DATE: 20050321

DOCKET: C41647

COURT OF APPEAL FOR ONTARIO

RE:

LAWRENCE ALBERT SUGARS (Moving Party (Appellant)) – and – SUSAN GAY SUGARS (Responding Party (Respondent))

BEFORE:

MacPHERSON and CRONK JJ.A., and WHALEN J. (ad hoc)

COUNSEL:

Beatriz Contreras

for the appellant

Eric Lewis

for the respondent

HEARD & RELEASED ORALLY:

March 18, 2005

On appeal from the order of Justice J. M. O’Connell of the Ontario Superior Court of Justice dated March 12, 2004.

E N D O R S E M E N T

[1] This is an appeal from the March 12, 2004 order of O’Connell J. The appellant had applied to vary the then existing order by terminating child support and rescinding or reducing arrears then outstanding.

[2] By order of May 22, 1982, the appellant had been ordered to pay child support of $450 per month for his son born September 7, 1979. That order was varied on December 12, 1983 to reduce payments to amounts ranging from $25 per week to $50 per week, depending on the appellant’s employment status and timeliness of payment. In the entire period, the appellant paid only $1,033.00 as a result of two enforcement initiatives.

[3] O’Connell J. dismissed the motion and fixed arrears of child support owing to the respondent at $39,782.72 inclusive of interest and payable at the rate of $150.00 per month. He also rescinded the previous outstanding order, effectively terminating current child support. The child’s entitlement to support ceased on September 7, 1997 and this was reflected in the calculation of arrears fixed.

[4] The appellant submitted that:

(a) the lower court had erred in its interpretation and application of s. 17 of the Divorce Act, and also the case law in respect of its exercise of discretion, and;

(b) the lower court failed to weigh all the relevant considerations surrounding the appellant’s circum-stances.

[5] We do not agree with the appellant’s submissions on these issues.

[6] The application judge was aware of the appellant’s health problems and alluded to them in his written reasons. He concluded that while these difficulties might limit the appellant’s performance of heavier forms of physical labour, he was not disabled from working as he had, in fact, been doing for many years. The presented evidence of the appellant’s health and employment history were ample to permit the judge to reach this conclusion.

[7] The judge was also aware of the appellant’s existing common-law relationship and the financial contributions of the appellant’s common-law spouse to their household. While the judge did not allude to her current health problems or need for care, he was aware of the appellant’s competing obligations. O’Connell J. clearly viewed the long-standing child support obligation as prior and higher. Also, the fact that the child is no longer dependent does not necessarily impact upon the appellant’s obligation during dependency.

[8] The application judge observed that the appellant had never made a voluntary payment towards current support or arrears, and that he had allowed any intended application for variation to languish for years. He had completely ignored the child, lost all contact with him and failed to support him. The court thus characterized the appellant’s attitude as “an example of grave irresponsibility of a parent”. This was a valid consideration in the exercise of the court’s discretion in this case, and one we agree has important bearing.

[9] In these circumstances, a payor has a heavy onus to justify a reduction or recission of child support. The appellant has not met that burden in this case.

[10] We note that the appellant was accorded significant relief in the exercise of the court’s discretion in respect of the rate of interest to be applied to the arrears. The application judge applied a rate of 4%, which was much lower than the rates in effect at the times of the earlier orders. The appellant may also have received the benefit of forgiveness of premium amounts of child support payable by failure to pay on time or to report when he was working. The arrears could have been substantially higher. The respondent has not challenged these allowances.

[11] For all these reasons, the appeal is dismissed with costs to the respondent fixed at $3,500 inclusive of disbursements and Goods and Services Tax.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“W.L. Whalen J. (ad hoc)”