Sharpe v. Henningham, 2021 ONSC 1652
CITATION: Sharpe v. Henningham, 2021 ONSC 1652
DIVISIONAL COURT FILE NO.: 270/20 DATE: 20210304
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
M.L. Edwards R.S.J., Penny and Kurke JJ.
BETWEEN:
LISA SHARPE
Applicant (Respondent on Appeal)
– and –
HOWARD HENNINGHAM
Respondent (Appellant on Appeal)
COUNSEL: Jeremiah Kalyniak, for the Respondent Stephanie Tadeo, for the Appellant
HEARD at Toronto (by video conference): March 4, 2021
BY THE COURT:
[1] Mr. Henningham (“the appellant”) appeals against the final order of Bloom J. of August 27, 2020, pursuant to ss. 19(1)(a) and 19(1.2) of the Courts of Justice Act, R.S.O. 1990, c. C.43. He asserts that the motion judge erred:
(1) in finding the parties’ child Kayona Sharpe-Henningham (“Kayona”) to have been a “child of the marriage” until May 2019; and
(2) in finding that the respondent was entitled to a retroactive award of child support and s. 7 expenses for Kayona and for her brother Kahleel Sharpe-Henningham (“Kahleel”), and in how he quantified that award.
[2] At the hearing of this appeal, Mr. Henningham abandoned a further ground of appeal, relating to the proportionate share between the parties of s. 7 expenses for Kahleel going forward.
[3] Ms. Sharpe (“the respondent”) moved to be permitted to adduce fresh evidence on appeal, relating to:
(1) Kayona’s certificates of enrollment at Humber College from 2018 and 2019;
(2) Kayona’s income tax returns; and
(3) the schedule of accounts and case enforcement summary relating to the appellant from the Family Responsibility Office.
[4] We declined to receive the proposed fresh evidence, which was all readily available to the respondent prior to her attendance before Bloom J. The respondent had been given the opportunity prior to the hearing to cure deficiencies in her materials and had in fact been ordered to do so. Her status as a self-representing individual does not relieve her of the duty to ensure that such basic material was properly before the court for the hearing through the exercise of reasonable diligence: Sengmueller v. Sengmueller, at para. 10. Moreover, we are also of the view that the proposed fresh evidence would have made no difference on the original hearing, as Bloom J. found for the respondent on points related to this evidence in any event.
[5] This appeal relates to issues about child support. An appeal court may intervene in an award relating to support when there is a material error, a serious misapprehension of the evidence, or an error in law. However, it is not entitled to overturn a support order simply because it would have made a different decision or balanced relevant factors differently: Hickey v. Hickey, [1999] 2 S.C.R. 518, at para. 12.
[6] Much of the appeal focuses on various factual findings made by Bloom J. with which the appellant disagrees.
Kayona as a “child of the marriage”
[7] In our view, while the best evidence of Kayona’s school enrollment was not before the motion judge or admitted before this court, there was evidence before the motion judge sufficient to ground his finding that Kayona remained a “child of the marriage” until the end of May 2019, the date of the end of her business program at Humber College. The motion judge held that until this time, Kayona was a full-time student and dependent on the respondent. This finding cannot be said to involve any serious misapprehension of the evidence or other error.
Entitlement to retroactive variation of child support
[8] Likewise, there was evidence before the motion judge capable of supporting his finding that the respondent was entitled to retroactive variation of child support. The motion judge referred at length to the leading case of D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, and its guiding factors in determining entitlement.
[9] In this context, the motion judge reiterated his finding that Kayona was a full-time student and dependent on the respondent for support until the end of May 2019. He accepted the respondent’s evidence that she was unable to confirm the appellant’s whereabouts to claim additional support from him. He noted that the appellant had not been diligent in supporting his children in accordance with his sharply increasing income, a relevant consideration in the analysis: D.B.S., at para. 108. The motion judge also recognized that the appellant had another child from a different relationship and ensured that the appellant was credited for overpayments he had made. Although the respondent had been seeking a declaration of arrears from a much longer period of time, the motion judge only granted arrears to the respondent from 2015 onwards, back three years from the date of her court filing. In our view, the motion judge was entitled to make this determination, and did not err in so doing.
[10] Although the appellant complains that the motion judge made an adverse credibility finding about the appellant in relation to arrears of support, nothing material turned on that finding.
Arrears of support and s. 7 expenses
[11] As to the quantum of total retroactive child support and s. 7 expenses, we agree with the appellant that the motion judge erred in failing to engage with the legal requirements for determining which expenses claimed by the respondent properly fell within s. 7 of the Child Support Guidelines. Although a judge’s reasons with respect to the s. 7 factors need not be perfect, they must be adequate to explain the judge’s conclusions: Titova v. Titov, 2012 ONCA 86, at paras. 23-32.
[12] Unfortunately, nowhere did the motion judge demonstrate that he had properly considered the s. 7 factors. Instead, he appears simply to have made proportional calculations of amounts owing by the appellant and applied the proportions to some undefined expenses presented by the respondent. The motion judge did not clearly set out what items were appropriate for the s. 7 designation, or into which category in s. 7 each expense should be considered. There was no assessment about whether individual expenses were necessary in the children’s best interests or whether they were reasonable given the parties’ means, the children’s means, or the parties’ spending habits prior to separation. The reasons were plainly inadequate.
[13] In our view, it is appropriate to remit the matter of the determination of arrears of s. 7 expenses back to the motion judge to reconsider the relevant factors and determine s. 7 expenses owing: Titova v. Titov, at para. 52.
[14] In any event, we see no reason to disturb the motion judge’s findings:
(1) of the other amounts determined to be owing by the appellant: $13,944 in child support arrears and $4,753.70 in support and s. 7 expenses from the order of Seppi J.; or
(2) the appellant’s overpayment of $984 in child support for 2020.
Conclusion
[15] Accordingly, the appeal is granted in part, and the matter is remitted to the motion judge to reconsider arrears of s. 7 expenses by the appellant.
[16] In our view, success on the appeal was divided, and we make no order as to costs. We would only add at this point that the remaining aspect of the case cries out for resolution. Given the costs incurred to date, together with the costs associated with further litigation, when weighed against the amounts in dispute on this narrow issue the parties would be well advised to arrive at a consensual resolution of s. 7 arrears without further cost or delay.
___________________________ M.L. Edwards R.S.J.
Penny J
Kurke J.
Date of Oral Reasons for Judgment: March 4, 2021
Date of Release: March 9, 2021
CITATION: Sharpe v. Henningham, 2021 ONSC 1652
DIVISIONAL COURT FILE NO.: 270/20 DATE: 20210304
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
M.L. Edwards R.S.J., Penny and Kurke JJ.
BETWEEN:
LISA SHARPE
Applicant (Respondent on Appeal)
– and –
HOWARD HENNINGHAM
Respondent (Appellant on Appeal)
ORAL REASONS FOR JUDGMENT
BY THE COURT
Date of Oral Reasons for Judgment: March 4, 2021
Date of Release: March 9, 2021