Court of Appeal for Ontario

Date: 2023-06-23 Docket: C70947

Before: Simmons, Harvison Young and George JJ.A.

Between: Lixin Zhao, Applicant/Appellant (Appellant) And: Tian Xiao, Respondent/Respondent (Respondent)

Counsel: Michael J. Stangarone, for the appellant Timothy Matthews, for the respondent

Heard: May 31, 2023

On appeal from the order of Justice John S. Fregeau of the Superior Court of Justice, dated April 20, 2022, with reasons reported at 2022 ONSC 2401, affirming the order of Justice Danalyn J. MacKinnon of the Ontario Court of Justice, dated September 30, 2020.

Reasons for Decision

[1] This appeal arose out of an application for child support and related relief.

[2] The appellant mother submits that the application judge and the Superior Court appeal judge made three errors that warrant the intervention of this court. First, she submits that the application judge erred in dismissing her claim for retroactive child support from 2006 until 2013, although she granted it from 2013 forward. Second, she submits that the application judge erred in her approach to and calculation of the appellant mother’s share of s. 7 expenses. Third, she argues that the application judge erred in determining that child support should end when the children reach the age of 25.

[3] Following the oral hearing we dismissed this appeal for reasons to follow. These are our reasons.

A. Background

[4] The appellant mother and the respondent father divorced in 2003. They have two children together. They filed a joint affidavit in the divorce proceeding setting out agreements they had reached. Their agreements included the following provisions:

• the father would pay child support to the mother of $950 per month for each child “according to the child support guideline”;

• the amount of child support could be changed based on future changes in the husband’s income, based on 17% of the husband's gross income for each child to be paid monthly until each child reached the age of 18;

• if the wife remarried, the amount of child support would be reduced from 17% to 12.5% of the husband’s taxable income; and

• the matrimonial home would be transferred to the wife in exchange for a payment of $79,000 (later decreased to $74,600) in monthly instalments equivalent to the monthly child support commencing May 1, 2006, but to be repaid immediately upon the wife remarrying.

[5] The matrimonial home was transferred to the appellant pursuant to the agreement. Although she remarried in 2006, the appellant mother did not advise the respondent of this, and the payment for the matrimonial home was not paid on an accelerated basis as stipulated in the agreement. Nor did the respondent provide his annual income information, as would have been necessary to calculate the monthly child support payment to be offset against the amount owing on the property.

[6] The appellant lived in China from 2003 to 2011 and has been residing in the United States since July 2011. He also remarried.

[7] In November 2016, the appellant, having unsuccessfully sought disclosure from the respondent as to his income, commenced an application for child support and other relief.

B. Retroactive Child Support

[8] First, we reject the appellant mother’s argument that the Superior Court appeal judge erred in upholding the application judge’s decision not to award retroactive child support for the period of May 1, 2006 to June 2, 2013.

[9] The application judge found that the agreement between the parties that child support would be offset commencing May 1, 2006 by $74,600 owed by the mother to the father for the transfer to her of his share in the matrimonial home constituted special provisions that directly benefitted the children during this period. She therefore held that ordering child support for this period would be unfair and inequitable within the meaning of s. 37(2.3) of the Family Law Act, R.S.O. 1990 c. F.3.

[10] The Superior Court appeal judge found no error in this conclusion. We see no basis on which to interfere with this finding.

[11] We acknowledge that the application judge’s finding that the stipulation in the parties’ agreement for child support of $950 per child per month must have been an error was speculative and unfounded. However, this had no impact on the application judge’s ultimate child support calculations. As the mother had remarried in 2006, the application judge calculated the quantum of child support payable from 2006 to 2013 based on the 12.5% of the father’s income per child formula set out under the parties’ agreement. This amount was roughly equivalent to what would have been prescribed by the Federal Child Support Guidelines, SOR/97-175 for the same period. Based on these figures, the application judge concluded that the amount owing for child support from 2006 to 2013 was essentially offset by the amount the mother owed the father with respect to his share in the matrimonial home.

[12] While the appellant argued on appeal that the respondent had still not made proper disclosure of his income from 2006 to 2013, preventing her from calculating his child support obligation, the application judge set the father’s income for that period at $65,000 at the appellant’s own request. While financial disclosure is crucial to a just and effective family law system, there is no basis in these circumstances to interfere with the application judge’s determination of the father’s income and related child support calculations for the relevant period.

[13] Moreover, in assessing the date for commencement of retroactive child support, the application judge was entitled to consider the parties’ property agreement within the context of the special provisions set out in s. 37(2.3) of the Family Law Act. The parties’ property agreement was intertwined with the father’s child support obligations. Accordingly, the application judge made no error in considering it when determining what weight to assign to the father’s failure to notify the mother of changes in his income between 2006 and 2013. She also correctly considered and applied the considerations set out in S.(D.B.) v. G.(S.R.), 2006 SCC 37, 2 S.C.R. 231, as recently reconsidered and applied in Michel v. Graydon, 2020 SCC 24, [2020] S.C.R. 763.

[14] Nor do we see any merit in the appellant’s assertions that the terms of the parties’ agreement were somehow invalid or unenforceable. There are strong and well-known policy reasons for respecting agreements made between parties to family law proceedings whenever feasible. Chief among these are access to justice issues. Given the reality that many families cannot afford legal representation, and the fact that agreements between parties lessen the strain on scarce judicial resources, courts should attempt to give effect to such agreements. Here, importantly, the parties’ agreement benefitted both the children and the appellant mother, who were entitled to remain in the matrimonial home without any immediate payment obligation to the respondent.

C. Section 7 Expenses

[15] We also reject the appellant’s submission that the Superior Court appeal judge erred in upholding the application judge’s order that ongoing special and extraordinary expenses for the children be shared by the parties in proportion to their household incomes.

[16] Under s. 7 of the Federal Child Support Guidelines, the court may make an order for payment of such expenses taking account, among other things, of the reasonableness of the expense in relation to the means of the parents or spouses and those of the child.

[17] The respondent has remarried and is the sole supporter of his children and wife, who cannot work due to illness. By contrast, the application judge found that the appellant mother has been able to work in paid employment since 2008 but has decided not to, and that the children have been listed as her second husband’s dependents for benefits purposes. The record showed that her second husband has covered all of the oldest child’s educational expenses through his benefits as a university employee, along with the vast majority of medical and dental expenses. In these circumstances, the application judge decided to set each party’s share of s. 7 expenses based on their respective household income. While the guiding principle is that s. 7 expenses are to be shared by the parties in proportion to their own income, it was not unreasonable for the application judge to apportion the s. 7 expenses based on each party’s household income given the facts of this case.

D. The Termination Date for Child Support

[18] Finally, we reject the appellant's submission that the Superior Court appeal judge erred in upholding the application judge’s determination that child support should end upon each child’s 25th birthday.

[19] This was a discretionary determination by the application judge based on all the facts of this case, which included the parties’ original arrangement that child support would terminate at age 18. At this point, the older child is in medical school and the younger daughter is pursuing an undergraduate degree. There is nothing arbitrary or speculative about the selection of the age of 25 on the facts of this case. The application judge fully considered all the circumstances of the children and their parents. The Superior Court appeal judge saw no basis on which to interfere. We see no basis on which to interfere with his conclusion.

E. Conclusion

[20] In closing, we would underline the fact that the standard of review from orders resolving financial disputes in family law, which, as this appeal illustrates, is highly fact specific, is deferential: Lesko v. Lesko, 2021 ONCA 369, 57 R.F.L. (8th) 305, at para. 5, leave to appeal refused, [2021] S.C.C.A. No. 290. As the Supreme Court stated in Hickey v. Hickey, [1999] 2 S.C.R. 518, at para. 12, an appeal court should only intervene “when there is a material error, a serious misapprehension of the evidence, or an error in law”.

[21] The application judge and the Superior Court appeal judge both gave thorough consideration to the circumstances of the parties and their children, and to the parties’ agreement with respect to child support and the related treatment of the matrimonial home. The appellant was partially successful on the application and the respondent has been ordered to pay ongoing child support, including his proportionate share of s. 7 expenses, until the children turn 25. The appellant has not pointed to any error warranting the intervention of this court with respect to the aspects of the application judge’s order that she takes issue with.

[22] The appeal is dismissed. In accordance with the agreement of the parties, the appellant shall pay costs of the appeal to the respondent in the amount of $4000, inclusive of disbursements and applicable taxes.

“Janet Simmons J.A.”

“A. Harvison Young J.A.”

“J. George J.A.”