COURT OF APPEAL FOR ONTARIO

CITATION: Decaen v. Decaen, 2013 ONCA 218

DATE: 20130408

DOCKET: C54891

Winkler C.J.O., Armstrong and Hoy JJ.A.

BETWEEN

Denise Decaen

Applicant (Appellant/ Respondent by way of cross-appeal)

and

Marc Decaen

Respondent (Respondent/ Appellant by way of cross-appeal)

Kristen Normandin and Arin Tint, for the appellant/respondent by way of cross-appeal

Marc Decaen, acting in person

Carolyn Leach, for the Office of the Children’s Lawyer

Heard: March 1, 2013

On appeal and cross-appeal from the orders of Justice M. Gregory Ellies of the Superior Court of Justice, dated January 9, 2012 and March 13, 2012, with reasons reported at 2012 ONSC 966.

By the Court:

I. OVERVIEW

[1] This is an appeal and cross-appeal in a difficult custody case. The mother, Denise Decaen, wishes to move the minor children – twins, Isabelle and Kaleb, now eight years of age – from Sudbury to Mississauga, where she now resides. Sudbury is where the children have always lived, where their father lives, and where a warm and involved extended family also resides. Support is also at issue.

[2] The trial judge awarded custody to the mother, conditional on her return to Sudbury, and, failing her return, to the father.

[3] Below, we address each of the issues raised by the parties. We conclude that there is no basis for this court to interfere with the trial judge’s decision on custody of the twins, either to permit the move sought by the mother or the joint-parenting arrangement sought by the father. However, we do consider it appropriate to vary the mechanics for implementing the trial judge’s order and slightly modify the terms of access. We also make provisions intended to protect the mother’s entitlement to retirement-period spousal support and address the calculation of support in the period leading up to this appeal. Otherwise, we are not persuaded that any of the issues raised by the parties warrant appellate intervention.

II. BACKGROUND

[4] The mother and father separated in 2007. The mother stayed at home as the children’s primary caregiver, while the father worked outside the home to provide for the family. They have four children: the twins and two older daughters, Denyca and Ashley, now 18 and 23 respectively. After separation, the parents’ relationship became high conflict. The mother denied the father access to the children when unhappy with his behaviour, and the family suffered financial pressures, including the father’s bankruptcy in 2008. The Office of the Children’s Lawyer (the “OCL”) became involved.

[5] In May of 2011, the father learned of the mother’s plan to move to Mississauga with the twins and obtained a restraining order to prevent the move. (The parties agreed that Denyca was old enough to choose with whom she wished to live, and she wished to live with the mother.) In the summer of 2011, the mother moved to Mississauga, where she had obtained a full-time job. She took up residence in the home of her aunt and uncle, who were out of the country. Denyca – then entering her last year of high school – joined her. The twins stayed in Sudbury with their maternal grandparents pending the trial. Ashley was in her last year of university in Sudbury and also stayed with the grandparents.

[6] Following a nine-day trial, custody of the twins was awarded to the mother in January of 2012, conditional on her return to Sudbury. If she did not return, custody was awarded to the father. In his detailed reasons, the trial judge expressed doubt about the credibility of both parties. The trial judge ordered that, given the divided success, neither party be awarded costs of trial.

[7] The mother sought and obtained a stay of the trial judge’s order. She has stayed in Mississauga and the twins have been stranded in limbo – living with their maternal grandparents (indeed, sharing beds with them) in Sudbury, and missing both parents. An arrangement intended to be temporary has dragged on for some twenty months.

[8] The twins see their mother every other weekend, with some visits in Sudbury and some in Mississauga. The twins see their father, now re-married, every other weekend, from Thursday at 5 p.m. until Monday morning before school. They also have an evening visit with him on the alternate Thursdays that they do not stay with him.

[9] Ashley and Denyca have chosen not to have contact with their father.

[10] At trial, the OCL introduced evidence of the children’s wishes and preferences through the testimony of a social worker, Marion Roberts, who had observed the interactions between the children and the parents. In May of 2011, the twins told her they were happy to be going to Mississauga. By November of 2011, Kaleb was no longer positive about the move to Mississauga.

[11] On this appeal, the OCL has filed fresh evidence about the twins’ situation, views and preferences. This evidence comes to the court through the affidavit of a different social worker, Shelley Lund. The OCL makes no recommendation except to say that a decision must be made. The twins love both parents and wish they could be with them more. They are torn and conflicted.

[12] The mother did not oppose the admission of this fresh evidence but did raise concerns about the weight it should be given when compared to the OCL evidence at trial that was based on a more extensive investigation.

[13] Where child welfare is at stake, a more flexible approach to fresh evidence is appropriate: Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.),1994 CanLII 83 (SCC), [1994] 2 S.C.R 165. In this case, the evidence bears directly on the best interests of the children, is provided by the OCL and is reasonably capable of belief. We therefore admit the fresh evidence on the children’s current circumstances.

III. THE ISSUES ON APPEAL

[14] The mother raises seven issues on this appeal.

[15] The first, and the heart of this appeal, is whether the trial judge failed to properly consider the best interests of the children and engage in the analysis required by Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 – the leading authority on parental mobility.

[16] The other issues raised by the mother are:

1. Did the trial judge fail to impute sufficient income to the father?

2. Did the trial judge err by not ordering support payable from the date of separation to the date of trial?

3. Did the trial judge err in terminating child support for Ashley effective upon completion of her undergraduate degree?

4. Did the trial judge err in imputing income to the mother of $45,000 per annum for purposes of calculating her entitlement to spousal support, effective two and one half years after her return to Sudbury, assuming she in fact returns?

5. Did the trial judge err in ordering spousal support, payable on a periodic basis post-retirement, as opposed to lump sum support in an amount equal to one-half the increase during the parties’ marriage of the value of the father’s pension, an asset unaffected by his bankruptcy?

6. Did the trial judge err by failing to hear cost submissions?

[17] In his cross-appeal, the father, who represented himself, seeks an order eliminating the periodic, post-retirement spousal support ordered by the trial judge that was calculated with reference to his pension and an order that his income for the purposes of calculating any sharing of s. 7 expenses be net of spousal support paid. In his factum, he also seeks an order extinguishing the arrears the trial judge found payable, and a slight variance of the holiday access ordered by the trial judge. In his oral submissions, he renewed his request for the shared parenting arrangement, deemed unworkable by the trial judge because of the degree of conflict between the parties.

[18] We now address each of the issues raised by the parties.

IV. DID THE TRIAL JUDGE FAIL TO PROPERLY APPLY THE BEST INTEREST OF THE CHILDREN TEST AND ANALYZE THE FACTORS SET OUT IN GORDON V. GOERTZ?

(a) Summary

[19] As indicated above, we conclude that there is no basis for this court to interfere with the trial judge’s decision about custody of the twins.

[20] It must be remembered that appellate courts are to give considerable deference to the decisions of trial judges on custody and access. An appellate court is not to overturn a custody order in the absence of a material error, a serious misapprehension of the evidence or an error in law: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014.

[21] In detailed reasons, the trial judge carefully reviewed the applicable legal principles. He properly considered the best interests of the children in light of the factors set out in Gordon v. Goertz, reviewed below. He looked at the existing arrangements and relationships between each of the children and between the children and the mother and father. He considered the desirability of maintaining contact with both parents, the emotional ties between the twins and Denyca, the preferences of the children as relayed by the OCL, the mother’s reasons for moving to Mississauga, and the potential disruption to the twins under various scenarios. We are not persuaded that the trial judge made a material error, seriously misapprehended the evidence or made an error of law.

[22] Below, we review the factors set out in Gordon v. Goertz, summarize the parties’ submissions, and provide a more detailed analysis supporting our conclusion that there is no basis for this court to interfere with the trial judge’s decision regarding the custody of the twins.

(b) Gordon v. Goertz

[23] In Gordon v. Goertz, Justice McLachlin (as she then was), writing for the majority, identified a number of factors relevant to a child’s best interests in the context of possible relocation: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (f) disruption to the child of a change in custody; and (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[24] At para. 50 of Gordon v. Goertz, McLachlin J. stated that, “[i]n the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community.”

(c) The mother’s submissions

[25] The mother argues that the move to Mississauga was necessary for Denyca, who, as will be explained below, was emotionally fragile and needed to get away from Sudbury. The move also permitted the mother to earn an income. She argues further that the trial judge’s order failed to give sufficient weight to the fact that, since birth, the mother had been the children’s main caregiver. If she did not return to Sudbury and the father obtained custody of the twins, the twins’ contact with the mother and with Denyca would be affected. The mother submits that Denyca, with whom the twins have a close relationship, would not return to Sudbury. The mother contends that the trial judge erred by giving greater weight to maximum contact with the father than to contact with her or with Denyca.

[26] The mother also argues that the trial judge erred by not giving greater weight to the twins’ stated preference prior to trial to move to Mississauga. She urges that more weight should be given to the OCL’s position at trial than to its current position because Ms. Roberts, the social worker involved prior to trial, had more extensive contact with the family and better understood the familial dynamic than Ms. Lund.

[27] In addition, the mother submits in her factum, although not in oral submissions, that the trial judge erred in doubting her credibility.

(d) The father’s submissions

[28] The father submits a parenting plan involving a joint-parenting arrangement as his preference. In oral submissions he stated that he saw no significant error in the order made by the trial judge.

(e) Analysis

(i) Reasons for moving

[29] As indicated above, the mother submits that there are two main reasons for the move to Mississauga: her daughter Denyca and the mother’s job opportunity there. To explain the first reason, some background on Denyca is necessary. In 2009/2010, Denyca lived with her father with the intent of moving in with him permanently. This plan ended abruptly in August of 2010 when the father was charged with sexually assaulting one of her friends. While he denies that he committed the offence, the father ultimately pled guilty to simple assault and received a conditional discharge. The gossip and social pressures that followed this event affected Denyca and her relationship with her father.

[30] In his reasons, the trial judge considered this background. He found that living in Mississauga was beneficial for Denyca.

[31] He concluded, at para. 156:

I accept that Denyca’s condition improved after she left Sudbury and that she very much does not wish to return. Unfortunately, there is more at stake here than just Denyca’s best interests. I bear in mind that she will be undertaking post-secondary education, beginning in September. It is a common occurrence for older children to leave their homes to further their education. While I would like to maximize the contact Denyca has with the twins in the meanwhile, I also bear in mind that both the [mother] and Denyca chose to reduce that contact by living in Mississauga despite the orders which prevented the twins from being moved.

[32] Given Denyca’s age, however, the trial judge focussed more on the needs of the twins. He did not commit a reviewable error in doing so.

[33] Denyca is now completing her first year of university. In the fresh evidence filed by the OCL, Kaleb explains that his mother usually comes to Sudbury once a month and that Denyca usually comes with her. He describes Denyca as spending most of her time in Sudbury with her friends: a happy picture, and a normal situation, given their age differences. Ms. Lund’s interview with Denyca suggests that Denyca has been much affected by the family conflict, is hurt by the lack of a relationship with her father, and thinks “sometimes about going back to Sudbury when things are particularly difficult.” Her commitment to Mississauga appears more equivocal than at the time of trial.

[34] The mother, in her interview with Ms. Lund, described Denyca as improving but still emotionally unstable, and expressed the opinion that the eight-year-old twins would manage her absence better than would Denyca. The mother also advised that Denyca had discontinued therapy because she had not connected well with her therapist. No medical evidence in relation to Denyca was filed as fresh evidence.

[35] Time has passed since the incident that caused so much distress to Denyca. And while we appreciate that the mother would ideally wish to be available to all her children, Denyca is now almost nineteen and nothing in the fresh evidence warrants re-visiting the trial judge’s balancing of factors here.

[36] As to the ability to earn an income as a reason for the move, the trial judge found that the mother had “not demonstrated to this court’s satisfaction that the job she took in Mississauga is the only real chance she has to re-enter the workforce.” He described the mother’s evidence on this key point as “vague and unconvincing.” We are not persuaded that the trial judge’s finding amounts to a palpable and overriding error.

(ii) Other factors

[37] As required by Gordon v. Goertz, the trial judge considered a wide range of factors relevant to the twins’ best interests in the context of possible relocation to Mississauga. He considered that the mother had been the children’s main caregiver since birth. Indeed, he concluded, based on all of the evidence, that she should be given custody, but subject to an order restraining her from removing the twins from the Greater Sudbury area.

[38] He also considered that living in Mississauga would significantly reduce the access enjoyed by the twins with their father. The father’s continued employment in Sudbury was critical to the financial health of the family. The twins had already changed schools three times in Sudbury. They were close to their extended families, and especially enjoyed time at the father’s family’s farm and “camp”. The Mississauga school was “very far away from everything and everyone that the twins have known their entire lives” (at para. 158). The trial judge concluded that it would be in the twins’ best interests to remain close to their extended families in the Greater Sudbury area.

[39] As for the twins’ contact with Denyca, the trial judge’s emphasis on maximum contact with both parents was consistent with the findings in the OCL report that Denyca’s current focus was now, as is appropriate for her age, on her own peers rather than on her young siblings.

[40] The trial judge considered the twins’ views and preferences but “only to a limited extent”. One reason for this was the twins’ “young ages for reasons I probably do not have to expand upon” (at para. 165). The mother argues that the trial judge erred by not explaining why less weight should be accorded to the preferences expressed by young children.

[41] We do not agree that the trial judge’s failure to elaborate amounts to an error, but offer this further explanation. It is thought that the expressed preferences of young children are more likely to be fleeting, subject to external influence, and inconsistent with their actual best interests. A child’s request to dine on candy alone is likely inconsistent with her best interests.

[42] In assessing the significance of a child’s wishes, the following are relevant: (i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child’s point of view: See Bala, Nicholas; Talwar, Victoria; Harris, Joanna, “The Voice of Children in Canadian Family Law Cases”, (2005), 24 C.F.L.Q. 221. It is apparent that the trial judge considered all of these relevant factors.

[43] The trial judge found that the father was a viable second choice as a custodial parent, if the mother chose to live in Mississauga. We are not persuaded that he made a reviewable error in so concluding.

[44] In addition, the trial judge found that the children’s wishes were not necessarily unambivalent or informed (a finding supported by the fresh evidence), and also that the mother had likely influenced the twins. In this context he referenced the twins’ mention of a swimming pool that would be nearby in Mississauga as well as their comment that they could still keep in touch with their friends via Facebook. The mother argues that there were ways that the children could have learned about the swimming pool other than through her deliberate interference. That may be so, but it was not unreasonable for the trial judge to consider the possibility that the views and preferences expressed by these young children were not entirely their own.

[45] The trial judge also discounted the weight of Ms. Roberts’ testimony about the views and preferences of the children for two reasons. The first was that Ms. Roberts was aware of the position that the OCL planned to take before she met with the parties and the children. The second is that she referred to no notes while testifying about numerous meetings conducted over many months. The trial judge felt that it defied logic that she could remember accurately all that transpired during those meetings without any reference to notes. We see no reversible error in the trial judge’s careful consideration of this evidence.

[46] Finally, the trial judge gave detailed reasons for his conclusion that the credibility of both the mother and the father was in doubt. There is in our view no basis for upsetting those findings either.

V. AMOUNT OF INCOME IMPUTED TO THE FATHER

[47] The mother argues that the trial judge failed to impute sufficient income to the father. Specifically, she submits that the trial judge erred in failing to average the father’s past three years of income.

[48] We do not accept this argument.

[49] The trial judge found that the father had failed to disclose income and he accordingly considered the pattern of the father’s income from 2005 forward. Having done so, he determined, for a variety of reasons, that it was appropriate to use the father’s projected income for 2011 as a starting point for imputing income for the purposes of calculating support.

[50] Section 17 of the Child Support Guidelines, O. Reg. 391/97, provides that where the court is of the opinion that determining a parent’s income using the T1 General form issued by the Canada Revenue Agency would not be the fairest determination of that income, “the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.” The language in section 17 is permissive rather than mandatory, allowing the court to look at the spouse’s income over the last three years in appropriate circumstances. Here the trial judge did actually look at the father’s income over those three years. What he did not do was average the income over those three years. There is no requirement that he do so.

VI. COMMENCEMENT DATE OF SPOUSAL SUPPORT OBLIGATION

[51] The trial judge ordered the payment of spousal support commencing January 1, 2012. The mother argues that the trial judge erred because he did not order spousal support from the commencement of proceedings on October 16, 2007.

[52] We do not agree. The mother’s argument ignores the interim, interim support orders made prior to trial and the fact that she remained in exclusive possession of the matrimonial home – and the father was required to pay all expenses related to the home – until it was sold in March of 2009. The parties separated on October 16, 2007. On November 2, 2007, Gauthier J. ordered the father to pay the mother the sum of $5,000 as spousal support, awarded the mother exclusive possession of the matrimonial home, and ordered the father to pay all expenses related to the home, on an interim, interim basis. On January 31, 2008, Hennessy J. ordered the father to pay spousal support at the rate of $1,100 per month, effective February 1, 2008. On June 4, 2009, Hennessy J. ordered that, effective July 1, 2009, the father pay spousal support at the rate of $1,054 per month, based on an annual income of $85,000. Indeed, the trial judge concluded that the father effectively overpaid spousal support for those periods and awarded him a credit.

VII. TERMINATION OF CHILD SUPPORT FOR ASHLEY

[53] The mother argues that the trial judge erred by terminating child support for Ashley on April 30, 2012, upon the completion of her final year of undergraduate studies. We disagree.

[54] Again, some background is necessary.

[55] The father is not Ashley’s biological father. The mother became pregnant with Ashley while in high school. The parties met about two years after Ashley was born and, after they married, the father adopted her. The father learned that Ashley’s biological father’s spouse was a professor at Laurentian University, where Ashley was studying. After the parties separated, he approached the biological father to see if, through that connection, Ashley could obtain free tuition. Ashley, who had not had any contact with her biological father since shortly before her fourth birthday, was incensed and has not spoken to the father since. The trial judge characterized the father’s contact of the biological father as “ill-advised” and Ashley’s reaction as “predictable”.

[56] At trial, Ashley was in the final year of her undergraduate degree and employed part-time. She planned to pursue graduate level studies and, since the trial, has done so. There was no evidence as to the amount of her expenses at the time of trial, and the trial judge did not order s. 7 (special or extraordinary) expenses. The trial judge therefore ordered the father to continue to pay child support for Ashley until the completion of that school year – April 30, 2012. He expressed the hope that the payments had and would be continued to be used to assist her with her educational expenses. The trial judge concluded, at para. 188, that, “it would be unreasonable for her to expect to be supported by him during the pursuit of a graduate degree, especially when she refuses to even speak to him.”

[57] The mother argues that the fact that Ashley is not speaking to her father should not disentitle her to continued support during her graduate studies, particularly because his conduct was the cause of the alienation.

[58] Without considering whether Ashley’s termination of contact with the father would have entitled him to cease paying child support, the mother’s submission mischaracterizes the trial judge’s reason for ending support for Ashley as of the end of her undergraduate degree. There was extensive evidence before the trial judge of the family’s limited financial resources. While parents of significant means may be ordered to pay support for a second degree, support for a second degree is very much subject to the parents’ ability to pay: N. (W.P.) v. N.(B.J.), 2005 BCCA 7, 249 D.L.R. (4th) 352. The trial judge concluded that, within the context of this family, it was appropriate that the father’s support obligation to Ashley end with her undergraduate studies. We agree. While the trial judge adverted to the lack of contact, it was an additional, not a determinative, factor.

VIII. IMPUTATION OF INCOME TO THE MOTHER EFFECTIVE TWO AND ONE- HALF YEARS AFTER HER RETURN TO SUDBURY

[59] The mother raised in her factum the issue of imputing income to her effective two and one-half years after her return to Sudbury. She did not raise this in oral submissions. We will address it briefly.

[60] The trial judge considered spousal and child support payable if the mother stayed in Mississauga and if the mother returned to Sudbury. The evidence was that the mother earned $45,000 per annum at her Mississauga-based job. The trial judge first concluded that if the mother remained in Mississauga she would be entitled to support for five years, commencing January 1, 2012. For the period January through April, 2012, spousal support was fixed at $600 per month. For the remainder of the period, spousal support was to be payable at $750 per month.

[61] The trial judge then determined that if the mother returned to Sudbury, she was capable of returning to the work force within a period of two and one-half years. For the first two and one-half years, she would be entitled to support of $1,300 per month. Thereafter, she would be entitled to the same support as if she had remained in Mississauga, namely the $750 per month that assumed that she was earning $45,000 per year.

[62] The trial judge specifically noted, at para. 195, that if there were a material change in circumstances, either party could apply to vary his order, and failure of the mother’s future employment to materialize would constitute a material change sufficient to warrant review.

[63] The parents have spent a great deal on legal fees they can ill-afford. Under these circumstances, the trial judge strived, admirably, to create a framework that addressed the various possibilities and would reduce the need of the mother and father to return to court. The trial judge made no error by attempting to estimate the mother’s future income.

IX. retirement period SPOUSAL SUPPORT

[64] The mother and father both take issue with the trial judge’s order for periodic spousal support payable when the father retires, calculated with reference to the father’s pension.

[65] Factors to consider in determining the amount and duration of support are set out in subsection 33(9) of the Family Law Act, R.S.O. 1990, c. F.3, as amended.

[66] On October 22, 2008, the father made an assignment into bankruptcy. The matrimonial home was sold in March of 2009. The father’s share was paid to his trustee in bankruptcy; the mother’s share was paid to her. The father’s employment pension (with the exception of contributions made within 12 months of the date of bankruptcy) was an exempt asset under s. 67(1) of the Bankruptcy and Insolvency Act, R.S.C., 1985, c.B-3 and survived bankruptcy. The parties agreed that the mother’s entitlement to an equalization of net family property became unenforceable as a result of the father’s bankruptcy. At trial, the mother sought lump sum support in an amount equal to 50 per cent of the father’s pension.

[67] The trial judge ordered the father to pay the mother an amount equal to one-half the value by which his pension increased between the date of marriage and the date of separation by means of periodic spousal support commencing on the first day of the month following the earlier of the date upon which he retires or the date upon which he is first eligible to retire. At trial, there was no evidence as to this value, and the trial judge did not indicate the amount or duration of the periodic, retirement-period support payments.

[68] By the time of the appeal, the parties had received information that this value is $54,000.

[69] The father argues that the trial judge erred in two respects in awarding retirement-period support. First, the trial judge did not consider whether the mother would have been entitled to an equalization payment, but for the bankruptcy. Second, the award of retirement-period spousal support, calculated with reference to his pension, amounted to a re-allocation of capital in the guise of spousal support.

[70] The mother argues that the trial judge erred in failing to order immediate payment of lump sum support in the amount of $54,000. She requests that this court now make that order and suggests that this amount may be available to the father from the pension to satisfy a family law award. The mother also argues that the trial judge failed to consider the possible impact of the father’s death prior to, or early in, his retirement in crafting his support order.

[71] The Supreme Court has stressed the need for significant deference to trial judges in relation to support orders, noting that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. This approach promotes finality in family law litigation and recognizes the importance of the trial judges’ appreciation of facts in this context: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518.

[72] The trial judge engaged in a thorough analysis of the interaction between bankruptcy and family law as discussed by the Supreme Court of Canada in Schryer v. Schryer, 2011 SCC 35, [2011] 2 S.C.R. 605 (S.C.C.). In particular, at para. 37 of that decision, the Supreme Court of Canada acknowledged the inequity that arises where a bankrupt is released from an equalization claim and permitted to retain an exempt asset. It also posited that a support order might be used to mitigate the inequity.

[73] The trial judge concluded that without a further order of spousal support payable at a point in time when the parties will retire, the task of reconciling the economic advantages enjoyed by the father and the economic disadvantages suffered by the mother as a result of the duties assumed by the mother during the course of their cohabitation would not be complete. While it is true that the trial judge, in ordering retirement-period support equal to one-half the value by which the father’s pension increased between the date of marriage and the date of separation, might appear to have conflated the principles relevant to equalization payments versus spousal support awards, the amount awarded for spousal support is not unreasonable in this case and we would not disturb the order.

[74] As for the mother’s argument that the trial judge should have made an order for an immediate payment of a lump sum, we see no basis to interfere. The trial judge considered the effect of the Supreme Court’s decision in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 as well as this court’s discussion about lump sum spousal support payments in Marriano v. Marriano, 1992 CanLII 14022 (ON CA), [1992] O.J. No. 2730 and more recently in Davis v. Crawford, 2011 ONCA 294, 106 O.R. (3d) 2011. Ability to pay is one of the factors to consider in making any award for spousal support. Here, while the father could apply for an immediate transfer of a lump sum from his pension plan for the purposes of satisfying an equalization payment order, the eligibility requirements under subsection 67.3(1) of the Pension Benefits Act, R.S.O. 1990, c P.8 do not apply to a transfer to satisfy a spousal support order. The Family Law Act mirrors this by providing at subsection 10.1(3) that an order to satisfy an equalization payment may provide for the immediate transfer of a lump sum out of a pension plan, but not for any other division of a spouse’s interest in the plan.

[75] Absent any evidence from the mother that the pension plan would allow for an immediate transfer to satisfy a spousal support award, we see no error in the trial judge’s assessment that the father would have no ability to immediately satisfy an order for lump sum support in the amount of $54,000.

[76] We are, however, persuaded that the trial judge failed to consider the risk to the mother if the father dies before he retires or is eligible to retire, or before he has paid a total of $54,000 of retirement-period support to the mother. On an application for support, the court may make orders requiring that a spouse who has an interest in a pension plan designate the other spouse under the plan and not change that designation, and securing payment, by a charge on property or otherwise. See ss. 34(1) (j) and (k) of the Family Law Act.

[77] We would accordingly add to the trial judge’s order that any portion of the total of $54,000 of retirement-period support not yet due and payable at the time of the father’s death shall become due and payable upon the father’s death and, together with any retirement-period support due and unpaid at the time of the father’s death, be paid out of any amounts payable out of or in respect of his pension as a result of, or subsequent to, his death. (Unfortunately, no details were provided to the court with respect to survivor benefits under the father’s pension plan.) Further, the father must maintain the mother as a designated beneficiary of the pension plan, to the extent of her entitlement to retirement-period support totalling $54,000. Any amounts of retirement-period support due but unpaid at the time of the father’s death would of course also be liabilities of his estate.

[78] As the parties submit, the trial judge’s order does not specify the amount or duration of the periodic, retirement-period support payments. Since the trial, the parties were able to quantify the total amount of retirement-period support ordered by the trial judge, namely $54,000. Armed with this information not available to the trial judge, and in an attempt to avoid a further costly attendance by the parties, we also add to the order that periodic retirement-period support be paid at the rate of $1,054 per month prior to the father’s death, until a total of $54,000 has been paid. This is the amount of monthly spousal support that Justice Hennessey ordered the father to pay prior to trial, in addition to child support in the amount of $2,500 per month. While the father’s income will be presumably reduced in retirement, he will similarly presumably have no child support obligations, and the $1,054 will not be an unreasonable amount for him to pay. It is of course open to the parties to seek to vary this order in the event of a material change in circumstances.

X. NO OPPORTUNITY TO MAKE COST SUBMISSIONS

[79] The trial judge indicated that, as success in the matter was mixed, neither party would be awarded costs.

[80] The mother argues that the trial judge erred because he failed to obtain and consider cost submissions before making this order. She argues that there were settlement offers that might have affected the costs award.

[81] Subrule 24(6) of the Family Law Rules provides that where success in a case is divided, the court may apportion costs as appropriate. Success, as the trial judge found, was divided.

[82] Subrule 2(2) of the Family Law Rules indicates that the primary objective of the rules is to enable the court to deal with cases justly. Subrule 2(3) provides:

Dealing with a case justly includes,

(a) ensuring that the process is fair to all parties;

(b) saving expenses and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[83] Subrule 18(14) of the Family Law Rules does provide that a party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date so long as a number of conditions are met.

[84] However, the burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14). In this case, the burden lies with the mother. While it is true that the trial judge’s decision not to solicit cost submissions may have frustrated her ability to meet this burden at trial, she also did not file fresh evidence on this appeal of any settlement offers. Since the mother has not met her burden of proof, we see no reason to interfere with the trial judge’s order as to costs.

XI. THE FATHER’S REMAINING ISSUES: THE CALCULATION OF SECTION 7 EXPENSES AND ARREARS

[85] With the exception of his submissions about the calculation of his share of s. 7 (special or extraordinary) expenses and the trial judge’s calculation of arrears, we have addressed the father’s submissions in the course of responding to the issues raised by the mother. We now address his two remaining submissions.

[86] The father correctly submits that s. 3.1 of Schedule III of the Federal Child Support Guidelines, SOR/97-175, provides that spousal support paid shall be deducted for the purpose of calculating income for the purpose of determining an amount under s. 7 (special or extraordinary expenses) of the Guidelines. He argues that the trial judge failed to do so. However, in our view, properly read, the trial judge’s reasons contemplate that this will in fact be done.

[87] The trial judge found that, except with respect to Ashley, there was no evidence that s. 7 expenses were being incurred. (As noted above, in the case of Ashley, the father was not ordered to pay a share, given the absence of evidence as to the amount of those expenses). At para. 193, the trial judge wrote that the parties should bear any future s. 7 expenses in proportion to their incomes, in accordance with the Guidelines.

[88] The Guidelines require deduction of spousal support for the purpose of those calculations. The confusion arises from a passage at para. 194 of the trial judge’s reasons. The trial judge required that in the event that the mother returned to Sudbury, then commencing two and one-half years after her return, the s. 7 expenses, “shall be borne in proportion to [the father’s] income of $114,762 as against imputed income of the part of [the mother] of $45,000 per year.” In our view, given the trial judge’s earlier reference to the Guidelines, this should be interpreted as referring to the father’s imputed income of $114,762, less amounts then paid for spousal support. In any event, the issue does not appear to be significant. By the time that this sharing arrangement will come into effect, Denyca should be almost finished university, and the twins will still be far away from it. There may well be no s. 7 expenses during the applicable time. We therefore reject this ground of appeal by the father.

[89] As for the calculation of arrears, the trial judge determined what cash payments had been made to the mother, and the effect of Justice Hennessy’s order regarding arrears. In addition to not having raised the issue of the arrears in his notice of cross-appeal, the father has not established either that the trial judge made a palpable and overriding factual error in determining the amount that he had paid or erred in law in his interpretation of Justice Hennessy’s endorsement. There is no basis to interfere with his conclusion.

XII. ADJUSTMENTS TO THE TRIAL JUDGE’S ORDER AS THE RESULT OF THE PASSAGE OF TIME

(a) Custody and access

[90] Paragraph 6 of the trial judge’s order provides that if the mother is unable or unwilling to accept custody of the twins within 14 days of January 9, 2012, the father shall have custody of the twins. The father agrees that it would be unreasonable for the mother to have only 14 days to assume custody of the twins in Sudbury following the release of these reasons: she is working and must give notice. In addition, Denyca will finish the school year near the end of April.

[91] Accordingly:

(1) the mother shall notify the father in writing within ten days of the release of these reasons as to whether she is willing and able to accept custody of the twins in Sudbury on or before June 1, 2013, and, if she is willing and able to do so, the date on or before June 1, 2013 on which she shall do so;

(2) the father shall have interim custody of the twins pending receipt of such notice, and, if the mother advises that she shall assume custody of the twins in Sudbury on or before June 1, 2013, until the mother actually assumes custody of the twins in Sudbury in accordance with the notice; and

(3) if the mother fails to so notify the father, notifies the father that she is unable or unwilling to accept custody of the twins in Sudbury on or before June 1, 2013, or, having notified the father that she will accept custody of the twins in Sudbury on or before June 1, 2013, fails to accept custody of the twins in Sudbury on or before June 1, 2013 in accordance with her notification to the father, the father shall have custody of the twins.

(4) while the father has interim custody, the mother shall continue to have access to the twins every other weekend, in Sudbury or in Mississauga, in accordance with the current pattern of access; and

(5) otherwise, access shall be as ordered by the trial judge except that (i) during summer holidays, the parents shall share the children’s holidays on a two weeks about (as opposed to a week about) basis, with the non-custodial parent’s first two weeks to commence on the first Monday after the children finish the school year, and (ii) the custodial parent shall give the non-custodial parent at least one month’s notice of the specific dates on which the non-custodial parent shall have the children at Christmas with Christmas day to be alternated each year between the custodial and non-custodial parent.

(b) Support

[92] The stay order applied to the entire order of the trial judge, including the provisions relating to support. Accordingly, except for January and February 2013, for which the father made no payments, the father continued to pay child support of $2,500 per month with respect to all four children in accordance with the interim order of Justice Hennessy of January 31, 2008, and spousal support of $1,054 per month in accordance with Justice Hennessy’s interim order of June 4, 2009.

[93] The period pending appeal, during which the twins were in limbo, created a scenario not envisaged by the trial judge and has resulted in further over-payments of spousal and child support by the father, for which he should receive credit.

[94] The trial judge determined that for the period during which the mother was employed in Mississauga, she should receive spousal support in the amount of $600 per month until May 1, 2012, and thereafter at the rate of $750 per month.[^1] Therefore, the father over-paid spousal support at the rate of $454 ($1,054 - $600) per month for the ten months commencing July 1, 2011 and ending April 30, 2012, or a total of $4,540 for that ten- month period. For the eight months of May through December 2012, the father overpaid at a rate of approximately $304 ($1,054 - $750) per month, or a total of $2,432. He should accordingly be credited a total of $6972 ($4540 + $2432) for overpayment of spousal support in respect of the period July 1, 2011 through December 31, 2012.

[95] The trial judge’s order required the father to pay $2,470.02 in support for all four children in respect of the period January 1, 2012 to April 30, 2012. The father paid support at the rate of $2,500, resulting in a total overpayment in respect of that four-month period of $120. Thereafter, child support was payable at the rate of $2,076.58 per month, resulting in an overpayment of $423.42 ($2,500 - $2,067) per month for the eight months of May through December 2012, or a total of $3,387 for that eight month period. The father should accordingly be credited a total of $3,507 ($120 + $3,387) for overpayment of child support in respect of 2012.

[96] Thus, in total, the father should be credited $6,972 + $3,387 = $10,359 for these overpayments. This is in addition to the credits for overpayment of child support for 2009 and 2010 and spousal support for 2009 the trial judge provided for at paras. 228 and 230 of his reasons. As contemplated by the trial judge, these overpayments should be deducted from the arrears owing by the father. Should the overpayments exceed the arrears, the overpayments shall constitute a credit in respect of the spousal support payable in the post-retirement period. We understand that no payments have yet been made in 2013.

XIII. DISPOSITION AND COSTS

[97] The mother’s appeal is dismissed, except to the extent of the variation of the trial judge’s order provided for in para. 77 of these reasons to reduce the risk to the mother that the periodic, retirement-period support ordered by the trial judge would not be paid. The father’s cross-appeal is dismissed. However, the trial judge’s order shall be slightly varied and clarified, as indicated above. Given the divided success, there shall be no order as to costs of the appeal.

Released: Apr 8, 2013

“WKW” “Warren K. Winkler C.J.O.”

“Robert P. Armstrong J.A.”

“Alexandra Hoy J.A.”

[^1]: It appears to us that the trial judge made an error at para 231 of his reasons. At para. 207 of his reasons, the trial judge fixed support for the period that the mother lived in Mississauga prior to May 1, 2012 at the rate of $600 per month. He indicated that he would deal with the start date of that rate of support below, in his section dealing with retroactive support. In addressing retroactive support at para. 231, the trial judge determines that the “Mississauga rate” of support should commence on July 1, 2011. He then, however, uses the amount of $454 in his calculations in that paragraph, which he describes as roughly in the mid-range of the amount suggested by the Spousal Support Advisory Guidelines (SSAG). However, as indicated at para. 207 of his reasons, the range called for by the SSAG was between $485 and $1,036 per month. $ 454 was outside of the SSAG and is the amount per month by which the father had over-paid support if the correct rate was $600 per month. In our view, the trial judge intended the $600 per month amount referenced in para. 201 to apply during this period and we have made our calculations on this basis