COURT FILE NO.: 457/08
DATE: 20081103
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
ONTARIO
RE: MICHAEL COWARD Appellant
- and –
MARIANN COWARD Respondent
BEFORE: CARNWATH, WILSON and KRUZICK JJ.
COUNSEL: Robert O’Brien and Christopher C. Sorely and Robert Mc Glashan for the Appellant Michael Coward Jennifer Lau for the Respondent Mariann Coward
HEARD AT TORONTO: OCTOBER 28, 2008
E N D O R S E M E N T
THE COURT.:
Nature of Appeal
[1] This appeal questions the quantum of child support ordered by Rogers J. on a motion heard February 5, 2008. The Appellant father asks that the order be set aside and varied, or alternatively, that the matter be returned to the court for a hearing.
Order on Appeal
[2] The order under appeal provides for support for one child pursuant to the child support guidelines based on an annual income for the father averaged over three years and 77% of the Federal Child Support Guidelines, SOR/97/175 (CSG) section 7 expenses.
[3] The motions judge interpreted the amending agreement entered into between the parties in September 2005 (the Amending Agreement). She concluded that the Amending Agreement provided for ongoing table child support whether or not the child was attending university away from home, as well as section 7 expenses. In the alternative, she concluded that the payment by the Appellant of table child support, and a percentage of section 7 expenses, were reasonable in the circumstances.
Outline of the Facts
[4] The parties were divorced on October 28, 1991. There is one child of the marriage, Laura, born on November 21, 1988. She is presently attending University in London, Ontario. She lives in shared accommodations. She turned 18 on November 21, 2006.
[5] The father remarried and then divorced again. He has two minor children from the second marriage and pays $2,970 support per month. He re-married for the third time in June 2007.
[6] The mother owns a custom home building business and is self-supporting. The mother and the child received an inheritance from the respondent’s mother.
[7] The December 4, 1991 Separation Agreement was incorporated into a court order.
[8] The terms of the Amending Agreement relevant to this appeal provide:
c) Commencing on July 1, 2006 and every year thereafter so long as child support is payable, the parties shall amend the child support payable pursuant to the Child Support Guidelines in accordance with the base guideline amount. For the purposes of determining “income” the parties shall average the last 3 years tax returns of the Respondent Father each year in order to determine the appropriate quantum. If the parties cannot agree then they shall continue with the current amount then in place and may take such court action as they deem appropriate to vary same.
The parties shall, within 2 years determine the appropriate sharing of the post-secondary education costs of the child. If they are unable to do so then either party may return the matter to a court of competent jurisdiction to determine.
Standard of Review
[9] The standard of review of an order for support is set out by the Supreme Court in Hickey v. Hickey, [1999] 2 S.C.R. 518 at paras. 10-11:
When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerable discretion by trial judges…Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed.
[10] An appeal courts should not therefore not interfere with a support order unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or the award is clearly wrong.
[11] This standard of review has been reaffirmed in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231 at para. 136.
[12] In this case the appellant argues that as the issues before Rogers J. involved the question of interpretation of a contract, that the standard of review is correctness. In our view, the issues raised with respect to the interpretation of the Amending Agreement involve questions of mixed fact and law, invoking a standard of review that is more stringent than for a pure question of fact, but less than correctness (see Housen v. Nikolaisen 2002 SCC 33, [2002] 2 S.C.R. 235).
Analysis
[13] The motions judge gave extensive reasons and an analysis of all issues raised by the father. The judgment clearly set out the questions before the court.
[14] The Appellant submitted that the Amending Agreement was intended to allow for a change based upon a material change in circumstances from the table amount when the child entered University.
[15] The motions judge disagreed. She applied the principles of contractual interpretation to the wording of the Amending Agreement.
[16] She notes that the Amending Agreement was entered into 11 months before the child was to commence university. She concluded that “When the [Amending Agreement] was executed, it was clearly foreseeable that Laura would be in post-secondary schooling within the year.” This inference is supported by the evidence.
[17] Rogers J. concluded that the Amending Agreement did not contain “a specific altering or terminating clause” when the child went to University.
[18] She did not accept the father’s position that attaining the age of majority, or going away to university was a material change in circumstances that triggered a review of child support in light of the terms of the Amending Agreement. The motions judge concluded that it was appropriate that the CSG apply pursuant to the Amending Agreement. Rogers J. concluded that the Amending Agreement was variable only with respect to the issue of the child’s post-secondary education. Therefore she found that the father should pay his proportionate share of certain limited section 7 educational expenses.
[19] It is important to note that Rogers, J. considered the question of child support on an alternative basis as if the Amending Agreement did not apply.
[20] She considered s. 3(2)(a) of the CSG and found that the circumstances warranted its application, so that the CSG table amount of support would be payable even if the Amending Agreement did not bind the parties. In the further alternative, the motion judge went on to consider s. 3(2)(b) of the CGA and looked to “the condition means, need and other circumstances of the child and the financial ability of each parent, or spouse to contribute to the support of the child”.
[21] She directed her mind to the income of the parties. She considered the wife’s inheritance. She considered that the wife maintained a home year round for the child, and that Laura returned home on weekends with some frequency. With respect to the child’s own contributions including her inheritance, the motions judge concluded that the child was not able to access her inheritance until age 22. Rogers J. imputes income and a contribution from the child of $2,000 so long as she is capable of working. Similarly if she received any scholarships those would be added to her contribution. The court noted the child’s ability to contribute could change.
[22] Rogers J. considered the Appellant’s case for undue hardship.
[23] Firstly, she found that given the finding there was no material change in circumstances, she could not then proceed to consider undue hardship as provided for in s. 10 of the CSG.
[24] Secondly, and in the alternative, she considered the merits of the Appellant’s arguments concerning undue hardship.
[25] The Appellant urged the motion judge to look beyond the permissive test in s. 10(4) of the CSG and consider the assets of the parties in the two households. The Appellant argued there was no disclosure of the Respondent’s partner’s income and his contribution to the mother’s household. The Appellant referred to the Supreme Court of Canada decision in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920.
[26] The court rejected this approach and found it was not appropriate to impute further income to the mother. She concluded, bearing in mind the provisions of s.10(2), and given the income of the father on the facts of this case, the father was not suffering undue hardship within the meaning of the CSG. The court found that the Appellant had not met the burden of proof of proving undue hardship pursuant to s. 10 of the CSG.
[27] In this appeal, in the alternative to seeking redress with respect to the interpretation of the Amending Agreement, the Appellant requests that this matter be remitted for a full hearing with respect to the income and assets of the parties, and their new partners to determine the appropriate level of child support. We will not grant this request. Trials for variation of child support are to be strongly discouraged. Child support guidelines, and the rules for sharing of special expenses, are meant to encourage prompt, inexpensive and consistent awards for child support. To embark on a detailed financial investigation offends the principle of proportionality. It was incumbent upon the Appellant to such take steps to obtain relevant disclosure before the motion was heard. He did not do so.
Conclusion
[28] We conclude that the decision of Rogers J. discloses no error in principle, no significant misapprehension of the evidence, nor do we conclude that the award is clearly wrong. The appeal is therefore dismissed.
Costs
[29] We heard submissions as to costs. Costs are payable by the Appellant to the Respondent in the amount of $7,500.00 inclusive, on a partial indemnity basis, payable within 30 days. We find this to be an award that a losing party could reasonably be expected to pay for a matter of this kind.
CARNWATH J.
JANET WILSON J.
KRUZICK J.
RELEASED:: November 3, 2008