COURT OF APPEAL FOR ONTARIO

CITATION: Selznick v. Selznick, 2012 ONCA 686

DATE: 20121012

DOCKET: C55060

Doherty, Hoy and Pepall JJ.A.

BETWEEN

Mirilyn Rachel Selznick (now Mirilyn Rachel Sharp)

Applicant/Appellant in Appeal

and

Stephen Selznick

Respondent/Respondent in Appeal

Stephen Grant, for the appellant

Diane E. Klukach, for the respondent

Heard: September 19 and 20, 2012

On appeal from the order of Justice Susan E. Greer, of the Superior Court of Justice, dated November 9, 2011 and January 21, 2012.

ENDORSEMENT

Background

[1] The parties, both of whom are lawyers, were married in 1992, separated in 2001, and divorced in 2005. They have three children, aged 18, 16, and 14.

[2] The appellant brought a motion for child support to be paid by the respondent, her former husband, commencing in January 2011. The motion was heard on October 10, 2011. On November 9, 2011, the motion judge released an endorsement that was supplemented by additional endorsements dated January 21, 2012 and July 19, 2012. The order that was the subject matter of these endorsements bore two dates: November 9, 2011 and January 21, 2012 and was signed on July 26, 2012 (the “Order”). It addressed monthly child support, s. 7 expenses under the Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”), enforcement by the Family Responsibility Office (“FRO”), and income disclosure.

[3] The appellant appeals from this Order.

[4] The record before this court included eight facta and ten compendia. Given the state of the record, counsel were asked at the commencement of court to identify the issues to be argued on this appeal. Counsel identified the following five issues: i) the calculation of the appellant’s income for the purpose of determining the appellant’s share of the children’s s. 7 expenses under the Guidelines; ii) the nanny expense; iii) the Cornell University expense; iv) enforcement of the Order by the FRO; and v) the respondent’s motion to file fresh evidence.

Standard of Review

[5] The Supreme Court of Canada addressed the standard of review for appeals of support orders in Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, 172 D.L.R. (4th) 577. As stated in that decision, at para. 11, appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong.

Analysis

(i) Appellant’s Income

[6] The appellant submits that the motion judge erred in determining her 2011 income by averaging the appellant’s income from the years 2008, 2009 and 2010, when the appellant’s income was higher than her projected 2011 income. The appellant further argues that the motion judge erred in attributing to her $60,000 in income for the purpose of determining the appellant’s share of the children’s s. 7 expenses under the Guidelines.

[7] The motion judge noted that the appellant’s income fluctuated. She arrived at the appellant’s 2011 income figure by averaging the appellant’s income for the three preceding years to reach a figure of $210,615. To this figure, she added $60,000 to reach $270,615 because she found that the appellant had deliberately chosen to remain home and to only work on a part-time basis.

[8] In the evidence before the motion judge, the respondent contended that the appellant worked part-time and could easily earn much more. The appellant contended that she worked full-time, albeit from home. No evidence was led on the hours docketed by the appellant at her law firm, nor was there any independent confirmation of the appellant’s status at her firm. It was open to the motion judge to prefer the respondent’s evidence. As of October 5, 2011, the date of the appellant’s sworn financial statement, the appellant had a net worth of $5,896,137.40, of which $3,551,670.40 represented savings in bank accounts.

[9] The motion judge did not misapprehend the evidence before her, nor its effect. Having regard to the appellant’s income as a lawyer of significant experience at a mid-sized Toronto law firm, the motion judge made no error in principle in averaging the appellant's yearly income and attributing to her $60,000 in additional partnership income for the purpose of calculating the s. 7 expenses. We therefore do not give effect to this ground of appeal.

(ii) Nanny Expense

[10] Secondly, the appellant submits that the motion judge erred in denying the cost of the nanny as a s. 7 expense.

[11] Section 7 of the Guidelines provides the motion judge with discretion to order the payment of certain expenses by a party, taking into account the necessity of the expense in relation to the children’s best interests and the reasonableness of the expense in relation to the means of the spouses and to the family’s spending pattern prior to the separation.

[12] It was open to the motion judge to exercise her discretion and refuse to treat the cost of the nanny as a s. 7 expense. She noted that the children were all teenagers. They attended school and had after-school activities. The nanny did not drive the children to those activities. The appellant continued to work from home and was available to drive the children to activities if necessary. We do not give effect to this ground of appeal.

(iii) Cornell University Expenses

[13] The appellant submits that the motion judge erred in her treatment of the eldest child’s university expenses. We disagree.

[14] When the motion was heard, the eldest child was still in high school and both the university she would attend and its location were unknown. As is clear from the motion judge’s January 21, 2012 endorsement, the parties were to agree on the university and related expenses, failing which a motion was to be brought. In June 2012, when the parties re-attended before the motion judge, the appellant estimated the costs for one year at Cornell University to be US$64,145. No agreement between the parties was reached and no motion was ever brought. Accordingly, there was an inadequate evidentiary record before the motion judge and she was not prepared to deal with the eldest child’s s. 7 expenses past June 30, 2012. This was reasonable in the circumstances. Either of the parties may still bring a motion to address the eldest child’s university expenses. In the meantime, the respondent continues to pay child support for the eldest child based on the Guidelines. We do not give effect to this ground of appeal.

(iv) Enforcement by the FRO

[15] The appellant submits that the motion judge erred by permitting the respondent to pay his share of the s. 7 expenses directly to third parties or to the appellant rather than to the FRO.

[16] In her July 19, 2012 endorsement, the motion judge stated that the s. 7 expenses were no longer to be subject to collection by the FRO. The Order contemplated that the monthly Guideline child support payments would be paid to the FRO but the s. 7 expenses would be paid directly to the third parties or to the appellant. It is evident from the motion judge’s July 19, 2012 endorsement that this was done because of a need for tax and other receipts and because the amounts were in a state of flux. Section 13(e) of the Guidelines provides that where the amount of the s. 7 expense cannot be determined, the proportion to be paid by the parties is to be set out in the order. This was done here. We see no basis on which to give effect to this ground of appeal.

(v) Respondent’s Motion to File Fresh Evidence

[17] The respondent brought a motion to file fresh evidence. He abandoned his cross-appeal and therefore, apart from the s. 7 claims, his 2011 income was not a live issue before this court. The evidence he proposed to file was either already before us, was irrelevant and unnecessary, or its absence from the record reflected a lack of due diligence.

Disposition

[18] For the reasons given, the appeal is dismissed as is the respondent’s motion to file fresh evidence.

[19] The parties are to make written costs submissions of no more than 3 pages in length.

“Doherty J.A.”

“Alexandra Hoy J.A.”

“S.E. Pepall J.A.”