CITATION: Royer v. Peters, 2021 ONSC 1637
DIVISIONAL COURT FILE NO.: DC-19-0114-00
DATE: 2021-03-08
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEENEY, BROAD AND FAVREAU JJ.
BETWEEN:
MELANIE ROYER
Applicant (Respondent on Appeal)
– and –
KEVIN PETERS
Respondent (Appellant on Appeal)
Richard Noll, counsel, for the Respondent on Appeal
The Appellant on Appeal, self-represented
HEARD: March 2, 2021 by videoconference
The judgment of the Court was delivered by,
HEENEY J.:
[1] This is an appeal of the decision of Mossip J. dated November 25, 2019, and her costs decision dated February 18, 2020, made in the context of the Motion to Change brought by the appellant Kevin Peters. To avoid confusion, Mr. Peters will be referred to as the “appellant” in these reasons, even though he was the respondent in the original proceeding, and Ms. Royer will be referred to as the “respondent”.
[2] The original order was made by McLaren J. dated October 9, 2009, based on partial Minutes of Settlement entered into on the last day of a 20-day trial. It was made in proceedings under the Divorce Act, and provided that neither party shall pay child support to the other, and that each party shall be completely responsible for the expenses of the children while they are in their care. The parties had a shared custody arrangement with respect to their son L.P., born May 13, 2003, and their daughter J.P., born October 26, 2004, the terms of which were prescribed by the decision of McLaren J. dated December 21, 2009. In a subsequent endorsement dated December 15, 2010, McLaren J. ordered the appellant to pay costs of the trial to the respondent in the amount of $42,354.14. The appellant’s appeal of that order was dismissed by Lederer J.A. on April 20, 2011, and he was ordered to pay further costs of $10,000. Those costs would remain unpaid until June 30, 2016, four days before the appellant issued his Motion to Change.
[3] In his Motion to Change the appellant sought, among other relief, an order awarding retroactive child support payable to him commencing in 2011, based on increases in the annual income of the respondent, as well as decreases in the appellant’s income. The motion was disposed of by a trial of the issues on oral evidence.
[4] In her Reasons for Judgment, the trial judge declined to award child support prior to the commencement of the Motion to Change in July 2016. She instead awarded retroactive child support from August 1, 2016 to the date of judgment. Since the custody arrangements had, as of October, 2018, changed (as a result of decisions made by the children themselves) to a split custody arrangement, where the son resided on a full-time basis with the appellant and the daughter resided on a full-time basis with the respondent, the quantum of retroactive child support was calculated on a table offset approach, where the table amount of support payable for one child by each party were compared, and the respondent was ordered to pay the difference to the appellant.
[5] The trial judge also awarded costs to the respondent fixed at $12,000, based on her assessment that the respondent was the successful party at trial.
[6] Before proceeding to an analysis of the issues, some comment is in order with respect to the conduct of this appeal by the appellant.
[7] The materials filed by the appellant on this appeal were substantially deficient, and he failed to follow the Rules in many respects. He filed a Notice of Motion instead of a Notice of Appeal. He failed to serve and file an Appellant’s Certificate Respecting Evidence (Form 61C) setting out the evidence that, in his opinion, was required for the appeal. He then ordered a transcript of only the cross-examination and re-examination of the respondent, so that this court did not receive a complete record of the evidence that was before the trial judge. His Factum contained a recitation of alleged facts that included evidence that was not before the trial judge, and contained no references whatsoever to the transcript of the evidence and the exhibits, as required by rule 61.11(1)(b), which would have enabled counsel and this court to check those sources to ensure that the appellant’s summary was correct.
[8] The appellant failed to perfect his appeal within 60 days of being notified that the transcript had been completed, which notification date was February 10, 2020. Indeed, he only started to upload the required documentation to the court on February 25, 2021, which was 10 months late and only 5 days before the appeal was to be heard, with the largest volume of documentation arriving on the morning of the hearing, March 2, 2021. While he complained that he was experiencing technical difficulties with uploading his documentation to CaseLines, he created that problem for himself by waiting until the last minute to do so. He also thereby deprived himself of the opportunity to familiarize himself with CaseLines in advance of the hearing, which could have avoided the navigation issues he was experiencing during the hearing.
[9] While indulgences for irregularities are often granted to self-represented litigants, the deficiencies here were arguably too numerous and egregious to be overlooked, particularly since the respondent suffered obvious prejudice with having to cope with the large document dump immediately before the hearing. Nevertheless, counsel for the respondent was prepared to proceed, and this court allowed the appellant to make his submissions in full.
[10] The issues that were argued on this appeal are these:
Did the trial judge err in refusing to award retroactive child support prior to the commencement of the Motion to Change in July 2016?
Did the trial judge err in her calculation of the child support that was payable to the appellant from August 2016 forward?
Did the trial judge err in awarding costs of $12,000 to the respondent?
[11] The appellant’s Factum also includes an allegation that the trial judge erred in failing to award interest on the retroactive child support at 3% per annum, although the point was not argued at the hearing. No authority is cited to support the appellant’s claim of entitlement to interest, except para. 55 of his Factum where he points out that the respondent received interest at 3% on the costs award of $2,500 ordered against him by Trimble J. on July 27, 2018, and the award of $5,000 in costs by the Divisional Court against him on December 7, 2018, and it would be “unfair” if he didn’t also receive interest. However, interest on the two costs awards was postjudgment interest under s. 129 of the Courts of Justice Act, which automatically accrues on a monetary award, from the date of the judgment forward. The appellant’s claim could only be for prejudgment interest under s. 128 (1) of the Act. That section provides that a person entitled to an order for the payment of money “is entitled to claim and have included in the order” prejudgment interest on that monetary award (emphasis added). Here, no claim for prejudgment interest was included in the appellant’s Motion to Change. Accordingly, this ground of appeal will not be considered further.
[12] The appellant’s Factum also sought an order that a fresh judge oversee the “family issues”, with family reintegration as the primary goal. This was not an issue before the trial judge, because issues relating to custody and access did not proceed to a hearing, and no ruling was made by the trial judge in that regard which could be the subject-matter of an appeal. Accordingly, this claim also will not be considered further, except for brief mention regarding the issue of costs.
Issue #1: Did the trial judge err in failing to award child support prior to July 2016?
[13] During the marriage the appellant pursued a career as a behavioural therapist and the respondent was, and remains, a registered nurse. The appellant lost his full-time position in 2007 due to a restructuring, but continued to find short-term contracts over the following few years. At the time of the order in 2009, which provided that neither party would pay child support to the other, it is conceded by both parties that their income was roughly equal. By 2012, however, the appellant had given up on the possibility of finding full time work as a behavioural therapist, and began working with Raintree Irrigation as a service technician. This resulted in a drastic drop in his income, although his income did increase annually each year thereafter. The respondent’s income, meanwhile, increased more or less steadily.
[14] At paras. 30 to 33, the trial judge correctly instructed herself on the leading case relating to the issue of retroactive support, S. (D.B.) v. G. (S.R.), 2006 SCC 37. She noted that there are two issues that the court must decide:
The date to which the support order should be retroactive; and,
The amount of support that would adequately quantify the payor parent’s deficient obligation during that time.
[15] She also correctly set out the factors that the court should consider in making these determinations:
Reasonable excuse for why support was not sought earlier;
Conduct of the payor parent (“blameworthy conduct”);
Circumstances of the children; and
Hardship occasioned by a retroactive award.
[16] The appellant submitted that the trial judge erred in her consideration of these factors, in deciding not to award child support prior to July 2016 when the Motion to Change was issued.
[17] As to the first factor, the appellant had testified that he did not pursue a claim for support because he was afraid that the respondent’s reaction would be to seek sole custody. This testimony was rejected by the trial judge, who reasoned that this fear, if true, would have existed in 2011 just as it did in 2016, and would not constitute a reasonable excuse for delay in bringing his Motion to Change. The trial judge concluded that the real reason for the delay was that the appellant owed more than $50,000 in costs to the respondent. The correspondence he had with her was often about making a compromise on the costs he owed her, by setting them off against child support and his commuting costs. In that regard, I note that it is no coincidence that he issued his Motion for Change four days after those costs were paid, as a compulsory consequence of selling his house. He brought an emergency motion almost immediately thereafter, seeking an order effectively freezing the costs he had just paid, as a form of security for the child support claim he was bringing. That motion was dismissed by Lafreniere J. on July 22, 2016, and he was ordered to pay a further $2,000 in costs.
[18] The trial judge found as a fact that the appellant did not directly ask for monthly child support, nor did he provide his own financial information or current employment information. The trial judge was satisfied that the appellant did not actively or reasonably seek child support prior to commencing his Motion to Change, and she found that he did not have a “reasonable excuse” for a five-year delay in bringing that motion. I find no palpable and overriding error in the findings of the trial judge that led to that conclusion.
[19] As to the second factor, the appellant argued that the respondent engaged in “blameworthy conduct” by failing to disclose her income each year. The trial judge rejected that argument, noting that the respondent was not, by virtue of the final order, a “payor”, nor was the appellant a “recipient”. Instead, both parties had an equal obligation to support the children without support from the other party.
[20] Significantly, the appellant admits that he never disclosed his own financial information from 2011 to 2016, and that that was “a mistake”. Without that information, the respondent would not know what the difference was, if any, in the respective incomes of the parties, nor what support obligations might flow from any such difference. I find no error in the conclusion of the trial judge that “the mother was entitled to rely on a court order that placed no obligation on either party to pay child support until there was some evidence as to why she should”.
[21] The third factor is the circumstances of the children. This point was not argued on this appeal. The trial judge found that the children did not, on the evidence, suffer financially as a result of the respondent not paying child support. There was no evidence that the children’s needs were not met by each parent in their own homes. This court has been directed to no instances of palpable and overriding error leading to these factual conclusions.
[22] The final factor is hardship occasioned by a retroactive award. The trial judge concluded that a large retroactive award would cause severe hardship to the respondent. Although she is part-owner of a house with her mother and has a pension for when she retires, her sworn financial statement shows no other significant assets, a first and second mortgage and a personal loan. The trial judge observed that the appellant also has significant debts and virtually no assets and would benefit personally from a large retroactive child support award so that he could pay his debts, but that is not the purpose of such an award.
[23] In support of that observation, I note the comments of Bastarache J. at para. 95 of S. (D.B.):
It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award.
[24] Again, I find no reversible error in these findings or conclusions.
[25] The trial judge considered these four factors holistically, and concluded that the child support order should commence August 1, 2016, being the first day of the month following the commencement of the Motion to Change. She found that to be the date of formal notice of the claim for child support, as well as the date when the respondent knew the actual income of the appellant. I find no basis to interfere with this exercise of the trial judge’s discretion.
Issue #2: Did the trial judge err in her calculation of the child support that was payable to the appellant from August 2016 forward?
[26] There are several sub-issues that are raised with respect to the manner in which the trial judge calculated the quantum of child support owing by the respondent to the appellant from August 1, 2016 forward.
[27] The first relates to the respondent’s income for 2018. In that year she changed jobs, leaving her position with Hamilton Health Sciences in Hamilton and taking a new position close to home with Two Rivers Family Health in Cambridge. Her T-4 slip from Hamilton Health Services showed that she earned $74,791.20 in 2018, and her T-4 slip from Two Rivers shows that she earned $12,937.50 from that employer in 2018. This amounts to a total of $87,728.70.
[28] At para. 66 of her Reasons, the trial judge summarized the incomes of each party from 2009 to 2019. For the year 2018, she noted the respondent’s income to be $74,791, which matches the income from Hamilton Health Services. It would appear that the trial judge inadvertently neglected to include the additional income from Two Rivers. Counsel for the respondent conceded that this was an error that should be corrected.
[29] The second issue raised by the appellant is his bald allegation that the respondent had income from a kinship placement that was not disclosed. A review of the transcript filed by the appellant shows that he questioned the respondent about this kinship placement, but asked her nothing about any income she might have received from it. His allegations in para. 70 of his Factum as to additional income being earned by the respondent are pure speculation on his part, and are not based upon evidence that was before the court.
[30] The appellant also argues that an adverse inference should be drawn against the respondent for failing to file her 2018 Notice of Assessment. However, he did not make an issue out of the lack of a Notice of Assessment until his written submissions filed after the evidence had been concluded. I am satisfied that the T-4 slips represented the best evidence available as to the respondent’s income, and the trial judge was entitled to rely on them.
[31] The appellant also argued that income should be attributed to the respondent because she changed jobs in 2018. The trial judge found as a fact that she chose to move to a job that was closer to home, where she could work straight weekday hours without shift work. While this resulted in a reduction in her gross income of about $30,000 per year, the fact that certain expenses she previously incurred personally were now paid by her employer, coupled with her reduced commuting costs, resulted in her net income not being drastically different.
[32] At para. 63, the trial judge said the following:
The mother has significant child care responsibilities. I am satisfied the mother changed her employment for a legitimate reason, which was to have more regular hours to care for her children. I am satisfied she did not do so because of the father’s claim for child support.
[33] The court, under s. 19(1)(a) of the Child Support Guidelines, has discretion to impute such amount of income as it considers “appropriate” where a spouse is intentionally under-employed or unemployed. The trial judge concluded that it was not appropriate to impute any income to the respondent in the circumstances. I find no basis to interfere with that exercise of her discretion.
[34] It is worth noting that, in arriving at this conclusion, the trial judge was treating the respondent in exactly the same manner as the appellant. It had been argued by the respondent at trial that income should be imputed to the appellant because he chose to work as a technician in an irrigation business, whereas he could have earned much more income had he continued his career as a behavioural therapist. After reviewing the evidence, including his unsuccessful efforts to obtain a full-time posting, the trial judge concluded that the appellant’s decision to focus on a new career was not unreasonable and was not done to seek child support from the mother.
[35] The final sub-issue relating to the calculation of retroactive child support relates to the trial judge’s consideration of the child support tables. As already noted, the children were in a shared custody regime at the time the Motion to Change was commenced, and that remained in place until October, 2018. The appellant challenged that date, and argued that it should have been January, 2019, but the trial judge clearly accepted the evidence of the respondent in that regard, and I see no reason to interfere with the trial judge’s decision to prefer the respondent’s evidence over that of the appellant.
[36] In October 2018, the son L.P. moved in to live with the appellant, and essentially terminated his relationship with his mother. The daughter J.P. began primarily residing with the respondent at the same time and, while she had some visits with her father thereafter, she ultimately terminated her relationship with him. From that date forward, therefore, there was a split custody regime in place.
[37] In her analysis relating to the quantum of retroactive child support to be paid, the trial judge correctly referred to s. 9 of the Guidelines as the governing provision in shared custody cases. That section has since been amended, but at the time of the trial judge’s decision it provided as follows:
- Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared parenting time arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
[38] The trial judge then referred to Contino v. Leonelli-Contino, 2005 SCC 63, where the court held that a simple set-off of the table amounts to be paid by each parent could be a useful starting point for determining child support under s. 9. However, it has no presumptive value, and the court must consider the factors listed under ss. 9(b) and (c). The court retains the discretion to depart from the set-off amount.
[39] In dealing with ss. 9(b), the trial judge noted that neither party provided any evidence as to the children’s budgets for the court to consider. While Contino had stated at para. 57 that “courts should demand information from the parties when it is deficient”, she concluded that it would not be in anyone’s best interests, most of all the children’s, to bring the parties back to court to obtain the children’s budgets and prolong the litigation. She therefore concluded that she was unable to make any assumptions regarding ss. 9(b).
[40] As to ss. 9(c), the trial judge said this, at paras. 110 and 111:
Further, I have considered the conditions, means, needs and other circumstances of the parties and of the children based on the evidence at trial and it has no impact on the quantum of support I find appropriate. I find that the set-off amount provides a fair standard of support for the children. The set-off amount would not result in a significant variation in the standard of living between the two households. I am satisfied that a set-off amount meets the objectives of the Guidelines.
Given the children are now in a split custody arrangement, I find the fairest way to calculate the child support is by way of a “set-off” calculation based on the parties’ incomes from August 2016.
[41] The trial judge then calculated the child support obligation as follows: August 1 to December 31, 2016: $2,225; January 1 to December 31, 2017: $4,860; January 1 to December 31, 2018: $1,752; January 1 to December 31, 2019: $1,704. This amounts to a total of $10,541.
[42] I have calculated the table amount of child support notionally payable by each party based on the annual incomes of the parties listed at para. 66, and it is readily apparent that these arrears calculations represent a straight set-off of the support payable by one party to the other for one child, based on the version of the tables that came into effect on November 22, 2017. While that calculation would be correct for the period from November 1, 2018 forward, when the children were in a split custody regime, and support was governed by s. 8 of the Guidelines, it is not correct for the period from August 1, 2016 to October 31, 2018, when the children were in a shared custody regime. The “amounts set out in the applicable tables for each of the spouses” referred to in ss. 9(a) of the Guidelines for that period would be the table amount payable for two children, not one. Further, the amount payable for the period up to November 30, 2017 would be governed by the December 31, 2011 version of the tables, and the amount payable thereafter would be governed by the November 22, 2017 version of the tables.
[43] Bastarache J., in S. (D.B.), at para. 126, made it clear that retroactive child support awards had to conform with the Guidelines:
Finally, a court will need to determine the quantum of the retroactive award. This determination will need to be ascertained consistent with the statutory scheme that applies to the award being ordered.
[44] In Contino, where Bastarache J. also wrote for the majority, he considered various approaches to the interpretation and application of ss. 9(a) at paras. 40 – 44:
The first factor requires that the court take into account the financial situations of both parents (instead of the sole income of the spouse against whom the order is sought, as in s. 3). It is important to highlight the fact that the final and fully considered version of s. 9 does not include a conclusive formula to determine how the Table amounts are to be considered or accounted for.
The Court of Appeal, while it agreed that the use of a formula is not explicitly required in the section, concluded that the set-off approach in s. 8 could be a useful starting point to bring consistency and objectivity to the determination, especially in cases where there is limited information and the incomes of the parties are not widely divergent. I agree, but would caution against deciding these issues without proper information. I would particularly caution against a rigid application of the set-off which can entail, in the case of a variation order, a drastic change in support, dubbed the “cliff effect” by commentators (M. S. Melli and P. R. Brown, “The Economics of Shared Custody: Developing an EquiTable Formula for Dual Residence” (1994), 31 Houst. L. Rev. 543, at p. 565; Rogerson, at p. 74; Wensley, at p. 70), that may not be warranted when a close examination of the financial situation of the parents and standard of living in both households is considered. The value of the set-off is in finding a starting point for a reasonable solution taking into account the separate financial contribution from each parent. A court will depart from the set-off amount or make adjustments to it if it is inappropriate in light of the factors considered under ss. 9(b) and 9(c). The set-off amount must therefore be followed by an examination of the continuing ability of the recipient parent to meet the needs of the child, especially in light of the fact that many costs are fixed. As mentioned by numerous commentators, this is a problem in many cases where there is a great discrepancy in the incomes of the parents (see Rogerson, at p. 64). It is also a problem in cases where one parent actually incurs a higher share of the costs than the other (taking responsibility for clothing or activities for instance). I would also note that the 40 percent threshold itself should be irrelevant to this evaluation; the cliff effect is not merely a result of the threshold; it is a result of the different methodology.
The Court of Appeal (as well as the father) summarized a number of applications of the set-off approach adopted by Canadian courts (see Fletcher v. Keilty (2004), 269 N.B.R. (2d) 302, 2004 NBCA 34 (N.B. C.A.); Slade v. Slade (2001), 195 D.L.R. (4th) 108, 2001 NFCA 2 (Nfld. C.A.); Dean v. Brown (2002), 209 N.S.R. (2d) 70, 2002 NSCA 124 (N.S. C.A.); Hill v. Hill (2003), 213 N.S.R. (2d) 185, 2003 NSCA 33 (N.S. C.A.); Cabot v. Mikkelson (2004), 242 D.L.R. (4th) 279, 2004 MBCA 107 (Man. C.A.); Dennis v. Wilson (1997), 104 O.A.C. 250 (Ont. C.A.); Wylie v. Leclair (2003), 64 O.R. (3d) 782 (Ont. C.A.); Green v. Green; Berry v. Hart; E. (C.R.H.) v. E. (F.G.) (2004), 29 B.C.L.R. (4th) 43, 2004 BCCA 297 (B.C. C.A.); Luedke v. Luedke (2004), 198 B.C.A.C. 293, 2004 BCCA 327 (B.C. C.A.); Gieni v. Gieni (2002), 29 R.F.L. (5th) 60, 2002 SKCA 87 (Sask. C.A.); see also Children Come First Report: A Report to Parliament Reviewing the Provisions and Operation of the Federal Child Support Guidelines, Vol. III (2002) (”Children Come First Report”), at pp. 68-70; J. C. MacDonald and A. C. Wilton, Child Support Guidelines: Law and Practice (2nd ed. (loose-leaf ed.)), vol. 1, at pp. 9-11 to 9-16).
The three main applications of the set-off formula adopted by the courts are:
Simple (or straight) set-off: The support payment is calculated by determining the Table amount for each of the parents as though each was seeking child support from the other. The amount payable is the difference between the two amounts (see, e.g., Middleton v. MacPherson (1997), 204 A.R. 37 (Alta. Q.B.); Luedke v. Luedke ).
Pro-rated set-off: The Table amount for each of the parents is reduced by the percentage of time the child spends with each parent. The recipient parent’s amount of time with the children is multiplied by the payor’s Guidelines amount and the payor parent’s amount of time with the children is multiplied by the recipient parent’s Guidelines amount. These two pro-rated amounts are then set-off against one another (see, e.g., Moran v. Cook (2000), 9 R.F.L. (5th) 352 (Ont. S.C.J.); Harrison v. Harrison (2001), 14 R.F.L. (5th) 321 (Ont. S.C.J.); E. (C.R.H.) v. E. (F.G.) ). A variation of this approach is the “straight pro-rate” which takes the percentage of time the recipient parent has custody of the children multiplied by the Guidelines amount for the payor parent.
Set-off plus multiplier: The set-off amount (simple set-off or pro-rated set-off) is increased by a multiplier (usually 1.5), based on the assumption that a portion of the recipient parent’s costs are fixed, and therefore, unaffected by the increased time the child spends with the other parent.
I agree with the father and the Court of Appeal that the simple set-off is preferable to the pro-rated set-off as a starting point for the s. 9 analysis in view of the language used by the legislator in para. (a). …
[45] There is some logic to the approach taken by the trial judge in this case. Using the table amount payable by each parent for two children is arguably flawed because each parent in a shared custody regime only has the children for half the time. The table amounts are calculated based on the assumption that the children primarily reside with the recipient parent. One could argue that having two children for 50% of the time is equivalent to having one child full-time. This is similar to the “pro-rated set-off” approach described above, where each parent’s table amount would be reduced by 50% to reflect the fact that they only had the children half of the time.
[46] However, in view of the ruling of both the Ontario Court of Appeal and the Supreme Court of Canada that a straight set-off of the full table amount is the proper way to interpret and apply ss. 9(a), I conclude that the approach followed by the trial judge in this case is a legal error.
[47] This error does not give rise to the need for a new trial because it amounts to a calculation error that can easily be corrected by this court.
[48] I have calculated retroactive child support using the table amounts payable for two children, based on the incomes of the parties as summarized by the trial judge at para. 66, after correcting the respondent’s income for 2018 as discussed above. The calculation below also applies the December 31, 2011 tables up to November 30, 2017, and the November 22, 2017 tables thereafter. It also takes account of the fact that from November 1, 2018 forward, support is calculated on a table offset basis for one child each, as provided for in s. 8 of the Guidelines, because that is when the children began living in a split custody regime.
[49] The following table summarizes my calculations:
| Period | Mother’s income | Table amount | Father’s income | Table amount | Difference |
|---|---|---|---|---|---|
| August 1 – December 31, 2016 | $97,136 | $1,381 x 5 = $6,905 | $47,796 | $711 x 5 = $3,555 | $3,350 |
| January 1 – November 30, 2017 | $97,700 | $1,387 x 11 = $15,257 | $52,970 | $787 x 11 = $8,657 | $6,600 |
| December 1 – 31, 2017 | $97,700 | $1,444 | $52,970 | $806 | $638 |
| January 1 – October 31, 2018 | $87,729 | $1,322 x 10 = $13,220 | $59,660 | $909 x 10 = $9,090 | $4,130 |
| November 1 – December 31, 2018 | $87,729 | $816 x 2 = $1,632 | $59,660 | $552 x 2 = $1,104 | $528 |
| January 1 – December 31, 2019 | $70,000 | $654 x 12 = $7,848 | $55,500 | $512 x 12 = $6,144 | $1,704 |
[50] The total in the “difference” column is $16,950, which represents the retroactive child support owing by the respondent to the appellant. The figure of $10,541 calculated by the trial judge is varied to this amount.
[51] At paras. 125 – 129, the trial judge set off the costs plus interest of $7,751 owed by the appellant to the respondent relating to interim motions to that point in time (but not including costs of the trial, which had yet to be ruled upon) as against the retroactive child support to arrive at a net figure payable by the respondent of $2,790. After variation of the child support award, the net amount payable to the appellant is $9,199.
Did the trial judge err in awarding costs of $12,000 to the respondent?
[52] A court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong. A costs award is a discretionary order, and is entitled to considerable deference: McNaughton Automotive Ltd. v. Co-operators General Insurance Co., 2008 ONCA 597, at paras. 26 – 7.
[53] Rule 24(1) of the Family Law Rules provides that there is a presumption that a successful party is entitled to costs of the proceeding. In accordance with that provision, the trial judge concluded that the respondent was more successful than the appellant for the following reasons:
The date for commencement of retroactive support was set at August 1, 2016 and not 2011 as the appellant had requested;
His claim for commuting costs amounting to $24,076 was dismissed;
The quantum of income that he requested be imputed to the respondent was rejected.
[54] All of the appellant’s offers to settle were well in excess of the order that the trial judge made. This remains the case even after the amount of retroactive child support is adjusted to $16,950 as outlined above, so the orders made on this appeal have no impact on the trial judge’s conclusion that the respondent was the successful party. For example, the last offer made by the appellant proposed that he would receive $52,000 in retroactive support, which is many times greater than the amount he recovered.
[55] As to the respondent, her offers to settle were closer to the result in many cases, although her last offer was not close to the final order.
[56] The trial judge considered the factors set out in rule 24(11), and concluded that the respondent was the more reasonable party both in the litigation and in settlement negotiations. She also found that the claim against the respondent’s lawyer, Mr. Noll, for costs payable personally was completely without foundation and ought not to have been made. The appellant’s personal attacks against Mr. Noll, who was simply doing his job as an advocate, were highly inflammatory and without merit. The costs incurred in forcing Mr. Noll to respond to this issue was a factor in arriving at the quantum of costs payable.
[57] The trial judge held that no costs should be recoverable by either party with respect to the custody and access issues. She noted that the appellant had resisted the appointment of the Office of the Children’s Lawyer. Justice Price gave lengthy reasons why this appointment would assist the children, and the OCL was actively involved with the children since their appointment. The respondent did not pursue the custody claim in court after the OCL became involved, and it was not an issue at trial. The trial judge confirmed, at the December 9, 2019 court appearance, that there was no longer an outstanding custody claim, and the OCL lawyer was dismissed from the action.
[58] At the disclosure meeting held between the OCL lawyer and the parties on February 19, 2019, the respondent abandoned her request for a change in the time-sharing schedule, based on the views and preferences of the children as explained by the OCL. However, the appellant continued to pursue his allegation against the respondent of parental alienation. The OCL made it clear that they saw no evidence of parental alienation, but the appellant “could not let this issue go, despite professional advice to do so”.
[59] For all of those reasons, the trial judge determined that there should be no costs of the custody issue.
[60] With respect to quantum, the respondent sought costs of $25,411.12 on a substantial indemnity basis, and $18,758.24 on a partial indemnity basis. The trial judge concluded that an award of $12,000 to the respondent was reasonable in all of the circumstances. This represents a substantial discount, and in my view reflects the fact that, while the respondent was more successful than the appellant, her offers to settle nevertheless fell short of what was ordered at trial.
[61] I find no error in principle in the trial judge’s analysis of the costs issue, nor has the appellant demonstrated that it is clearly wrong. The appeal as to costs is dismissed.
[62] The final issue to be determined is the costs of this appeal.
[63] The appellant has had some success in that the amount of retroactive child support has been increased from $10,541 to $16,950, representing a net gain in child support of $6,409. However, in the “Order Sought” portion of his factum, he was seeking additional child support of $26,720.64 (retroactive to 2011), interest of $1,396.73, reversal of the costs order against him of $12,000, and costs personally against Mr. Noll in an unspecified amount. Using his requested orders as a yardstick by which to measure success, he has been, on balance, unsuccessful on this appeal.
[64] In addition, his conduct in handling this appeal, as reviewed in paras. 7 and 8 above, is deserving of some sanction in the form of a costs order.
[65] Mr. Noll has presented a Bill of Costs, claiming $8,190.19 on a substantial indemnity scale, or $5,949.96 on a partial indemnity scale. I find these amounts to be very reasonable in the circumstances.
[66] In view of the fact that success was divided, but that division was more favourable to the respondent than to the appellant, some costs are in order. Costs of the appeal are awarded to the respondent, payable by the appellant, fixed at $3,000 all inclusive.
[67] For these reasons, the appeal is allowed in part, and the order of the trial judge is varied in the following respects:
The quantum of retroactive child support awarded to the appellant is increased from $10,541 to $16,950;
The net amount payable by the respondent to the appellant, after setting off the sum of $7,751 owed by the appellant to the respondent for costs relating to prior interim motions plus interest, is increased from $2,790 to $9,199.
[68] The appeal is otherwise dismissed.
[69] The appellant shall pay to the respondent her costs of this appeal, fixed at $3,000.
T. Heeney J.
I agree.
D. Broad J.
I agree.
L. Favreau J.
Released: March 8, 2021
CITATION: Royer v. Peters, 2021 ONSC 1637
Divisional Court File No.: DC-19-0114-00
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEENEY, BROAD AND FAVREAU JJ.
BETWEEN:
MELANIE ROYER
Respondent
– and –
KEVIN PETERS
Appellant
REASONS FOR JUDGMENT ON APPEAL
Released: March 8, 2021