CITATION: Walsh v. Walsh, 2007 ONCA 218
DATE: 20070327
DOCKET: C46120
COURT OF APPEAL FOR ONTARIO
RE:
JoANNE CONSTANCE WALSH (Appellant (mother)) – and – MICHAEL FRANCIS WALSH (Respondent (father))
BEFORE:
ROSENBERG, ARMSTRONG and JURIANSZ JJ.A.
COUNSEL:
JoAnne Constance Walsh
In person
Harold Niman and Anita Volikis
for the respondent
HEARD:
March 19, 2007
On appeal from the costs order of Justice M.G.J. Quigley of the Superior Court of Justice dated June 21, 2006.
E N D O R S E M E N T
[1] In this appeal, JoAnne Walsh seeks a “stay” of a costs order made by Quigley J.; a “final order for child support for 2005 based on Michael Walsh’s 2004 income of $515,252.00”; that this court’s decision in Walsh v. Walsh “be revisited”; and reinstatement of spousal support. We will deal with each of the issues in turn. For convenience, we will refer to the appellant as the mother and the respondent as the father.
Introduction
[2] This appeal arises out of an application by the mother for an increase in spousal and child support and a cross-application by the father to terminate the spousal support. The application judge dismissed the application and allowed the cross-application by stepping down the spousal support from $2,800 per month to $1,400 per month effective July 1, 2006, with spousal support to terminate on December 31, 2006. In his order of October 11, 2006, the application judge awarded costs to the father on a substantial indemnity basis in the amount of $21,700.29 and included a term precluding the mother from bringing any further proceedings of any kind until that order was paid along with an earlier costs order made by Tulloch J. That term provides as follows:
- The Respondent (JoAnne Constance Walsh) shall not be at liberty to bring any further proceedings of any kind in this ongoing litigation until Justice Tulloch’s cost order of $3,000.00 and this cost order of $21,700.29 in favour of the Applicant, Michael Walsh are satisfied in full.
[3] This appeal is part of on-going litigation between these former spouses since they separated in 1995. The parties have two children now aged fourteen and thirteen. While the parties have joint custody, the mother is the primary care-giver. An important step in the history of the litigation between these parties includes the decision of this court in Walsh v. Walsh (2004), 2004 36110 (ON CA), 69 O.R. (3d) 577. In that judgment, this court overturned an award of retroactive child support of almost $43,000 that was to have been paid by the father to the mother.
[4] One other important piece of the history is a judgment of Tulloch J. in October 2004, which he varied in January 2005, that fixed an amount of retroactive child support, fixed on-going child support, required the father to provide the mother with copies of his income tax return and notice of assessment on an annual basis and included a term barring further applications for retroactive child support. That order was not appealed.
The Costs Order
[5] As a result of Rule 24 of the Family Law Rules, there is a presumption that a successful party is entitled to costs. Under subrule (11), the judge in setting costs is to consider a number of factors including the unreasonableness of each party’s behaviour in the case. In this case, the application judge concluded that because of the mother’s “egregious and unrelenting behaviour in the course of these proceedings” he should make an order for costs on the substantial indemnity scale. Before reaching that conclusion, the application judge set out in a summary form the nature of the conduct that in his view required this unusual award. We see no error in principle in his approach and would not interfere with the costs order.
[6] We are, however, concerned about para. 2 of the Order of October 11, 2006, insofar as it may impact on necessary on-going adjustments to child support. As is well known, the payor parent’s child support obligation fluctuates depending upon the income of that parent. Further, since the system is application based, unless the payor parent voluntarily adjusts the child support, the parties have come to an arrangement, or they have had one imposed by the court, further applications by the payee may be necessary to fix the amount of child support.
[7] Thus, as was observed by the court in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.A; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231 at para. 56, “the responsibility of ensuring that the proper amount of support is being paid, in practice, does not lie uniquely with the payor parent”. Further, if the payor’s income rises “and the amount of child support paid does not, there will remain an unfulfilled obligation that could later merit enforcement by a court” [D.B.S., at para. 59]. It must also not be forgotten that “support is the right of the child” [D.B.S., at para. 60]. Therefore, just as the child should not suffer because of lack of vigilance by the payee parent in monitoring child support payments [D.B.S., at para. 60], courts should also be careful to ensure that attempts to deal with alleged misconduct by the payee do not interfere with the rights of children to on-going child support in the amounts required by the Child Support Guidelines.
[8] Accordingly, until some other solution can be found to deal with on-going child support in this case, such as an automatic recalculation of child support based on the previous year’s income, we are of the view that the mother should not be barred from making further applications for the benefit of the children. Paragraph 2 of the October 11, 2006 order will therefore be varied as follows:
- The Respondent (JoAnne Constance Walsh) shall not be at liberty to bring any further proceedings of any kind in this ongoing litigation, except an application for variation of child support in accordance with the Child Support Guidelines, until Justice Tulloch’s cost order of $3,000.00 and this cost order of $21,700.29 in favour of the Applicant, Michael Walsh are satisfied in full.
[9] The appeal is allowed to that extent.
2005 Child Support
[10] The mother concedes that the father paid child support for 2005 in accordance with his 2004 income. This part of the appeal is therefore moot.
Revisiting Walsh v. Walsh
[11] The mother submits that we should revisit Walsh v. Walsh in light of the subsequent decision of the Supreme Court of Canada in D.B.S., at para. 60. By “revisit”, the mother asks that we reverse the earlier decision and reinstate the order for retroactive support made back in 2003 by Snowie J. Put simply, we have no power to do so. The order of this court in Walsh v. Walsh is a final order and could only have been varied by a decision of the Supreme Court of Canada in that case. The mother is also effectively barred from seeking this relief by the final order of Tulloch J. We therefore cannot give effect to this ground of appeal.
Termination of Spousal Support
[12] The application judge terminated spousal support primarily because of what he characterized as the “flagrant circumstances” where the mother has had ample time to obtain employment outside the home but has chosen not to do so. Section 17(7) of the Divorce Act provides that an order varying a spousal support order, should consider among other factors “(d) in so far as practical, promote the economic self-sufficiency of each former spouse within a reasonable period of time”. The authorities are clear that the judge is to take into account all of the relevant factors set out in s. 17(7).
[13] There was a basis in the record for the application judge’s conclusion both that there had been a material change in circumstances and that a time-limited spousal support order was appropriate. Unless, it can be said that the judge gave unreasonable emphasis to the self-sufficiency factor, this court has no basis for interfering. The application judge set out at length the history of the proceedings and the conduct of the mother that led him to find that the self-sufficiency factor was of particular importance in this case. However, he also considered all the circumstances including the availability of child support; the mother’s allegation that her medical condition prevented her from obtaining employment (he drew an adverse inference against the mother because of the lack of medical evidence); that she had obtained employment in the recent past; and that the intention of the parties during the marriage was that the mother would stay at home until the children were in school.
[14] We are satisfied that the application judge did not make an unreasonable finding and did not place unreasonable emphasis on the self-sufficiency factor. We would therefore not give effect to this ground of appeal.
DISPOSITION
[15] Accordingly, the appeal is allowed only to the extent of varying paragraph 2 of the Order of the October 11, 2006 and is dismissed in all other respects. Since the husband has achieved substantial success on the appeal, he is entitled to his costs of the appeal fixed in the amount of $3,500 inclusive of G.S.T. and disbursements.
Signed: “M. Rosenberg J.A.”
“Robert P. Armstrong J.A.”
“R.G. Juriansz J.A.”