Court of Appeal for Ontario

Citation: Bond v. Bond, 2008 ONCA 560 Date: 2008-07-16 Docket: C48517

Before: O’Connor A.C.J.O., Moldaver and MacFarland JJ.A.

Between:

Russell Bond Applicant (Appellant)

And

Ursel Bond Respondent (Respondent)

Counsel: John E. Johnson for the appellant Thomas R. Hunter for the respondent

Heard and released orally: July 4, 2008.

On appeal from the judgment of the Divisional Court (Greer, Killeen and Newbould JJ.) dated September 25, 2007.

ENDORSEMENT

[1] The central issue in this appeal is whether the Divisional Court erred in overturning the motion judge’s finding that the wife was not entitled to retroactive child support. In concluding that the wife was not entitled to such support, the motion judge found as a fact that the 1997 amending agreement continued in force until January 2005. It was his view of the evidence that the discussions that took place between the parties in April 2001 did not constitute a renegotiation so as to result in a termination of that agreement. In our view, that finding was supportable on the evidence. In particular, the motion judge had before him an email dated April 26, 2001, in which the wife indicated that she was willing to accept cheques for the next year in the amount of $1700 per month and not go to arbitration. As well, the husband continued paying $1700 per month until January 2005 without comment or objection from the wife.

[2] Given the finding of an ongoing agreement - which, in our view, provided for reasonable child support - unlike the Divisional Court, we do not believe that in denying retroactive child support, the motion judge ran afoul of the principles enunciated by the Supreme Court of Canada in the trilogy.

[3] However, even if he did, the motion judge found as a further fact that throughout the years 2001 to 2005, the parties continued with their arrangement whereby the children were with their mother four days each week and with their father three days per week. On the basis of that evidence, he found that for the period following 2005, the husband had care of the son more than 40% of the time. He therefore found that that s. 9 of the Guidelines relating to shared custody applied.

[4] The Divisional Court disagreed with that finding and directed that if the parties could not agree, the question of shared custody should be dealt with by way of a trial of an issue. In our respectful view, it was open to the motion judge to make the finding he did with respect to shared custody and the Divisional Court erred in concluding otherwise.

[5] Given the motion judge’s finding that the 1997 amending agreement continued until 2005, it was unnecessary for him to engage in a similar “shared custody” analysis for the years 2001 to 2005. Had he done so, it is clear from his reasons that he would have come to the same conclusion with respect to both children.

[6] On the analysis prepared by the wife’s counsel, if there was no continuing agreement from 2001 to 2005 and the guidelines applied, then based on the shared custody finding and the amount paid by the husband during the requisite timeframe, the wife would have been owed retroactive child support in the amount of $7,054. On the husband’s calculation, he would have overpaid the wife by $3,558.

[7] These calculations support our conclusion that the amount paid by the husband pursuant to the continuing agreement during the period from 2001 to 2005 was reasonable. As such, this is a second reason for sustaining the motion judge’s conclusion that this was not a case for retroactive child support. In this regard, we note as well that the husband did not at any time mislead the wife about his income or assets, nor is there any evidence that the children’s needs were not amply provided for during the years 2001 to 2005. Indeed, the evidence suggests the opposite. Additionally, we accept the motion judge’s criticism of the wife that the filing of the original 1993 agreement with the FRO, without disclosing that it had been twice amended, was “unjustified”. Finally, we note that the wife provided no reasonable explanation for waiting until 2005 before filing the original agreement with the FRO and that her claim for retroactive support was, in the opinion of the motion judge, “a tactical response to the father’s meritorious claim for a reduction in child support”.

[8] In the result, we are satisfied that the motion judge correctly concluded that the husband was not obliged to pay retroactive child support to the wife and the Divisional Court erred in concluding otherwise. Accordingly, paragraph 6 of the order of the Divisional Court is set aside and paragraph 10 of the motion judge’s order is reinstated.

[9] With respect to the remaining aspects of the motion judge’s order, we are satisfied that it was open to him to conclude that the child support payments for the son subsequent to January 2005 should be calculated on the basis of s. 9 of the Child Support Guidelines. Further, we see no basis for interfering with his finding that as of August 2005, the daughter resided fulltime with the husband. To the extent that the Divisional Court found otherwise, we respectfully disagree.

[10] The parties are optimistic that, armed with these conclusions, they will be able to resolve any outstanding issues in relation to child support from January 2005 to the present and forward. If this proves wrong, they may return to the Superior Court.

[11] The appeal is therefore allowed and an order will issue in accordance with these reasons.

Costs

[12] With respect to costs, costs are awarded to the appellant for the appeal to the Divisional Court and for the appeal to this court. They are fixed, on a partial indemnity basis, in the amount of $20,000 inclusive of G.S.T. and disbursements.

“Dennis O’Connor A.C.J.O.”

“M. J. Moldaver J.A.”

“J. MacFarland J.A.”