Court of Appeal for Ontario

Date: May 4, 2017

Docket: C62292

Judges: Juriansz, Pepall and Miller JJ.A.

Between

J.J. Applicant (Respondent)

and

C.C. Respondent (Appellant)

Counsel

Hilary Goodman and Timothy P. Gronfors, for the appellant

Peter Harrison, for the respondent

Heard: April 27, 2017

On appeal from: The order of Justice Clayton Conlan of the Superior Court of Justice, dated May 25, 2016, with reasons reported at 2016 ONSC 3444.

Endorsement

[1] The appellant father and respondent mother, who had never married, had a child. They consented to a detailed 17-page final order dated September 19, 2012 that provided for joint custody, set out parenting principles, and provided for a parenting coordinator. An earlier final order dated August 20, 2009 ordered the father to pay child support in the amount of $220 a month. Both orders were issued by the Superior Court of Justice, Family Court in Barrie.

[2] The mother brought a motion to change the 2009 order to increase the child support payments. The father brought a motion to change the 2012 order to alter the child's primary residence from the mother's home in Owen Sound to his apartment in Toronto, and to give him final decision-making authority on all matters concerning the child. The motions to change were brought in Owen Sound, as the mother with whom the child lived had moved to Grey County. After a seven-day trial, the trial judge granted the mother's motion and dismissed the father's. The father has appealed to this court.

[3] This court has jurisdiction over the appeal, as under rule 15 (4) of the Family Law Rules a motion to change is considered a new case. Conlan J.'s order, despite the way it is styled, is a final order of the Superior Court of Justice. Owen Sound is not a Family Court location.

Judicial Interview with the Child

[4] The father submitted that the trial judge erred by conducting a judicial interview with the 10-year-old child. We do not agree. The father amended his motion on the third day of trial to change the child's residence. The mother sought an adjournment. The trial judge refused the adjournment, considering any additional delay to be against the best interests of the child, and proposed interviewing the child himself. The father consented. The trial judge ordered the transcript of the judicial interview sealed. The father requested it be unsealed but we found it unnecessary to do so. Given the father's late amendment, that determining the child's views in some other fashion would have occasioned delay not in her best interests, and the father's consent, we reject the father's contention the trial judge erred in interviewing the child himself.

Material Change in Circumstances

[5] The father submitted that the trial judge erred by finding there had been no material change in circumstances that justified a variation in custody or residency. The father argued that the end of Parenting Coordination and the friction between the parents constituted the change in circumstances. In finding no material change in circumstances, the trial judge considered and applied the correct test as described in Gordon v. Goertz, [1996] 2 S.C.R. 27.

[6] As the trial judge noted, the 2012 order contemplated the end of Parenting Coordination. It provided that the parents should return to the Parenting Coordinator for mediation/arbitration after parenting coordination had expired. We agree with the trial judge that the end of Parenting Coordination was not a material change and this argument fails.

[7] The father submitted that this court's decisions in Litman v. Sherman, 2008 ONCA 485, and Goldman v. Kudelya, 2017 ONCA 300, do not absolutely foreclose a change of circumstances arising out of continued conflict between the parents. He submitted that where the level of conflict has increased and has changed the nature of how it impacts the child, continued conflict should be recognized as a change in circumstances. We note that Benotto J.A. in the Goldman case left open the possibility that a change of circumstances could arise in a case of continuing conflict where the parenting plan had outright failed.

[8] In this case, it could not be said the parenting plan had failed as the father had not resorted to the avenues for resolving conflict that the 2012 order provided. We do not accept the father's submission that the trial judge erred by finding there had not been a change of circumstances in the custody and residency of the child.

Child Support and Retroactive Awards

[9] In relation to child support, the father had conceded at trial there had been a change in circumstances because his income had increased. He submits, however, that the trial judge erred in ordering the increased child support retroactive to January 2012 rather than to June 3, 2014, the date of the motion to change. He points out that in this case he has diligently complied with the 2009 support order, there is no evidence he did not disclose the increases in his income, and the mother made no earlier request for an increase in the support payments.

[10] In S. (D.B.) v. G. (S.R.), 2006 SCC 37, at para. 134, the court stated that "generally" a court should make "the award retroactive to the date when effective notice was given to the payor parent. But where the payor parent has engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive start date of the award." The court described the "date of effective notice" as the "default option". Once effective notice has been given, "the peer parent can no longer assume that the status quo is fair, and his/her interest in certainty becomes less compelling", at para. 121. The court added that awarding child support from the date of effective notice maintains a fair balance between certainty and flexibility, at para. 122. At paragraph 125, the court summarized its conclusions: "payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past."

[11] The court, at para. 99, did leave open the possibility that "retroactive support could be ordered where a payor parent engages in no blameworthy conduct." However, the court described that outcome as "conceivable".

[12] In paragraph 133, the court summed up its discussion of retroactive child support awards by saying:

In determining whether to make a retroactive award, a court will need to look at all the relevant circumstances of the case in front of it. The payor parent's interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, a court should consider whether the recipient parent has supplied a reasonable excuse for his/her delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail.

[13] In this case, the trial judge did not find any blameworthy conduct on the part of the father and did not find effective notice was given before the date of the mother's motion to change. Rather, the judge made the award retroactive based on the unrepresented father's apparent acquiescence with the total child support arrears calculation that the mother's counsel put to him on the stand. However, the transcript indicates the questions that were put to him did not indicate the start date on which the calculations were premised. We accept the father did not acquiesce in the payments being made retroactive beyond the date of the mother's motion to change.

[14] This was a case in which the general principle applied: the award should have been made retroactive to the date when effective notice was given to the payor parent.

Costs Set-Off

[15] In making the final order, the trial judge set off against the retroactive child support arrears owed by the father an unpaid $27,000 costs award made against the mother by the court in Barrie in January 2009. Subsequently, the mother had filed for bankruptcy in 2010, and the Bankruptcy Court had ordered her to pay 50% of that outstanding costs order. The trial judge had no basis for setting off the entire costs award, rather than 50% of the costs award, against the total retroactive child support arrears.

Disposition

[16] We would allow the appeal and vary the order below so that increased child support payments are retroactive to June 3, 2014, the date of the motion to change, and set off only 50% of the outstanding costs award against those arrears. In other respects, the appeal is dismissed.

"R.G. Juriansz J.A."

"S.E. Pepall J.A."

"B.W. Miller J.A."