DATE: 2004-11-30

DOCKET: C41631

COURT OF APPEAL FOR ONTARIO

RE:

SCOTT WILSON BROWN (Applicant) (Appellant) – and – JOY MARGARET FERGUSON (Respondent)

BEFORE:

WEILER, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Scott Wilson Brown

the appellant in person

Joy Margaret Ferguson

for the respondent

HEARD:

November 18, 2004

On appeal from the order of Justice Ruth E. Mesbur of the Superior Court of Justice dated March 8, 2004.

E N D O R S E M E N T

[1] The appellant and the respondent lived together in a common law relationship for nine years and had two children. On March 2, 1998 the appellant was ordered to pay support for the children and his common law spouse. On June 27, 2002 the appellant’s application to vary the payment order was dismissed by Kitely J. The appellant brought another motion for variation in 2004. On March 8, 2004 Justice Mesbur reduced the appellant’s support obligations, but not to the extent that the appellant was seeking. The appellant appeals from this order and raises numerous grounds of appeal.

[2] This is essentially a fact driven appeal. Bearing in mind the high standard of deference owed to the findings of a judge at first instance, we propose to dispose of the numerous issues argued on appeal as follows. We disagree that the motions judge failed to follow the Child Support Guidelines in determining the appellant’s income for the purposes of support calculation. The motions judge followed the Guidelines. She held that Mr. Brown had more income than what Mr. Brown submits he has. For example Mr. Brown asserts that the application judge erred in stating that he had income of $53,000 for the year 2000. The application judge had the benefit of the reasons of Kitely J. who had previously denied Mr. Brown’s variation application and whose judgment was not appealed. Kitely J. stated in paragraph 5 of her reasons that, “In the year 2000, Mr. Brown’s stated earnings were a total of $53,000.” The appellant has not succeeded in persuading us that the figures used by the application judge respecting Mr. Brown’s income and in imputing income to him were demonstrably wrong.

[3] We would not interfere with the application judge’s reduction in support to the respondent by reducing it further. The appellant also submits that the application judge erred in removing a clause from the original support order that would reduce support by 0.50 for every $1 of income the respondent earned over $15,000 and eliminate spousal support if she earned income over $25,000. It was within the discretion of the application judge to delete this clause having regard to the fact that this order was made many years ago and in the intervening period it appears that the respondent has not earned income in excess of $20,000, as well as to the rising cost of living. We note that the appellant may, if he chooses, apply for a further variation of the support he is paying the respondent should there be a material change in her circumstances in the future.

[4] Similarly, we are not persuaded that the application judge erred in principle in deciding to reduce the spousal and child support payments as of the date of the hearing as opposed to the date of the application. The effect of the order was to reduce the appellant’s support obligations by over 60%.

[5] We now turn to the “Connecticut settlement.” On July 8, 2002 the appellant and respondent entered into an agreement respecting the settlement of the arrears of support owed to the respondent. The appellant complied with this agreement. Before the application judge, the appellant submitted that, in addition to the principle amount of the arrears, the settlement agreement included approximately $25,000 arrears of interest as well as $10,360 in orthodontic expenses. The application judge held that the Connecticut order referring to “all arrearages” included the arrears of interest. She specifically did not include the arrears of $10,360 relating to orthodontic expenses but gave no reason for this. The respondent submits that the reason for excluding the orthodontic expenses was because they were not included in the arrears being enforced by the Family Responsibility Office in Ontario and the settlement related only to those arrears. In our opinion, the arrears with respect to orthodontic expenses were encompassed by the phrase “all arrearages” and the trial judge erred in excluding this.

[6] Finally, the trial judge did not err in principle in declining to award costs to the appellant who was self-represented.

[7] Save as indicated, with respect to the $10,360 orthodontic fees, the appeal is dismissed. There will be no order respecting costs of the appeal.

“Karen M. Weiler J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”