESE and ARMSTRONG JJ.A.

COUNSEL: W. Douglas R. Beamish for the respondent/appellant in appeal

Barrie M. Hayes for the applicant/respondent in appeal

HEARD: October 24, 2003

RELEASED ORALLY: October 24, 2003

On appeal from the judgment of Justice Mary Jane Hatton of the Superior Court of Justice dated May 27, 202.

E N D O R S E M E N T

[1] The appellant concedes that the trial judge was entitled to make a finding of duress and to set aside paragraph 5 of the separation agreement as a consequence of that finding. He asks this court to hold, however, that the trial judge erred in law in granting the respondent child support retroactive to March 1, 1992, the date of separation.

[2] We see no error in the trial judge’s determination of this matter. The evidence is clear that, in the relevant period, the appellant enjoyed substantial income ($100,000 – $156,000 annual income) and had the ability to pay; the respondent mother struggled financially with a fraction of that income ($20,000 annual income), cashing in her RRSPs in order to pay bills, improve accommodation for the child and herself and to provide for the child’s ongoing expenses; and, the child Jason suffered need due to the appellant’s lack of financial support. The retroactive order was appropriate in light of these findings and the trial judge’s additional finding, which was fully justified on the record, that the appellant completely avoided his child support obligation by re-characterizing his repayment obligation as child support and that the respondent, therefore, bore all costs of maintaining the child. In the circumstances of this case, we are satisfied that there were good reasons for the respondent’s delay in bringing the child support proceedings.

[1] The appellant submits that paragraph 12 of the separation agreement cannot stand given the trial judge’s order to strike paragraph 5 of that agreement. We reject this submission. The effect of the order is to leave the $100,000 repayment obligation in place; paragraph 5 is struck solely for the purpose of making it clear that repayment could not be characterized as child support.

[2] Finally, the appellant argues that the trial judge was obliged to set child support based on the appellant’s reduced income in 2001. We disagree. The trial judge was entitled to set child support based on the evidence before her, including an assessment of whether the annual income for 2001 provided the fairest determination of income. If the appellant actually received or receives income that is less than the amount used as the basis for calculating child support, he is entitled to take steps to request that the child support obligation be adjusted accordingly.

[3] For these reasons, the appeal is dismissed with costs to the respondent fixed in the amount of $10,000 inclusive of disbursements and G.S.T.

“J.W. Morden J.A.”

“E.E. Gillese J.A.”

“R.P. Armstrong J.A.”