CITATION: Callwood v. Purdy, 2022 ONSC 3941
DIVISIONAL COURT FILE NO.: 21-2663
DATE: 20220603
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Ellies R.S.J., Swinton and Ramsay JJ.
BETWEEN:
Mark Callwood
Applicant (Respondent on Appeal)
– and –
Cinthia Purdy
Respondent (Appellant)
– and –
Matthew Callwood
Respondent (Respondent on Appeal)
Acting in person
D. Danielson, for the Appellant
Acting in person
HEARD at Ottawa (by videoconference): June 3, 2022
R.S.J. Ellies (Orally)
[1] Ms. Purdy appeals the order of Lacelle, J., dated August 31, 2021, that she pay support for the child, T., notwithstanding her claim that such an order would cause her undue hardship. She raises four issues.
[2] First, she submits that the motion judge erred in law by failing to apply the undue hardship test set out in s. 10(1) of the Child Support Guidelines. At para. 40 of her reasons the motion judge wrote:
Given the state of the evidence and the important information I am missing, I am unable to conduct the analysis required by the law to determine whether the hardship claim advanced by Cinthia should succeed. While I am sympathetic to the circumstances advanced by Cinthia, the evidence does not allow me to set aside the presumption that table amount child support is payable.
[3] Ms. Purdy submits that the motion judge was obligated to apply the test and that her failure to do so amounted to an error of law. We disagree.
[4] In her reasons, the motion judge set out the correct legal test for determining whether to order child support less than the Guidelines amount because of undue hardship to the payor. In our view, properly interpreted, the motion judge held that she was unable to apply the undue hardship test not because the test was inapplicable in the case before her, but because the appellant had failed to provide sufficient evidence to apply it. The motion judge’s decision was based on the evidence, or lack of it. For this reason, it did not amount to an error of law.
[5] Ms. Purdy also submits that the motion judge erred in fact by finding that the evidence was insufficient to conduct the undue hardship analysis. Again, we disagree.
[6] As the motion judge correctly held, Ms. Purdy had to establish two things:
(1) that there were circumstances that could create undue hardship on her part; and
(2) that her standard of living is lower than that of the party to whom she would otherwise be required to pay support.
[7] Section 10(2) of the Guidelines sets out a number of factual circumstances that might create undue hardship. These circumstances include those in which the potential payor is under a legal duty to support other children. Ms. Purdy submits that the evidence she had six other children to support was sufficient to satisfy this requirement.
[8] However, the inquiry into undue hardship requires a court to consider all of the evidence, not just some of it. The mere fact that a potential payor has other children to support is not sufficient. The means of the payor must be considered. As the motion judge correctly pointed out, she had no evidence before her to explain how Ms. Purdy’s income for 2021 could be so much less than it was for 2020 and how Ms. Purdy was managing to survive with an alleged annual deficit of roughly $9,000 per year. The motion judge made no error, legal or factual, in concluding that the evidence was insufficient to allow her to conduct the proper analysis.
[9] Ms. Purdy also submits that she satisfied the lower standard of living requirement by establishing that the respondent, Matthew Callwood, earned more money per year and that he had a second income earner living with him, whereas she was living alone. However, it is clear from the motion judge’s reasons that Ms. Purdy had failed to establish that she was earning only $13,860 per year. As a result, Ms. Purdy also failed to establish that Mr. Callwood enjoyed a higher standard of living.
[10] Ms. Purdy’s third ground of appeal is closely related to the second, and in our view, must fail for the same reason. She submits that by referring to gaps in the evidence explaining why Ms. Purdy’s income had changed and how she was managing despite the shortfall between her income and her expenses, the motion judge erred by holding that Ms. Purdy was under a legal requirement to adduce certain evidence.
[11] Again, this misinterprets the motion judge’s reasons. She was not holding that any particular evidence was required to establish undue hardship, but only that certain evidence was required to establish it in this particular case. The motion judge’s reference to things like child tax credits and support payments from the fathers of Ms. Purdy’s other children was a reference to evidence that might have filled the gap left by the evidence that was adduced.
[12] Finally, Ms. Purdy submits that the court should find undue hardship on the evidence that was before the motion judge. We interpret this submission an invitation to reverse the motion judge’s decision, an invitation we cannot accept in the absence of an error in law or a palpable and overriding error in fact, neither of which we find for the reasons expressed earlier.
[13] For these reasons, the appeal is dismissed. There is no order as to costs.
Ellies R.S.J.
I agree _______________________________
Swinton J.
I agree _______________________________
Ramsay J.
Date of Oral Reasons for Judgment: June 3, 2022
Date of Written Release: July 6, 2022
CITATION: Callwood v. Purdy, 2022 ONSC 3941
DIVISIONAL COURT FILE NO.: 21-2663
DATE: 20220603
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Ellies R.S.J., Swinton and Ramsay JJ.
BETWEEN:
Mark Callwood
Applicant (Respondent on Appeal)
– and –
Cinthia Purdy
Respondent (Appellant)
– and –
Matthew Callwood
Respondent (Respondent on Appeal)
ORAL REASONS FOR JUDGMENT
Ellies R.S.J.
Date of Oral Reasons for Judgment: June 3, 2022
Date of Written Release: July 6, 2022