Court of Appeal for Ontario

Date: 2025-04-16
Docket: COA-23-CV-1179
Panel: Eileen E. Gillese, Sarah Gomery, Rochelle Pomerance

Between:
Dianne Pearl Douglas (Applicant/Appellant)
and
René Albert Faucher (Respondent/Respondent)

Appearances:
Cecil Lyon, for the appellant
Michael Stangarone and Kira Beck, for the respondent

Heard: April 11, 2024

On appeal from the order of Justice Martin S. James of the Superior Court of Justice, dated September 6, 2023, with reasons reported at 2023 ONSC 5026.

Reasons for Decision

Introduction

[1] This is an appeal from a final order dated September 6, 2023, in a family law proceeding, that decided matters of parental decision-making, parenting time, and child support (the “Order”). The appellant submits the motion judge erred in finding a material change in circumstances and in finding that the respondent’s parenting time met the annual 40% threshold required by s. 9 of the Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”). Accordingly, she seeks to set aside the motion judge’s determination of child support.

[2] After the appellant made submissions at the oral hearing of the appeal, the court advised the parties that it did not need to hear from the respondent. It then dismissed the appeal with reasons to follow. These are the promised reasons.

Background

[3] The parties were married in 2002, separated in 2013, and divorced in 2015. They have three children. The respondent father was catastrophically injured and has been a quadriplegic since 2010. He earns approximately $160,000 per year. The appellant mother earns approximately $200,000 per year. Her income has increased significantly since the divorce.

[4] In 2014, the parties commissioned a parenting assessment. The assessment report is dated June 6, 2014. It recommended a phased transition to a 50-50 parenting regime by September 2018. The parenting arrangements were set out in a consent final order dated January 12, 2015. A subsequent order dated December 11, 2015, dealt with the parties’ support obligations and property issues.

[5] In 2016, the parties implemented the first phase of the transition to equal shared parenting time. The respondent said he had 41% of the parenting time by 2017. However, the appellant refused to complete the transition to equal parenting time in September 2018.

[6] The respondent brought a motion to change (the “Motion”), seeking shared decision-making, equal parenting time, and an order for a retroactive adjustment to child support for the years 2017 and following, based on the parties’ incomes, pursuant to s. 9 of the Guidelines. The appellant responded by requesting sole decision-making authority and an order for continuation of the then-existing shared parenting time arrangement.

[7] The motion judge granted the Motion in part. He ordered the appellant to pay the respondent retroactive and ongoing child support but dismissed the respondent’s request for equal parenting time and the appellant’s request for sole decision-making.

[8] The parties disagreed on their respective amounts of parenting time. The motion judge gave detailed reasons for preferring the respondent’s evidence on that matter. He then found that the respondent’s parenting time exceeded 40% from 2017 to the time of the Motion. This was a change in circumstances from when the child support order was made in December 2015, at which time the appellant occupied the position of primary parent and the respondent had less than 40% of the parenting time.

[9] The motion judge did not accept the respondent’s submission that the court-ordered transition to equal parenting time should be implemented because he found that the parenting arrangement in place at the time of the Motion should be maintained. The children were teenagers settled in their current routine and appeared to be doing well, and there was no clear consensus among them as to whether there should be a change in parenting time.

[10] The motion judge found the respondent was entitled to a retroactive adjustment to child support because his parenting time had exceeded 40% since about 2017 and, as a result, he had significantly overpaid child support. The motion judge also found the appellant had resisted transitioning to equal parenting time to foreclose a discussion on adjusting child support in the respondent’s favour and that the appellant should not benefit from having refused to follow the previous court order on this matter.

[11] The motion judge noted that entitlement to an adjustment in child support is generally tied to the date on which the claimant gave effective notice of their claim and limited to the three years preceding the giving of notice. In this case, the respondent brought the Motion on February 11, 2019, with a proposed change date commencing September 1, 2016. The motion judge exercised his discretion and used January 1, 2018, as the start date for calculating retroactive child support. He explained that he chose that date because it fell within the range of reasonable possibilities and operated to the appellant’s advantage because it was after the date the respondent exceeded 40% of the total parenting time.

[12] The motion judge did not have adequate information to make an accurate assessment of who should pay how much child support after 2020. Thus, he provided the parties with a framework on which to calculate those amounts.

[13] In terms of retroactive child support, the motion judge relied on the principles set out in Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, which guide the courts in the application of s. 9 of the Guidelines. He noted that while the applicable tables provide a starting point, the court is to consider the condition, means, needs, and other circumstances of each parent and the children. While neither party had prepared specific child expense budgets, they had provided evidence of their childcare expenses.

[14] The motion judge varied the 2015 child support order to provide set-off child support, commencing January 1, 2018, based solely on the parties’ incomes, with credit to the respondent for the amount of his child support payments made since that date. Accordingly, the appellant is required to pay retroactive child support.

The Issues

[15] The appellant submits the motion judge:

1. failed to find a material change of circumstances since the underlying 2015 child support orders and, consequently, could not vary those orders;
2. erred in finding the respondent’s parenting time met the annual 40% threshold necessary to engage s. 9 of the Guidelines; and
3. failed to properly determine the quantum of retroactive child support.

Analysis

[16] We do not accept the appellant’s submissions.

[17] On the first issue, the motion judge found that the shared parenting arrangement in place since approximately 2017 led to the respondent having more than 40% of the parenting time. This was a material change in circumstances because when the underlying child support orders were made, the appellant occupied the position of primary parent and the respondent had less than 40% of the parenting time. Accordingly, we reject the appellant’s submission that the motion judge failed to identify a material change of circumstances.

[18] On the second issue, it was open to the motion judge to prefer the evidence of the respondent over that of the appellant on the amount of parenting time and to find that the respondent met the 40% threshold since at least January 1, 2018. He gave the following reasons for preferring the respondent’s evidence on this matter: it was based on specific overnight counts over a period of years; it did not exclude summer holidays and professional development days from the calculations; the respondent demonstrated in oral testimony that he had a good recollection of specific situations involving holidays; and, the respondent’s calculations were based on actual parenting times, rather than on a prospective basis.

[19] Based on the evidence that he accepted, the motion judge found that the respondent’s parenting time exceeded 40% from 2017 to the time the Motion was heard. He viewed the respondent’s hospitalization from the third week of January 2022 until June 2022 as more appropriately addressed in the context of child support obligations rather than as disturbing the parenting time analysis.

[20] We see no error in the motion judge’s approach to this issue and no basis for appellate intervention with his finding that the respondent’s parenting time exceeded 40% from 2017 onwards.

[21] On the third issue, we begin by noting that in using January 1, 2018, as the start date for determining the quantum of retroactive child support, the motion judge chose a date which operated to the appellant’s advantage. Next, we note the appellant’s concession that the motion judge correctly stated the governing legal principles as set out in Contino. We further note that arriving at a fair disposition of retroactive child support is a highly discretionary process.

[22] The law is clear that child support orders attract deference on appeal. The hearing judge’s findings and inferences of fact may not be disturbed on appeal absent an error on an extricable question of law, a palpable and overriding error, or a fundamental mischaracterization or misapprehension of the evidence: Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, at para. 30.

[23] We see no such error. On the contrary, the motion judge properly applied the Contino framework, taking into consideration the following: he was not dealing with an initial support order – the parties had a child support arrangement in place for several years, were aware of their childcare expenses, and had addressed those expenses in their affidavits and financial statements; the 2015 support order in favour of the appellant was for a negotiated amount that was significantly less than the table amount otherwise payable by the respondent, an altruistic gesture made possible because the appellant was not suffering the kind of financial hardship that would have made this concession impossible; both parties are well educated; both households have incomes well above the median family income in Canada; and, there was no evidence that the children had experienced significant differentials in their standard of living at either home nor that there is a substantial risk of such a differential developing in the future.

Disposition

[24] Accordingly, the appeal is dismissed with costs to the respondent in the agreed-on sum of $10,000, all inclusive.

“E.E. Gillese J.A.”
“S. Gomery J.A.”
“R. Pomerance J.A.”