Court File and Parties

Citation: Pirner v. Pirner, 2007 ONCA 813

Date: 2007-11-26

Docket: C47313

Court of Appeal for Ontario

Before: Gillese, LaForme and Watt JJ.A.

Between:

Thomas Pirner Applicant/Appellant

and

Diane Marion Pirner Respondent

Counsel:

Thomas Pirner, appellant, appearing in person

John B. Legge for the respondent

Heard: November 22, 2007

On appeal from the orders of Justice Nancy Backhouse of the Superior Court of Justice dated April 27, 2007 and June 7, 2007.

Appeal Book Endorsement

[1] Mr. Pirner asks this court to vary that part of the order of Backhouse J. which requires the respondent to pay child support for Katrina for the period October 2004 to December 2005. He argues that because Katrina was under the age of majority and living with him, he is entitled to receive child support for Katrina not only for the specified period but from December 2005 until Katrina graduates from university.

[2] We do not accept the appellant’s argument. Katrina was born on February 23, 1989. She reached age 16 on February 23, 2005. Section 2 of the Divorce Act makes it clear that a child under the age of majority is a “child of the marriage” for the purposes of child support provided she has not withdrawn from the parents’ charge. Mr. Pirner, as the parent seeking an order for child support, had the obligation to prove that Katrina had not withdrawn from his charge and that she was dependent on him to obtain the necessaries of life. Justice Backhouse was fully entitled, on this record, to reach the conclusion that Mr. Pirner had not discharged that burden, at least after December 2005.

[3] Accordingly, there is no basis to interfere with her order and the appeal is dismissed. Mr. Pirner also asks leave of the court to advance an appeal against the costs order of Backhouse J. We see nothing that causes us to doubt the correctness of the costs order. In making this statement, we would note two things. First, the record supplied by the appellant in this matter was grossly deficient. Second, Backhouse J. has case-managed this proceeding and was in the optimal position to make the costs determination that she did.

[4] Accordingly, the appeal is dismissed with costs to the respondent fixed at $5,000, all inclusive.