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MacKinnon v. MacKinnon
[Indexed as: MacKinnon v. MacKinnon]
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75 O.R. (3d) 175
[2005] O.J. No. 1552
Docket: C41607
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Court of Appeal for Ontario,
MacPherson, Cronk and Lang JJ.A.
April 26, 2005
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Family law -- Support -- Child support -- Child care expenses
-- Child care expense not having to be significant or
extraordinary before it is shared by parties in proportion to
their incomes under s. 7(2) of Child Support Guidelines --
Section 7 only requiring that such expense be necessary and
reasonable -- Federal Child Support Guidelines, SOR/97-175, s.
Family law -- Support -- Spousal support -- Wife applying for
spousal support in response to husband's application for
divorce in early 2002 -- Trial judge refusing to award spousal
support for 2002 and 2003 -- Wife's appeal allowed -- Trial
judge erroneously characterizing support for period between
application and trial as "retroactive" -- Applicant for spousal
support presumptively entitled to prospective support from date
of notice that support claim is being pursued.
The parties married in 1984, separated in 2000 and divorced
in 2004. The husband paid spousal and child support from the
date of separation in July 2000 until November 2001, but failed
to pay sufficient support in 2002 and 2003. In those two years,
the wife earned about $33,000 and received about $22,000 in
government benefits and credits, while the husband earned
$441,928 in 2002 and $327,146 in 2003. From August 2000 to
October 2003, the wife sent several letters to the husband
unsuccessfully seeking full financial disclosure. In response
to the husband's application for a divorce in March 2002, the
wife applied for [page176] spousal and child support. The trial
judge dismissed the wife's claim for spousal support for 2002
and 2003, characterizing that claim as one for retroactive
support. She found that the wife's needs had been adequately
met during those years and concluded that the only purpose of
an award of retroactive spousal support would be to
redistribute capital. She awarded spousal support o f $5,000
monthly beginning in January 2004. The trial judge dismissed
the wife's claim for a proportionate sharing of childcare
costs related to the wife's employment under s. 7 of the
Federal Child Support Guidelines as she did not consider the
expenses claimed to be "extraordinary" in the context of the
quantum of child support ordered. The wife appealed the denial
of "retroactive" spousal support and the denial of a
proportionate sharing of childcare costs.
Held, the appeal should be allowed.
The trial judge erred in characterizing the wife's request
for 2002 and 2003 support as a request for retroactive spousal
support. Post-application support is not retroactive support.
Absent any unusual reason arising from the factors and
objectives set out in the Divorce Act, R.S.C. 1985, c. 3 (2nd
Supp.), an applicant who requests financial disclosure in
preparation for the negotiation or litigation of a support
claim and who then proceeds reasonably to a disposition of the
claim is presumptively entitled to prospective support from the
date of notice that a support claim is being pursued. There
were no circumstances in this case that supported a departure
from the usual commencement date for support. The wife
established entitlement and need, and the husband had the
financial means to pay spousal support and knew that spousal
support would be decided at trial. In such circumstances, there
was no reason to relieve the husband from his responsibility to
pay spousal support.
The wife incurred babysitting and summer camp costs during
the summer months of 2002 and 2003, when she earned most of her
income. The trial judge erred in her determination that a s. 7
expense must be a significant or extraordinary one before it is
shared by the parties in proportion to their income. No such
requirement is set out in the Guidelines. Section 7 only
requires that such an expense be necessary and reasonable.
There was no evidence that the wife's childcare costs were
anything other than reasonable and necessary for the wife to
earn her income.
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Horner v. Horner (2004), 2004 34381 (ON CA), 72 O.R. (3d) 561, [2004] O.J. No.
4268, 2004 34381 (ON CA), 245 D.L.R. (4th) 410, 6 R.F.L. (6th) 140 (C.A.);
Marinangeli v. Marinangeli (2003), 2003 27673 (ON CA), 66 O.R. (3d) 40, [2003] O.J.
No. 2819 (C.A.); Walsh v. Walsh (2004), 2004 36110 (ON CA), 69 O.R. (3d) 577,
2004 36110 (ON CA), [2004] O.J. No. 254, 46 R.F.L. (5th) 455 (C.A.), supp.
reasons 2004 24259 (ON CA), [2004] O.J. No. 1443, 6 R.F.L. (6th) 432 (C.A.), revg
[2003] O.J. No. 825 (S.C.J.), distd
Other cases referred to
S. (L.) v. P. (E.), 1999 BCCA 393, [1999] B.C.J. No. 1451, 67 B.C.L.R. (3d)
254, 1999 BCCA 393, 175 D.L.R. (4th) 423, 50 R.F.L. (4th) 302 (C.A.) [Leave to
appeal to S.C.C. refused (1999), 252 N.R. 194n]
Statutes referred to
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)
Rules and regulations referred to
Federal Child Support Guidelines, SOR/97-175, s. 7 [as am.]
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APPEAL from the order of Marshman J. of the Superior Court of
Justice, reported at 2004 5859 (ON SC), [2004] O.J. No. 374, [2004] O.T.C. 134
(S.C.J.), with respect to spousal support and sharing of
childcare costs. [page177]
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Denis E. Burns, for appellant.
Terry W. Hainsworth, for respondent.
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The judgment of the court was delivered by
[1] LANG J.A.: -- Debra MacKinnon appeals from the judgment
of Marshman J. on two issues: the trial judge's denial of
"retroactive" spousal support and her denial of a proportionate
sharing of childcare costs related to the wife's employment.
[2] Ms. MacKinnon (the "wife") sought spousal support for the
two-year period between her application for spousal support and
its disposition after trial. In those two years, 2002 and 2003,
Ms. MacKinnon earned about $33,000 while Mr. MacKinnon (the
"husband") earned $441,928 in 2002 and $327,146 in 2003. The
wife also sought an order that the husband pay his
proportionate share of childcare expenses from 2002 onwards.
- Family History
[3] The parties married in 1984, separated in 2000, and
divorced in 2004. They had four children, born in 1987, 1989,
1992 and 1994.
[4] In 1984, when the parties married, the wife was a
registered nurse working in a coronary care unit. The husband
had just completed medical school. Until 1992, the husband
worked to complete his qualifications as an anaesthetist. Both
during his training and afterwards, the husband worked
extremely long hours.
[5] By agreement, the wife structured her employment to
accommodate her primary responsibility for the four children of
the marriage, two of whom had special needs. After the birth of
their first child, she left her position as a clinical care co-
ordinator to work part-time as a casual nurse. She then
returned to full-time work until the birth of their third
child, when she again reverted to part-time employment.
[6] By the time of the trial, the wife was a 47-year-old
nurse working on a part-time basis and the husband a 43-year-
old anaesthetist. Their four children ranged from 16 to nine
years of age.
[7] From their separation in July 2000 until November 2001,
the husband paid spousal and child support. He did so primarily
by depositing about $7,500 monthly into the partiesAE joint
account and by leaving the matrimonial home (worth
approximately $410,000) for the use of the wife and children.
When the husband was not paying sufficient support in 2002 and
2003, the wife received about $22,000 in government benefits
and credits. [page178]
[8] From August 4, 2000 to October 2003, the wife sent
several letters to the husband unsuccessfully seeking accurate
financial disclosure.
[9] In response to the husband's application for a divorce
in March 2002, the wife applied for spousal and child support
under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).
- The Trial Judgment
[10] At trial, the parties agreed to the sale of the
matrimonial home. The trial judge ordered the husband to pay an
equalization payment of $49,602.68, primarily by assuming
liability for the partiesAE joint lines of credit. She ordered
child support from January 2002 in the amount calculated under
the Federal Child Support Guidelines, SOR/97-175 (the
"Guidelines"), which resulted in $36,747 of accumulated child
support arrears. The trial judge also awarded prospective
Guidelines child support of $5,794 per month. She dismissed the
wife's claim for a proportionate sharing of the children's
expenses under s. 7 of the Guidelines. On the issue of spousal
support, she dismissed the wife's claim for 2002 and 2003 but
awarded spousal support of $5,000 monthly beginning in January
[11] On the dismissal of spousal support for 2002 and 2003,
after reviewing the decisions of this court in Walsh v. Walsh
(2004), 2004 36110 (ON CA), 69 O.R. (3d) 577, [2004] O.J. No. 254 (C.A.) and
Marinangeli v. Marinangeli (2003), 2003 27673 (ON CA), 66 O.R. (3d) 40, [2003] O.J.
No. 2819 (C.A.), the trial judge held that it was not
appropriate to award spousal support for those years. She
considered the factors referenced in Marinangeli as adapted
from S. (L.) v. P. (E.), 1999 BCCA 393, [1999] B.C.J. No. 1451, 67 B.C.L.R.
(3d) 254 (C.A.). Those factors include need and
corresponding ability to pay; improper conduct by the payor
spouse; need to encroach on capital or incur debt; excuse for
delay in bringing the application; notice to the payor spouse
of an intention to pursue support, and unreasonable burden on
the payor spouse.
[12] The trial judge concluded that the wife's needs had
been adequately met during 2002 and 2003 because she and the
children had the use of the matrimonial home and because the
wife received substantial government benefits and tax credits
as a result of her relatively low income in those two years.
She also found that an order for retroactive spousal support
would be an "unfair burden" on the husband, given his
"financial circumstances" and the wife's lack of need. She
noted that the wife had not encroached on capital or incurred
debt during the two-year period. The trial judge concluded
that: "the only purpose of an [page179] award of retroactive
spousal support would be to redistribute capital". Her reasons
do not identify anything in the husband's financial
circumstances that raised a concern about his ability to pay or
any reason why the husband should be entitled to keep any
amounts that he would otherwise have paid for spousal support.
[13] On the question of blameworthy non-disclosure or
improper conduct, noting the husband's two moves between
cities, the trial judge said: "I am not prepared to find blame
on the part of the husband resulting from his failure to make
financial disclosure." On the question of delay, she held that
delay was not a factor because the wife had given notice from
the outset of her intention to pursue support and her need for
financial disclosure.
[14] The trial judge declined to order a sharing of special
expenses for the children because she did not consider the
expenses claimed to be "extraordinary" in the context of the
quantum of child support ordered. On the specific issue of
childcare expenses -- the only add-on under appeal -- the trial
judge said that if she had found that the wife incurred
"significant daycare expenses ... for the purposes of
pursuing her own employment, I would have required the husband
to pay his pro rata share". She concluded, however: "that was
not the case".
- Standard of Review
[15] A court should rarely interfere with a trial judge's
broad discretion with respect to spousal support.
[16] In Marinangeli, Weiler J.A. said this about the standard
of review [at p. 51 O.R.]:
There is no issue as to the standard of review. Appellate
courts should not overturn support orders unless the reasons
disclose an error in principle, a significant misapprehension
of the evidence, or unless the award is clearly wrong: Hickey
v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, 172 D.L.R. (4th) 577. More
recently, in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235,
2002 SCC 33, [2002] S.C.J. No. 31 (QL), the Supreme Court held that
absent the judge at first instance committing an error of law
by failing to apply the correct legal standard, appellate
intervention in a judge's findings of fact is only
appropriate where there has been a "palpable and overriding
error" and that the standard of review for inferences of fact
is also "palpable and overriding error".
- Analysis
[17] I am of the opinion that the trial judge erred in
characterizing the wife's request for 2002 and 2003 support as
a request for retroactive spousal support. I am also of the
opinion that the wife was entitled to a proportionate sharing
of the childcare expenses from 2002. [page180]
(i) "Retroactive" spousal support
[18] In fairness to the trial judge, who gave otherwise
cogent and correct reasons on a variety of issues, the question
of spousal support for the two-year period pending the trial
was apparently characterized by both counsel at trial, as it
was on appeal, as a claim for retroactive support. In my
opinion, however, this case does not raise a question of
retroactive support.
[19] The wife made several requests for financial disclosure
from the husband from 2000 onwards and initiated her
application for child and spousal support in May 2002 in
response to the husband's March 2002 initiation of
proceedings. That claim sought support, which the parties
agreed would be treated on a calendar year basis. Accordingly,
as is evident from the reasons for judgment, the issue before
the court was prospective support from and including 2002.
There was no issue about pre-application retroactive support.
[20] These facts take this case outside the authorities
argued before the trial judge, which dealt only with
retroactive support. The primary authority, Marinangeli,
involved a claim for support retroactive to 18 months before
the first demand for financial disclosure and two years before
the date of application for support. S. (L.), the case that set
out the principles for retroactive support relied upon in
Marinangeli, was also quite different. In that case, in a 1997
application, the mother requested child support retroactive to
- Walsh, another case relied on by the trial judge,
considered a wife's 2002 request for support retroactive to
- Horner v. Horner (2004), 2004 34381 (ON CA), 72 O.R. (3d) 561, [2004] O.J.
No. 4268 (C.A.) involved a 2001 demand for financial disclosure
and an application for support retroactive to January 2000.
[21] These cases all raise different considerations than did
Debra MacKinnon's request to be awarded spousal support for
2002 and 2003. Post-application support is not retroactive
support that requires a Horner analysis. Indeed, in Horner,
Weiler J.A. noted that "[t]ypically any increase in support
takes effect from the date of the application or from the date
of demand for financial information" (para. 73). This case was
such a typical application.
[22] Absent any unusual reason arising from the factors and
objectives set out in the Divorce Act, an applicant who
requests financial disclosure in preparation for the
negotiation or litigation of a support claim, and who then
proceeds reasonably to a disposition of the claim,
presumptively is entitled to prospective support from the date
of notice that a support claim is being pursued.
[23] Such a presumption serves to encourage payors to make
early and accurate financial disclosure and to move promptly to
[page181] resolution or disposition. It also serves to
caution payors that there is no benefit to be gained from
avoiding support obligations.
[24] In this case, there were no circumstances that supported
a departure from the usual commencement date for support. The
wife established entitlement and need. Evidence of need was
apparent from her reliance on government benefits and credits.
Further, the wife cited her need for funds to meet debts and
unpaid bills, to purchase items that she had delayed
purchasing, for R.R.S.P. contributions, to purchase life
insurance, to minimize or eliminate the need for a mortgage on
their new home and to repay money received on account of the
government benefits and tax refunds in the amount of about
$22,000. The wife should not be penalized simply because,
pending trial, she lived frugally and postponed non-recurring
expenses.
[25] During the two years in issue, the husband had the
financial means to pay spousal support. He knew that spousal
support would be decided at trial. In such circumstances, there
is no reason to relieve the husband from his responsibility to
pay spousal support.
[26] As I am satisfied that it was an error in principle to
characterize the issue as one of retroactive support, the date
of commencement of spousal support is subject to review on this
appeal. While the issue could be returned to the trial judge
for the determination of quantum, this would lead to additional
costs for the parties that would be out of proportion to the
amounts at issue.
[27] On the hearing of the appeal, the wife sought $7,000
monthly spousal support for 2002 and $4,500 monthly for 2003.
In 2002 the husband earned $441,928 and in 2003 he earned
$327,146, for an average income over those two years of
$384,537. These earnings exceed by approximately 11 per cent
the husband's 2004 income upon which the trial judge based
spousal support of $5,000 monthly.
[28] This court has sufficient factual findings from the
trial judge to determine the appropriate level of spousal
support for the two years at issue. In addition, spousal
support is not a mathematical calculation determined by
formula, but rather involves an exercise of discretion grounded
in the Divorce Act's objectives and factors. In exercising her
discretion on spousal support, the trial judge correctly took
into consideration the absence of any major shelter expenses
because the wife had possession of the mortgage-free
matrimonial home in 2002 and 2003. This is a relevant
consideration. In all the circumstances, I would not depart
from the trial judge's global assessment that the wife's
needs and the husband's ability to pay made $5,000 an
appropriate monthly award. I would have ordered that support to
begin as of January 1, 2002. [page182]
[29] Counsel advise, however, that the wife will not be
required to re-file her income tax returns for the two years in
issue and that she will not be required to repay the government
benefits and credits that she received. If this is correct, it
would be unfair to give the wife a virtual windfall at the
expense of the husband. Counsel suggested that, in these
circumstances, any spousal support award be structured as a
lump sum. A lump sum award would be based on the two years of
support at issue less the $22,000 of government benefits and
credits received by the wife. From that amount, a further
deduction should be made to reflect the income tax consequences
of a lump sum payment. Thus, I would order the husband to pay
the wife a lump sum amount of $52,500 for spousal support for
2002 and 2003.
(ii) Special and extraordinary childcare expenses
[30] The Guidelines provide:
Section 7 -- Special or Extraordinary Expenses
7(1) In a child support order the court may, on either
spouse's request, provide for an amount to cover all or any
portion of the following expenses, which expenses may be
estimated, taking into account the necessity of the expense
in relation to the child's best interests and the
reasonableness of the expense in relation to the means of the
spouses and those of the child and to the family's spending
pattern prior to the separation:
(a) child care expenses incurred as a result of the
custodial parent's employment, illness, disability
or education or training for employment;
Sharing of expense
(2) The guiding principle in determining the amount of an
expense referred to in subsection (1) is that the expense is
shared by the spouses in proportion to their respective
incomes after deducting from the expense, the contribution,
if any, from the child.
Subsidies, tax deductions, etc.
(3) In determining the amount of an expense referred to in
subsection (1), the court must take into account any
subsidies, benefits or income tax deductions or credits
relating to the expense, and any eligibility to claim a
subsidy, benefit or income tax deduction or credit relating
to the expense.
[31] The evidence at trial established that the wife incurred
babysitting and summer camp costs of $4,923 in 2002 and $1,780
in 2003 during the summer months. She testified that she
"mostly" worked five days a week during the summer when she
earned the majority of her income and that she did not take
much [page183] time off during the summer. Since the wife
earned approximately $33,000 annually and she is the mother of
school-age children, it is reasonable that she would incur
childcare expenses.
[32] Reading the trial judge's reasons as a whole, it is
clear that, after weighing the evidence, she was not satisfied
that the expenses incurred were significant. The amount of the
expenses was reasonable. While a trial judge's award of child
support is entitled to considerable deference, in this case the
trial judge erred in her determination that a s. 7 expense must
be a significant or extraordinary one before it is shared by
the parties in proportion to their incomes. No such requirement
is set out in the Guidelines. Section 7 only requires that such
an expense be necessary and reasonable. If it is, absent any
other reason to order otherwise, the payor spouse is required
to share the expense proportionately.
[33] There is no evidence that the childcare costs were
anything other than reasonable and necessary for the wife to
earn her income. There was no indication that the husband was
unable to contribute to childcare costs. Indeed, at the hearing
of this appeal, counsel conceded that the husband is obliged
prospectively to contribute proportionately for childcare
expenses incurred as a result of the wife's employment
calculated in accordance with s. 7. I am of the view that the
childcare costs incurred were reasonable and that he is also
obliged to do so for 2002 and 2003.
- Disposition
[34] In the result, I would allow the appeal by substituting
for para. 5 of the Divorce Order of February 10, 2004 an order
that the husband pay to the wife a lump sum of $52,500 for
spousal support for 2002 and 2003. I would replace para. 8 with
an order requiring the husband to pay his proportionate share
of any childcare expenses incurred commencing in 2002 and
continuing prospectively, calculated in accordance with s. 7 of
the Guidelines.
- Costs
[35] The appellant has been largely successful on this
appeal. I would award her costs fixed at $12,000, inclusive of
GST and disbursements.
Appeal allowed. [page184]
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