Rosenberg v. Gold
Ontario Reports
Court of Appeal for Ontario,
Cronk, Blair and MacFarland JJ.A.
July 13, 2016
132 O.R. (3d) 116 | 2016 ONCA 565
Case Summary
Family law — Property — Equalization of net family property — Unequal division — Spouses agreeing that husband would use money from their joint line of credit to make contribution to his RRSP which resulted in substantial tax advantages for family — Trial judge finding that use of joint funds did not make equal division of net family property unconscionable and rejecting wife's claim for unequal division under s. 5(6) of Family Law Act — Wife appealing and seeking order granting her 50 per cent interest in post-separation increase in value of husband's RRSP on basis that trial judge had awarded husband 50 per cent interest in matrimonial home based on resulting trust — Appeal dismissed — Wife not pleading entitlement to RRSP on trust or other grounds at trial — Wife impermissibly seeking to accomplish indirectly what she failed to accomplish directly at trial — Family Law Act, R.S.O. 1990, c. F.3, s. 5(6).
Family law — Support — Child support — Retroactive child support — Father's failure to automatically increase child support payments when his income increased not amounting to blameworthy conduct when viewed in context of his overall compliance with his child support obligations — Trial judge not erring in declining to award retroactive child support.
Family law — Support — Spousal support — Retroactive spousal support — Wife not seriously pursuing claim for spousal support before trial — Trial judge taking appropriate factors into account and not erring in declining to grant retroactive spousal support.
The parties separated in 2010 after a 15-year marriage. At the time of separation, the matrimonial home, which had been purchased with funds provided jointly by the parties and maintained primarily through the husband's income, was registered in the wife's name. In 2009, the parties agreed that the husband would make a $99,900 RRSP contribution using money that came from their joint line of credit, which resulted in substantial tax advantages for the family. The trial judge granted the husband's claim for a 50 per cent beneficial interest in the matrimonial home on the basis of a resulting trust, dismissed the wife's claim for an unequal division of net family property pursuant to s. 5(6) of the Family Law Act ("FLA") and her claims for retroactive child and spousal support and [page117] granted prospective child and spousal support. The wife appealed, seeking to set aside the order dismissing her claims for retroactive support and arguing that the trial judge should have awarded her a 50 per cent interest in the post-separation increase in the value of the husband's RRSP.
Held, the appeal should be dismissed.
The trial judge did not err in finding that the use of the joint funds to make the RRSP contribution -- particularly given the wife's full agreement with the investment and the fact that the sizeable tax refund had been used to benefit the family -- did not make an equal division of net family property unconscionable, as required by s. 5(6) of the FLA. The wife's argument on appeal -- that having awarded the husband an equitable interest in the matrimonial home on the basis of a resulting trust, the trial judge should have awarded her an interest in the husband's RRSP on the same basis -- was not made at trial. The wife had not pleaded or claimed at trial that she was entitled to any interest in the RRSP, either on trust grounds or on any other basis. By recasting her unsuccessful claim for an unequal division of net family property as a different claim for a post-separation proprietary remedy, the wife was impermissibly seeking to accomplish indirectly what she had failed to accomplish directly under s. 5(6) of the FLA.
The wife did not seriously pursue a claim for spousal support in the period between the date of separation and the date of the trial, and her delay in seeking support was not adequately explained. In denying the wife's claim for retroactive spousal support, the trial judge took the relevant factors into account and made no error in his conclusions.
The fact that the husband did not automatically increase the amount of child support he was paying when his income increased did not amount to blameworthy conduct when viewed in the context of his overall compliance with his child support obligations, including his over-fulfillment of his child support obligations during certain periods.
S. (D.B.) v. G. (S.R.), [2006] 2 S.C.R. 231, [2006] S.C.J. No. 37, 2006 SCC 37, 270 D.L.R. (4th) 297, 351 N.R. 201, [2006] 10 W.W.R. 379, J.E. 2006-1543, 61 Alta. L.R. (4th) 1, 391 A.R. 297, 31 R.F.L. (6th) 1, EYB 2006-108061, 149 A.C.W.S. (3d) 626, consd
Other cases referred to
Bremer v. Bremer, 2005 3938 (ON CA), [2005] O.J. No. 608, 13 R.F.L. (6th) 89, 137 A.C.W.S. (3d) 597 (C.A.); Buik Estate v. Canasia Power Corp., [2015] O.J. No. 2511, 2015 ONCA 352, 9 E.T.R. (4th) 1, 73 C.P.C. (7th) 235, 253 A.C.W.S. (3d) 826; Kaiman v. Graham, [2009] O.J. No. 324, 2009 ONCA 77, 45 E.T.R. (3d) 163, 245 O.A.C. 130, 75 R.P.R. (4th) 157; Kerr v. Baranow, [2011] 1 S.C.R. 269, [2011] S.C.J. No. 10, 2011 SCC 10, 274 O.A.C. 1, 328 D.L.R. (4th) 577, 2011EXP-624, 411 N.R. 200, J.E. 2011-333, [2011] 3 W.W.R. 575, 64 E.T.R. (3d) 1, 14 B.C.L.R. (5th) 203, 300 B.C.A.C. 1, 93 R.F.L. (6th) 1, EYB 2011-186472, 199 A.C.W.S. (3d) 1214; Serra v. Serra (2009), 93 O.R. (3d) 161, [2009] O.J. No. 432, 2009 ONCA 105, 307 D.L.R. (4th) 1, 246 O.A.C. 37, 61 R.F.L. (6th) 1; Taylor v. Taylor, 2004 42952 (ON SC), [2004] O.J. No. 4802, [2004] O.T.C. 1053, 10 R.F.L. (6th) 202, 135 A.C.W.S. (3d) 274 (S.C.J.); Ward v. Ward (2012), 111 O.R. (3d) 81, [2012] O.J. No. 3033, 2012 ONCA 462, 293 O.A.C. 63, 99 C.C.P.B. 1, 352 D.L.R. (4th) 201, 26 R.F.L. (7th) 358, 217 A.C.W.S. (3d) 395; York Region Condominium Corp. No. 890 v. RPS Resource Property Services Ltd., [2012] O.J. No. 4585, 2012 ONCA 670, 6 B.L.R. (5th) 171 [page118]
Statutes referred to
Family Law Act, R.S.O. 1990, c. F.3, s. 5(6), (a), (b), (c), (d), (e), (f), (g), (h)
APPEAL from the order of J.P. Moore J. of the Superior Court of Justice dated May 11, 2015 and the costs order dated July 8, 2015.
D. Smith, for appellant.
Gary S. Joseph and Kristy A. Maurina, for respondent.
The judgment of the court WAS delivered by
BLAIR J.A.: —
Overview
[1] The appellant, Lorna Gold, and the respondent, David Rosenberg, separated in January 2010, after an approximate 15-year marriage. They have three children: S., who was 15 at the time of trial, and M. and B., who are twins aged 13 at the time of trial.
[2] At the time of separation, the family lived in a matrimonial home that had been purchased with funds provided jointly by the appellant and the respondent and maintained primarily through the respondent's income as a lawyer. The home was registered in the name of the appellant, however.
[3] There was no issue at trial, nor is there on appeal, with respect to custody and access. The parties have worked out a shared custody arrangement. For a period of time following the separation, all three children lived primarily with the appellant. In May 2013, M. moved in with the respondent, and in January 2014 was joined by B. Since then, S. has lived primarily with the appellant and M. and B. with the respondent. Child care considerations did underlie a good part of the debate over child and spousal support claims (both retroactive and ongoing), however.
[4] After an eight-day trial, Moore J. granted the respondent's claim for a 50 per cent beneficial interest in the matrimonial home, on the basis of a resulting trust. He dismissed the appellant's claim for an unequal division of net family property pursuant to s. 5(6) of the Family Law Act, R.S.O. 1990, c. F.3 and her claims for retroactive child and spousal support. He granted child and spousal support on a going-forward basis.
[5] The appellant seeks to set aside the order dismissing her claims for retroactive child and spousal support. In addition -- although she does not now contest the trial judge's finding that the respondent is entitled to a beneficial interest in the [page119] matrimonial home, or seriously contest the dismissal of her claim for an unequal division of net family property -- she argues that the trial judge erred by failing to award her a 50 per cent interest in the respondent's RRSP (or at least what she characterizes as a countervailing "rollover" of a 50 per cent interest in the post-separation increase in value of the RRSP) based on the same trust principles he applied in the matrimonial home analysis. She also says the trial judge erred by failing to allow her credit for various post-separation payments she says were made by her on account of: (i) maintenance, preservation and financing of the matrimonial home; (ii) interest payments on the respondent's debts and the parties' joint debts; and (iii) payment of life insurance premiums on the respondent's life insurance.
[6] For the reasons that follow, I reject these submissions.
Factual Summary
[7] The respondent is a lawyer who worked in private practice until 2003, when he moved in-house at an infrastructure development company. He was terminated from that company in October 2010, and received a severance package equivalent to 11 months' salary in lieu of notice. After 19 months, he found employment as in-house counsel with a similar company, where he continues to work. By 2015, his salary had increased to $227,000, including a substantial bonus. Following the separation, he was diagnosed with cancer and he has had some health struggles since that time. He was 53 at the time of trial.
[8] The appellant is a social worker who has been employed at the Catholic Children's Aid Society ("CCAS") since her graduation in 1985. She worked full-time until S.'s birth, and then in a job share function on a part-time basis until the twins were born. She returned to work and continued on a part-time basis from early 2001 until June of 2011, when she returned to full-time work. Her income in 2014 was approximately $84,000. She was 52 at the time of trial.
[9] The parties initially maintained the status quo following separation. The respondent continued to deposit his salary into one or another of the parties' joint accounts, from which all family expenses were paid. After his termination, the respondent arranged for his salary to continue until he negotiated a severance package, which was accomplished in January 2011. Those funds, too, were paid into a joint account. After he received the balance of his 11-month severance package by way of a lump sum, the severance payments were contributed to the family, as the trial judge found. Beginning in February 2011, the arrangements for payment were changed at the request of the appellant. From that point on, until his severance ran out in August 2011, the respondent made monthly payments in accordance with an expense list provided to him by the appellant. [page120]
[10] When the respondent found employment with his present employer, on a six-month $87,000 contract basis, in May 2012, he began to make child support payments in the amount of $1,648 per month. These payments continued through December 2013, by which time he had been receiving a higher permanent-employee salary for almost a year. In January 2014, pursuant to a consent order issued by Frank J. (following an earlier settlement conference), the respondent began paying child support in the amount of $2,032 per month for the two children then living with the appellant (S. and B.), based on his then annual salary (the "consent order"). The $2,032 represented "the 2:1 set off of the $2,833 table amount for two child[ren] based on a $222,000 annual income for the [respondent] and the $801 table amount for one child based on a $90,000 income for the [appellant]".
[11] The consent order was "predicated on M. . . . living on a primary basis with the [respondent] and S. and B. living on a primary basis with the [appellant]". Within a week or so of the order, however, M. moved in with her father, together with B., and that has been the living arrangement since then. No adjustment was made to the monthly $2,032 child support paid by the respondent to account for that change.
[12] The consent order of Frank J. also provided that the respondent was to maintain his life insurance policy in the face amount of $2 million, name the appellant and the children as beneficiaries, and pay 50 per cent of the monthly premium of $617.40. The respondent did so. The respondent was also required to, and did, pay the monthly sum of $500 towards the monthly interest charges on the parties' joint Manulife line of credit.
[13] The consent order did not provide for spousal support, and none was sought at that time. The consent order was made without prejudice to either parties' claim "that some other amount of support should be paid" or as to "which party and in what proportion should be responsible for the payment of the interest under the Manulife LOC and the cost of the monthly insurance premiums".
[14] The appellant does not dispute that the respondent paid his salary into a joint account prior to receiving his lump sum severance amount, or that he paid her in accordance with the monthly expense lists she provided after February 15, 2011 until his severance ran out, or that he made the child support payments outlined above after May 2012. Whether the respondent [page121] made other payments or whether other payments should have been credited to him -- particularly in 2010 and 2011 -- was hotly contested at trial, however.
[15] Much time was spent by both parties at trial tracking and explaining their respective positions on post-separation income and expenses, and their various contributions, in relation both to the property and support issues (including with respect to the payments for which the appellant now claims compensation). In this respect, the appellant provided certain charts to the trial judge, to which I will return later. Suffice it to say here that the trial judge found the charts self-serving and unreliable. This had less to do with the accuracy of the numbers taken from the source banking and financial information and inputted into the charts, and more to do with the shades of meaning the appellant sought to give to the entries on the charts and the inferences the trial judge was being asked to draw. These, the trial judge did not accept.
Discussion and Analysis
[16] I turn now to the issues on appeal as earlier summarized and will address them in response to the following questions:
(1) Is the appellant entitled -- despite the dismissal of her claim for an unequal division of net family property -- to an order
(a) granting her a 50 per cent interest in the post-separation increase in value of the respondent's RRSP; and/or
(b) reimbursing her for various post-separation payments she says were made by her on account of
(i) maintenance, preservation and financing of the matrimonial home;
(ii) interest payments on the respondent's debts and the parties' joint debts; and
(iii) payment of life insurance premiums on the respondent's life insurance?
(2) Is the appellant entitled to receive retroactive spousal and/or retroactive child support?
Post-separation adjustments
[17] The trial judge found that the parties had contributed equally to the acquisition and continued carriage of the matrimonial home and that, although the home was registered in the [page122] appellant's name, the respondent was entitled to a 50 per cent beneficial interest in it. This finding is not contested on appeal. The trial judge dismissed the appellant's counterpoint claim for an unequal division of net family property, however, and although that disposition is not seriously contested on appeal either, it is the confluence of these two findings that leads to the appellant's assertion on appeal that she is entitled to an interest in the appellant's RRSP and to the various post-separation payment adjustments.
[18] I disagree.
The RRSP claim
[19] The appellant's RRSP claim is grounded in the fact that in March 2009, the respondent invested $99,900 in his Manulife RRSP for the taxation year 2008, using moneys that came from the parties' joint line of credit. This investment was discussed at length and done with the full agreement of the appellant because of the potential tax advantage that would ensue. Indeed, the investment yielded a tax refund of $55,471.96, which was paid into the parties' joint account and used to support the family.
[20] The appellant argued at trial that the remaining $44,429 used to fund the RRSP investment from the joint line of credit should be reallocated to reflect an unequal division of net family property pursuant to s. 5(6) of the Family Law Act. The trial judge dealt with the RRSP claim in that context, as it was put to him, and rejected it. He held that in all the circumstances the use of the joint funds to make the RRSP contribution -- particularly given the appellant's full agreement with the investment and the fact that the sizeable tax refund had been used to benefit the family -- did not make an equal division of net family property unconscionable, as required by s. 5(6).
[21] He made no error in this respect, in my view. He rejected the application of any of the specific categories of exceptions set out in s. 5(6)(a)-(g), including the appellant's argument that the respondent had incurred debts or other liabilities recklessly or in bad faith (s. 5(6) (b)), and any arguments that she had incurred a disproportionately larger amount of debts or other liabilities than the respondent (s. 5(6)(f)). This left the trial judge with the residual category in s. 5(6)(h) -- "any other circumstances relating to the acquisition, disposition, preservation, maintenance or improvement of property" -- and he held that the circumstances of this case did not rise to the very high level of unconscionability required to trigger the application of s. 5(6): see [page123] Ward v. Ward (2012), 111 O.R. (3d) 81, [2012] O.J. No. 3033, 2012 ONCA 462, at paras. 12-15; Serra v. Serra (2009), 93 O.R. (3d) 161, [2009] O.J. No. 432, 2009 ONCA 105.
[22] As this court stated in Serra, at para. 47:
In this regard, the threshold of "unconscionability" under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are "unfair", "harsh" or "unjust" alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must "shock the conscience of the court".
(Citations omitted)
[23] Serra was a case involving a market-driven increase in the husband's post-separation date assets. Here, the appellant seeks, in the alternative, to share in the post-separation increase in value of the respondent's RRSP. The same principles apply. There is no basis for interfering with the trial judge's findings and conclusion in this respect.
[24] On appeal, however, the appellant advances a new argument. She submits that, having awarded the respondent an equitable interest in the matrimonial home on the basis of a resulting trust, the trial judge should have awarded her an interest in the husband's RRSP on the same basis. There are at least two impediments to this argument, however -- one relating to procedural fairness, the other to substantive concerns regarding the integrity of the net family property regime under the Family Law Act.
[25] First, the appellant did not plead or claim at trial that she was entitled to any interest in the respondent's RRSP, either on trust grounds or any other basis. Nor did she make a claim for post-separation adjustments to compensate her for payments made for the respondent's benefit (with the exception of her claim to be reimbursed for payment of life insurance premiums). She contends that she did assert such claims, pointing to a provision in her amended answer and to a statement in her written submissions at trial. Neither support her contention, however. In para. 42(a) of her amended answer, the appellant made a series of allegations by way of defence against the respondent's claim for an interest in the matrimonial home, including the allegations that she had paid all expenses on the matrimonial home and the various interest payments on outstanding loans. In para. 42(a), her claim in the alternative was for "an order varying the equalization payment in her favour pursuant to section 5(6) of the Family Law Act" on the basis of unconscionability. Her written argument simply reinforced this claim.
[26] She failed in her s. 5(6) claim, however, and it would be unfair to permit her to seek essentially the same relief, dressed [page124] up as a different claim on appeal. See York Region Condominium Corp. No. 890 v. RPS Resource Property Services Ltd., [2012] O.J. No. 4585, 2012 ONCA 670, 6 B.L.R. (5th) 171; Taylor v. Taylor, 2004 42952 (ON SC), [2004] O.J. No. 4802, [2004] O.T.C. 1053 (S.C.J.), at paras. 61-66. This is consistent with this court's well-established practice not to entertain issues raised for the first time on appeal because the parties have not had an opportunity, in such circumstances, to focus on and prepare a record in that context: Buik Estate v. Canasia Power Corp., [2015] O.J. No. 2511, 2015 ONCA 352, 73 C.P.C. (7th) 235, at para. 10; Kaiman v. Graham, [2009] O.J. No. 324, 2009 ONCA 77, 245 O.A.C. 130, at para. 18.
[27] This leads me to the second concern regarding the integrity of the Family Law Act regime for the division of net family property.
[28] The additional difficulty with the appellant's contention is that it constitutes an impermissible attempt to recast her unsuccessful claim for an unequal division of net family property -- ostensibly in part to balance out the trial judge's finding that the respondent is entitled to a 50 per cent beneficial interest in the matrimonial home, based on their joint contributions -- in the guise of a different claim for a post-separation proprietary remedy and adjustments for the same kind of contributions and payments that would justify a s. 5(6) order. The claim is impermissible because it is wrong in principle -- given the overall scheme for the division of proprietary interests under the Act -- to permit the appellant to accomplish indirectly what she failed to accomplish directly under the Act. The Family Law Act contains its own scheme for the division of family property. Having failed under s. 5(6), it is not open to the appellant to attempt to obtain the same kind of benefits and adjustments in the way she now seeks to do.
Carrying costs of the matrimonial home and interest payments
[29] The foregoing considerations apply equally to the appellant's claims -- again, first asserted on appeal -- to be reimbursed for post-separation payments she says she made with respect to the carrying costs of the matrimonial home and interest payments on the parties' joint investment loans and the respondent's personal loan left over from his capital contribution to one of his former law firms.
[30] Although the trial judge did not specifically refer to these payments in his equalization/non-equalization payment analysis, he was well aware that the appellant asserted she had paid those expenses. As noted above, he heard a great deal [page125] of evidence regarding the parties' income and expenses, and who said what had been paid by whom. As I have noted, implicit in his finding that none of the particular exceptions set out in s. 5(6)(a)-(g) applied in the circumstances was his rejection of any argument that any of the respondent's debts or liabilities had been incurred recklessly or in bad faith (s. 5(6)(b)), or that the appellant had incurred a disproportionately larger amount of debts or other liabilities than the respondent for the support of the family (s. 5(6)(f)).
[31] Amongst the evidence before the trial judge was the following information:
(a) the respondent's full post-separation income and severance up until January 2011 were paid into the parties' joint account, from which all family expenses were funded;
(b) from February 2011 until his severance moneys ran out in August 2012, the respondent paid the appellant monthly -- at her request -- on the basis of a list of expenses prepared by her and setting out her needs; this list included payments for the appellant's expenses, the children's expenses, all expenses relating to the matrimonial home (including mortgage interest) and interest payments on the parties' joint indebtedness and the respondent's personal indebtedness;
(c) the appellant received these payments throughout 2010 and 2011 without paying any income tax on them and the respondent received no tax benefits in relation to them;
(d) in her 2010 and 2011 calculation, the appellant -- who was managing the household accounts -- gave herself credit for payments deposited into the accounts if she was the party who physically wrote the cheques or transferred the moneys to deposit, without recognizing that some of the moneys came from joint accounts to which the respondent was equally entitled and to which he had contributed;
(e) the appellant enjoyed exclusive possession and use of the matrimonial home throughout the post-separation period; and
(f) throughout that period she was writing off against her income 40 per cent of the amounts paid for mortgage interest, property taxes, utilities, Internet and cable with respect to the matrimonial home, and was at the same time receiving rental payments from tenants totalling about $9,000 per year. [page126]
[32] The trial judge made a finding -- relevant to the support issues as well -- that the combination of the moneys contributed by the respondent, the income earned by the appellant from the CCAS (including after she returned to full-time work in 2011) and the income earned from renting out an apartment in the matrimonial home "virtually made her whole". This finding was open to him on the record.
[33] In these circumstances, there were no grounds for awarding an unequal division of net family property based on considerations relating to the payments made by the appellant for carrying costs of the matrimonial home or -- to the extent any such payments were made (the evidence was conflicting on exactly how much would have been attributable to the respondent's account) -- for interest payments made on the various outstanding indebtedness. I note in this connection that the respondent's outstanding loan in relation to his former partnership debt had been reduced to something less than $14,000 by the time of separation; interest payments on such an amount would not have been significant in the overall scheme of things.
[34] These findings were all open to the trial judge on the record. Although made in the context of the appellant's claim for an unequal division of net family property, they apply equally to preclude a finding that the appellant is entitled to be reimbursed for the carrying costs and interest payments on some other equitable basis.
[35] That said, the same procedural and substantive concerns about maintaining the integrity of the Family Law Act mechanism for the division of family property, that I have outlined above with respect to the RRSP claim, apply to these claims for post-separation reimbursement. The claims are defeated for those reasons as well.
Payment of insurance premiums
[36] The trial judge also rejected the appellant's claim for reimbursement of insurance premiums she had paid on the outstanding $2 million Industrial Alliance policy on the respondent's life. He did require the respondent to maintain the coverage at his full expense on a going forward basis, however, in a reduced coverage amount (the $2 million face amount exceeded the amount reasonably required to secure the ongoing child and spousal support obligations he had awarded).
[37] I see no error in this treatment of the life insurance coverage and the prior payment of premiums. The premiums had been disbursed from the parties' joint account up to the change in arrangements, at the appellant's request, in February 2011, [page127] and paid from the moneys provided by the respondent in response to the appellant's list of expenses until the respondent's severance expired in August 2011. Thereafter, it appears that the appellant did make the premium payments out of her sources of funds until the consent order in January 2014. From that point on, the parties shared the premium payments equally.
[38] It does not follow from this, however, that the appellant is entitled to be reimbursed for the premium payments she made. She is a 50 per cent beneficiary of the policy (the children are the other 50 per cent beneficiaries). She will benefit from the respondent's payment of the full premiums from the date of trial forward. As I have said, the trial judge was fully aware of the evidence about the various claims and cross-claims respecting the various expense payments and made findings in that regard. He arrived at a global balance that was fair. I see no basis for setting aside his disposition respecting the payment of insurance premiums.
Conclusion on post-separation adjustments
[39] For the foregoing reasons, I would not give effect to the appellant's claims for an interest in the respondent's RRSP or for reimbursement of the various carrying charges relating to the matrimonial home, interest payments on indebtedness and insurance premiums.
Retroactive child and spousal support
[40] I would also refuse to give effect to the appellant's claims for retroactive support.
General considerations
[41] There is no dispute that courts generally have the power to award retroactive child and spousal support where warranted. Although the two claims are distinct, the considerations and criteria underlying both awards, and the arguments relating to them, overlap. That said, there remain differences in the approaches to them. Relying on the analysis of Bastarache J. in S. (D.B.) v. G. (S.R.), [2006] 2 S.C.R. 231, [2006] S.C.J. No. 37, 2006 SCC 37 (a retroactive child support case), Cromwell J. summarized this in Kerr v. Baranow, [2011] 1 S.C.R. 269, [2011] S.C.J. No. 10, 2011 SCC 10 (a retroactive spousal support case), at paras. 206-207, in the following way:
. . . I prefer to follow the example of Bastarache J. in [S. (D.B.)] and consider the relevant factors that come into play where support is sought in relation to a period predating the order. [page128]
While [S. (D.B.)] was concerned with child as opposed to spousal support, I agree . . . that similar considerations to those set out in the context of child support are also relevant to deciding the suitability of a "retroactive" award of spousal support. Specifically, these factors are the needs of the recipient, the conduct of the payor, the reasons for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support. I will mention some of those differences briefly, although certainly not exhaustively.
[42] The primary difference highlighted by Cromwell J. relates to the different legal foundations upon which child and spousal support are based. Child support is automatic; spousal support is not. Cromwell J. articulated this, at para. 208:
Spousal support has a different legal foundation than child support. A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth. In that sense, the entitlement to child support is "automatic" and both parents must put their child's interests ahead of their own in negotiating and litigating child support. Child support is the right of the child, not of the parent seeking support on the child's behalf, and the basic amount of child support under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), (as well as many provincial child support statutes) now depends on the income of the payor and not on a highly discretionary balancing of means and needs. These aspects of child support reduce somewhat the strength of concerns about lack of notice and lack of diligence in seeking child support. With respect to notice, the payor parent is or should be aware of the obligation to provide support commensurate with his or her income. As for delay, the right to support is the child's and therefore it is the child's, not the other parent's position that is prejudiced by lack of diligence on the part of the parent seeking child support: see [S. (D.B.)], at paras. 36-39, 47-48, 59, 80 and 100-104. In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse's legal interest. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support.
(Emphasis added; citation omitted)
[43] In the context of dealing with both retroactive spousal and retroactive child support claims, Kerr and S. (D.B.) both emphasize, in the end, "the need for flexibility and a holistic view of each matter on its own merits": Kerr, at para. 212; S. (D.B.), at para. 99.
[44] With these considerations in mind, I turn to the appellant's separate claims for retroactive spousal and child support.
Retroactive spousal support
[45] In keeping with these overlapping considerations applying to retroactive spousal and child support, the appellant argues that the trial judge erred in law by failing to follow what [page129] she submits is a three-staged approach set out in S. (D.B.): first, the court is to determine whether a retroactive order should be made; then, the court determines the quantum of the award; and finally, the court determines whether, on fairness factors such as hardship to the payor, the order ought not to be made.
[46] Although S. (D.B.) undeniably directs courts to consider these factors, I do not read it as setting out the rigid formula suggested by the appellant. In outlining the factors to be considered in determining whether a retroactive support order should be made, Bastarache J. referred to, and analyzed, (i) whether there was a reasonable excuse for why support was not sought earlier; (ii) the conduct of the payor (including the issue of blameworthy behaviour); (iii) the circumstances of the child; and (iv) hardship occasioned by a retroactive order. He did not relegate hardship considerations to a third stage of the inquiry after "entitlement" and quantum had been determined. The determination of quantum comes after the first stage inquiry: once a court determines that a retroactive support award should be ordered, it must decide the amount of the award "that would adequately quantify the payor parent's [or payor spouse's] deficient obligations during that time" (emphasis added): S. (D.B.), at para. 117). In addition, Bastarache J. premised his analysis of the circumstances in which retroactive support should be awarded by emphasizing, as noted above, that "[a]t all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix": para. 99.
[47] The appellant's submission that the trial judge erred by failing to identify the parties' incomes following separation, to quantify the payments made, to determine any shortfall and then to assess whether a further retroactive payment was necessary in accordance with the principles set out in S. (D.B.), must be read in that light.
[48] While the steps regarding quantification are appropriate, the appellant has the order of the analysis reversed. Here, the trial judge did not get to quantification because he held, on all the evidence, that an award of retroactive support was not warranted taking into account, as he was entitled to do at that stage, fairness considerations relating to the respondent's circumstances. This observation applies to his decision with respect to both retroactive child support and retroactive spousal support.
[49] The trial judge dealt with each claim for retroactive support separately. His reasons demonstrate that he considered and applied the relevant law and factors as set out in Kerr and S. (D.B.). He also referred to the principles relating to retroactive child support as articulated by this court in [page130] Bremer v. Bremer, 2005 3938 (ON CA), [2005] O.J. No. 608, 13 R.F.L. (6th) 89 (C.A.). The Bremer principles closely resemble those subsequently articulated in Kerr and S. (D.B.).
[50] In arriving at his decision not to award retroactive spousal support, and applying the relevant law and principles, the trial judge considered a wide range of factors. For the most part, his findings of fact reject the testimony and arguments of the appellant, many of which she continues to assert on appeal. These included the trial judge's findings that
(a) the appellant did not seriously pursue a claim for spousal support in the period between the date of separation and the date of trial, and her delay in seeking support was not adequately explained;
(b) there was only so much money to go around, the appellant knew the family finances well, and the respondent made no attempt to defeat his obligations to look after the family;
(c) there had been little, if any, change in the appellant's standard of living (and, to the extent there may have been, it was inevitable in any event of the separation, given the respondent's loss of employment at the time);
(d) the appellant had established no need to encroach on her capital;
(e) the underlying basis for the appellant's claim to retroactive support was weak, based on unreliable, "subjective and self-serving charts and summaries on income/expense issue", and given the acknowledged inaccurate information and errors contained in the appellant's first two financial statements (only corrected shortly before trial);
(f) the respondent had at all times "recognized his financial obligation to support his children" and had "acted reasonably in his efforts [to do so]";
(g) the combination of the money the respondent managed to contribute, the money the appellant earned from the CCAS (including after she returned to full time work in 2011) and her rental income "virtually made her whole";
(h) the respondent had received no tax relief from the payments he made (whereas the appellant had received those payments without paying taxes on them and, at the same time, was deducting the carrying costs on the matrimonial home and receiving rental income); and [page131]
(i) the impact of a retroactive award would create an unfair burden on the respondent, given his health issues, his age and the parties' respective financial situations.
[51] The appellant contests many of these findings and conclusions -- particularly those relating to the trial judge's focus and findings on her failure to give notice and her delay in asserting a claim for spousal support. She submits that the trial judge was simply wrong in holding that she "did not ask for spousal support after separation" and gave "no notice of any intention to seek spousal support or to negotiate with [the respondent] for it".
[52] On the surface, there may be something to be said for these submissions. There were discussions between the parties about how they would provide for the family's needs and expenses, and it may be that in the course of these discussions the appellant asked for more. The trial judge made no mention of the fact that the appellant sought child and spousal support both retroactively and prospectively in her answer filed in February 2012 shortly after the commencement of the application in December 2011. At the same time, however, the trial judge was correct in observing that the appellant did not apply for spousal support or for arrears of spousal support by way of motion at any time prior to trial. Even the consent order (made after the respondent's financial position had improved dramatically) did not contain a provision for spousal support, and none was sought at that time.
[53] While a spouse does not necessarily lose her right to spousal support by failing to litigate, the trial judge's finding with respect to delay is consistent with the appellant's failure to persuade him that she was in need of support in the circumstances and with his finding that the combination of the moneys the respondent was able to contribute and the appellant's income "virtually made her whole". When the trial judge's reasons are reviewed as a whole, I am satisfied that his comments about the failure to ask for spousal support and not giving notice of an intention to seek spousal support were made in the overall context of his view that the appellant had simply not provided a reasonable explanation for her delay by showing that she had actively asserted a claim for spousal support throughout.
[54] In this and the other respects, the foregoing findings of the trial judge were open to him on the record. They justified his conclusion that the appellant was not entitled to a retroactive award for spousal support based upon the law and other factors the jurisprudence identifies as applicable. There is no basis for this court to interfere with his decision. [page132]
Retroactive child support
[55] As I have said, many of the principles that apply to the determination of retroactive spousal support also apply to the determination of retroactive child support, with the necessary adjustments to give effect to the differing legal foundations for the two claims. The obligation to pay child support is automatic and exists from birth. The right belongs to the child, not to the recipient parent.
[56] Many of the factual findings and considerations referred to above apply equally in the context of retroactive child support.
[57] During oral argument, the appellant advised that she was not pressing her claim for retroactive child support for the 2010 and 2011 period following separation.[^1] For purposes of the retroactive child support analysis, it is also important to keep in mind the following. The appellant had no income between August 2011 (when his severance ran out) and May 2012 (when he obtained his contract position). From May 2012, the respondent paid child support based on the guidelines and a six-month income amount of $87,000.
[58] For practical purposes, then, the claim for retroactive child support applies to the period from October 2012 (when the respondent obtained fulltime employment at a higher salary) and the date of trial.
[59] From the review of the case to this point, it will be apparent that the trial judge did not accept the various charts and summaries put forward by the appellant at trial. In her factum on appeal, she presented a chart, prepared by her counsel but based on her charts and summaries, purporting to show yearly amounts for 2010 through 2014 of deposits/payments made by the respondent, withdrawals and expenses attributed to him for those periods, his "net payment on account of support", and his annual income (the "chart"). With the exception of the 2013 payments, the respondent accepts the appellant's numbers.[^2] But he does not accept the gloss placed on those numbers by the appellant. He says they do not present the whole picture, and the trial judge accepted that view with respect to the charts tendered at trial. [page133]
[60] However, even accepting the numbers contained in the chart in the appellant's factum for 2012-2014, the amounts paid by the respondent demonstrate that, overall, between the fall of 2012 and the end of 2014, the respondent had overpaid on his guideline child support obligations. The appellant contends that the payments shown on the chart for those years are properly netted out to show the set off between the respondent's and the appellant's respective child support obligations. I am not satisfied that the record supports this contention and the trial judge did not make any such finding.
[61] What the chart shows is that between October 2012 (when he obtained full-time employment at a higher salary) and January 2013, the respondent was paying child support in the amount of $1,680 per month (based on a guideline amount on a six-month salary of $87,000), when he should have been paying a higher amount based on his higher salary ($215,000 plus bonus), and that he continued to make payments on that basis through December 2013. Keeping in mind that M. moved in to live with him in May 2013, the respondent nonetheless concedes that he did not fulfill his child support obligations during that time by approximately $3,900 (on my calculations the amount could be approximately $4,250).
[62] Balanced against this shortfall, however, is the fact -- again, as demonstrated on the chart -- that during 2014, the respondent over-fulfilled his child support obligations by $13,908. This was because the $2,302 monthly amount paid pursuant to the consent order was premised on two children living with their mother and one with the respondent, whereas the reality was the reverse, and neither party saw fit to seek a change in that arrangement.
[63] Consequently, to adapt the language of S. (D.B.), at paras. 99 and 117, when the respondent's child support payments over the period from October 2012 to the date of trial are considered in a "holistic" fashion, it is apparent that the respondent was not in a position of "deficient obligations" in relation to child support "during the time" in question.
[64] The trial judge had all this information. He applied the proper legal principles. He made findings of credibility that were adverse to the appellant and declined to accept her view of the higher monthly amounts she said the respondent should be paying, having regard to what he found was the respondent's recognition of his obligation to support his children living with the appellant and his changing financial situation following the separation. He also held that the appellant's position overlooked the fact that she did not ask or demand that the respondent pay [page134] more support than he did. He arrived at an overall balance that he considered to be fair in all the circumstances.
[65] The appellant went to considerable lengths in her written and oral arguments to attempt to taint the respondent's conduct as blameworthy. This tactic warrants some comment in the circumstances, recognizing that the respondent lost his job within a few months of separation, was unemployed for 19 months, has had to deal with a cancer diagnosis and other health-related difficulties, and had responsibility for the expenses of the children living with him, during the post-separation period.
[66] It is clear from the trial judge's reasons that "blameworthiness" -- taken in the broad sense called for in S. (D.B.), and to the extent there was "blameworthiness" -- was not a one-sided affair on this record. The appellant pointed to what she characterized as the respondent's blameworthy conduct in failing to adjust his support payments immediately upon receiving his various salary increases and in failing to make proper disclosure. Counsel contended that S. (D.B.) establishes a "deemed blameworthy conduct" threshold in law in any case where a parent fails to make appropriate and timely adjustments to his or her child support payments following receipt of an increased income, and submitted that the respondent had clearly failed to do just that here.
[67] I make the following observations.
[68] First, I do not read S. (D.B.) as establishing any such "deemed blameworthiness at law" principle. The Supreme Court of Canada made clear that blameworthy conduct on the part of a payor spouse is an important factor in the retroactive support analysis, that what is "blameworthy" conduct is to be considered in an expansive fashion, and that a payor parent who knowingly diminishes his or her child support (including a failure to make reasonable upward adjustments in support where warranted) should not be allowed to profit from such conduct: paras. 105-107. However, a failure to increase support automatically does not necessarily amount to blameworthy conduct, which requires some form of conscious choice to ignore parental support obligations: paras. 107-108.
[69] Whether conduct is "blameworthy" is a question of fact or at least of mixed fact and law. It is a subjective question, informed by certain objective indicators: S. (D.B.), at para. 108. Here, the trial judge made no finding that the respondent had engaged in any blameworthy conduct. Indeed, he found that the respondent had "acted reasonably in his efforts to support his children" and had "made no attempt to defeat [his] obligations to look after the family". These findings are not consistent with [page135] blameworthy conduct and are entitled to deference. Even accepting that the respondent failed to fulfill his obligations by not being more alert to increasing his support payment commensurate with his increasing income, there were other factors in play which the trial judge took into account, as outlined above. In addition, the residential situation respecting the children was somewhat fluid during these periods.
[70] Second, while there were the customary dueling motions for disclosure by both parties, there is no evidence that the respondent was in default of any of his disclosure obligations, and the trial judge made no such finding.
[71] Finally, on the other side of the debate, I note that some of the appellant's own conduct could be looked at critically. She characterized payments made and moneys transferred as credits solely to her just because she was the person who wrote the cheques or transferred the moneys, without acknowledging that some of the payments came from sources to which the respondent was entitled. She deliberately failed to comply with a pre-trial undertaking to obtain certain information from a former lawyer. Her first two financial statements contained admittedly incorrect information that was not corrected until just before the date of trial. The trial judge did make findings on these difficulties.
[72] As is unfortunately often the case in family law matters, one or another, or both of the parties may be quick to play the "blameworthy" card against the other in the bitter and hotly contested environment that is the crucible for such disputes. I am not persuaded that anything is to be gained in the present case by labelling the conduct of either party in that fashion in these circumstances.
Conclusion on retroactive spousal and child support
[73] Although the appellant views the case from the perspective of her own testimony and what she sees as the respondent's blameworthy conduct, the trial judge did not accept much of her testimony or that the respondent's conduct was blameworthy. The foregoing findings were all open to him on the record. They applied equally to his assessment of both retroactive child support and retroactive spousal support.
[74] I see no basis for interfering with the trial judge's determination that the appellant was not entitled to receive either retroactive spousal support or retroactive child support.
Conclusion and Disposition
[75] The trial judge's reasons show that he was well aware of the factual matrix underlying the property and support issues [page136] that are the focal point of the appeal. In particular, he was aware of the parties' respective incomes throughout the pre- and post-separation periods, and of the details of the various payments made and expenses incurred. He heard lengthy testimony from both parties concerning all these matters. He arrived at a balance outcome that he considered to be fair. The appellant does not dispute that he had all the relevant information before him.
[76] An appeal is not a re-trial of the case, and I see no reversible error in law or palpable and overriding error of fact that would justify appellate intervention.
[77] Accordingly, I would dismiss the appeal, with costs payable to the respondent on a partial indemnity basis and fixed in the amount of $22,000, inclusive of disbursements and all applicable taxes.
Appeal dismissed.
[^1]: This concession related to the claim for retroactive spousal support as well, but did not become important in that context in view of the determination that the appellant had not made out a case for that relief.
[^2]: The appellant says the 2013 payments were $20,160, whereas the respondent says they were $27,853, a difference of $7,693 in favour of the respondent.