Court File and Parties

Citation: Mickle v. Mickle, 2008 ONCA 36

Date: 2008-01-21

Docket: C45271

Court: COURT OF APPEAL FOR ONTARIO

Judges: WINKLER C.J.O., ROSENBERG and LANG JJ.A.

Between:

MICHELLE MARIE MICKLE

Applicant (Respondent)

and

STEVEN MARK MICKLE

Respondent (Appellant)

Counsel:

Luigi Di Pierdomenico for the appellant

R.D. McKerrow for the respondent

Heard: January 15, 2008

On appeal from the judgment of Justice Steven Rogin of the Superior Court of Justice dated March 24, 2006.

ENDORSEMENT

[1] The appellant did not pursue his appeal regarding spousal support but argues that the trial judge erred in proceeding in a procedurally unfair manner and in his award of support for the two children of the marriage.

[2] The appellant seeks a new trial on the basis that he was denied procedural fairness. He makes two points. First, he argues that the trial judge proceeded to award Guidelines’ support when the respondent had not made formal application for that relief. Second, he argues that the trial judge ought to have provided him with an opportunity to examine Jessica, the youngest child, about her income and expenses.

[3] On the first point, the appellant is correct that there was no formal application for increased child support on the basis of the appellant’s increased income. However, the trial judge rejected the appellant’s argument that there should be a separate and later hearing on that issue. It is implicit in his observations during the trial and in his reasons that the trial judge was satisfied the appellant would suffer no prejudice from a consideration of increased support at the same time as he considered the appellant’s request to terminate child support in its entirety. We agree for several reasons.

[4] First, the appellant was aware from the outset that the respondent would seek increased child support if she was required to proceed to litigation. She said so in her initial letter to the appellant and it was confirmed when her lawyer wrote the respondent in December 2003. His letter sought disclosure of the appellant’s income tax returns and specified an increase in the child support payable under the parties’ separation agreement commensurate with the appellant’s increased income. Second, the discoveries proceeded on the basis that the appellant’s increased income was relevant to child support. Third, the appellant served an affidavit two months before the trial specifying that she sought child support based on the appellant’s increased income. Fourth, the parties appear to have operated on the premise that they would not formally amend court documents, but would delineate the issues at the commencement of trial. This is apparent from the record, including a letter from the appellant’s counsel seeking the respondent’s lawyer’s consent to dispense with formal amendments to save expense.

[5] In addition, at trial the appellant counsel’s primary argument was that the parties were bound by the amount of child support set out in the separation agreement and, for that reason, the appellant’s current income was irrelevant. When the appellant’s counsel expressed his view that the only issue was support under the separation agreement, the respondent’s counsel immediately intervened with his position that, throughout discoveries, the parties had discussed “in essence a counter application”, even if one had not been formally filed. The trial judge ruled that counsel should examine the appellant about his current income and the parties’ could argue further about the parameters of the issues at the end of the trial. The trial judge specifically referred to the need to avoid a bifurcated proceeding.

[6] At the same time, the trial judge commented that “a parent cannot contract out of child support obligations.” From this, it would have been apparent to counsel that, subject to further argument, the trial judge was considering increasing child support above the level set out in the separation agreement. While the parties did not file transcripts of submissions, it is evident the trial judge did consider support from a Guidelines’ perspective, based on the appellant’s increased income, and that he did not consider this prejudiced the appellant in any way. Indeed, when the appellant’s counsel raised the issue during the initial stages of the trial, he agreed to leave the issue in the hands of the trial judge. He did not request an adjournment, presumably because there was no need for one. Moreover, on appeal, the appellant’s counsel did not argue any particular prejudice except to request a new trial to examine Jessica.

[7] The difficulty with the request for a new trial to examine Jessica is that the appellant called Jessica as a witness at the trial (as well as the parties’ other daughter Sara) and examined her at length regarding the very issues of her income and expenses. He is not entitled to a second chance.

[8] Accordingly, while it is always preferable that issues be clearly delineated in formal pleadings, we see no prejudice to the appellant from the judge’s consideration of the issues of increased child support. There was no basis upon which to adjourn the trial, particularly because an adjournment was not sought, and there was no further evidence that the appellant could have called at a subsequent trial that was not available at this trial or that would have changed the result.

[9] Regarding the quantum of child support, the appellant’s basic position is that he should not be obliged to contribute to the support of a child who could obtain employment and pay her own way through university. However, not only is this not an accurate statement of the law, the separation agreement that the appellant signed specifically provided for ongoing child support through one undergraduate degree. Moreover, there was no provision in the agreement that would reduce Guidelines’ support by the amount of income the child was capable of earning.

[10] In this case, the appellant’s income increased from its $86,400 level at the time of the separation agreement in 2000 to $156,000 at the time of trial in 2006. However, because the appellant refused to pay child support for the children from the fall of 2003, when they returned to live with their mother, both children, particularly Sara, obtained employment to pay for her expenses. At the time, the mother’s income from employment was in the range of $32,000 annually.

[11] The appellant resisted his obligation to pay support because Sara rejected his view that she should maintain her factory job while she attended university. At trial, consistent with his original position, the appellant argued that Sara should support her university education through her earnings as a waitress and by accumulating student loans.

[12] The trial judge rejected this argument and noted that, if accepted, Sara’s study time would be compromised and that she would be deprived of any time for the extracurricular activities common during a university education. He also noted that Sara’s car expenses were necessary so that she could commute daily from her mother’s residence to her university in another city.

[13] The trial judge determined that the appellant should participate with the respondent in providing room and board for Sara. He applied the Guidelines to provide increased support for Sara from the date she attended university on a full-time basis. However, the trial judge also recognized Sara’s means to contribute to her own support from her earnings. He ordered substantially reduced child support during the summer months and decreased Sara’s support by fifty per cent during her final year of university. He also assumed that Sara would pay her own tuition. Accordingly, contrary to the appellant’s argument, the trial judge clearly took Sara’s earnings into account in arriving at his decision. Given Sara’s age and circumstances and those of the parties’, we see no error in the award of child support for Sara.

[14] At the time of trial, Jessica was completing her last year of high school and intended to study early childhood education the next year while continuing to live with the respondent. She earned part-time income from employment and produced a budget showing her projected expenses. The trial judge determined that the respondent was entitled to support from the time Jessica returned to live with her in the fall of 2003 and continuing through trial and while she attended university. The trial judge expressed the view that Jessica may earn enough income to pay for her tuition, without having to incur student loans as had been required of Sara. He left it open for a reconsideration of s. 7 expenses once Jessica started to attend her post-secondary education.

[15] We see no error in the trial judge’s determination of support for Jessica.

[16] Finally, the appellant argues that the trial judge erred in awarding costs to the respondent. While it would have been helpful if the trial judge’s reasons on this issue had been somewhat more extensive, the fact is that the respondent was substantially more successful at trial than the appellant. The appellant had sought to be relieved of his obligation to pay the remains of the outstanding spousal support and to terminate support for his two children once they attained the age of 18. He was unsuccessful. In addition, the trial judge was entitled to take into account the respondent’s offer to settle. In these circumstances, we see no error in the trial judge’s exercise of discretion to award costs to the respondent of $10,000 plus disbursements and Goods and Services Tax.

[17] The respondent is entitled to costs of the appeal fixed in the agreed-upon amount of $4,000, inclusive of disbursements and Goods and Services Tax.

“Winkler C.J.O.”

“M. Rosenberg J.A.”

“S.E. Lang J.A.”