ENDORSEMENT
COURT FILE NO.: FC-13-1861
DATE: 20141126
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dianne Pearl Douglas, Applicant
AND
Rene Albert Faucher, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Cecil J. Lyon, Counsel for the Applicant
Jack Pantalone, Counsel for the Respondent
HEARD: November 13, 2014
ENDORSEMENT
[1] This is a motion for leave to appeal from the decision of Justice James dated July 14, 2014. The motion was heard on July 2. Both parties sought orders. The applicant sought full table child support from May 1, 2013 forward. The respondent sought to pay the set off amount from April 1, 2014 forward. The outcome would turn on the determination of the percentage of parenting time enjoyed by each parent. The motion judge reserved his decision and released written reasons on July 14, 2014.
[2] The motion judge had heard a prior motion between these parties on September 18, 2013 in relation to temporary custody and access of the parties’ three children. On September 20 the motion judge released an endorsement awarding temporary joint custody to the parents, and stipulating that the parenting time should be divided approximately 60% for the mother and 40% for the father.
[3] He invited the parents to agree on the actual form of the parenting schedule, but if they could not agree, each was to submit their proposal to him in writing and he would select one or the other. The parents did not agree. They made their submissions. The motion judge released a further endorsement on October 1. He preferred the mother’s proposed schedule but made one adjustment to it by way of an increase to the father’s parenting time.
[4] In his written reasons of July 14, 2014, the motion judge stated at paragraphs [8],[ 9], [10] and [11]:
[8] In September 2013, I made a temporary order for joint custody and an “approximate 60-40 split” in parenting time. The parties were unable to agree on a parenting schedule and, as directed, they each submitted a proposed schedule for my consideration. In the letter covering the delivery of the applicant’s proposed schedule, counsel for the applicant indicated that the respondent’s parenting time under the schedule would amount to 39.8%.
[9] I found the applicant’s schedule to be preferable but I added a provision that professional development days falling on a Friday of a weekend that the respondent had care of the children would be allocated to the respondent. This provision was added in belief that it would increase the respondent’s parenting time to over 40% although the endorsement does not specifically say so.
[10] I am now advised by counsel for the applicant that the actual parenting time of the respondent, based on the schedule, was 34%. I find this surprising as this figure was apparently generated using the same software that the applicant’s counsel relied on to represent that the ratio of parenting time under applicant’s proposed schedule was 40.2% to 39.8%. I note that there is not a single, universally-accepted method of calculating shared parenting time. Different methods generate different results.
[11] I am not prepared at this time to make an order for payment of child support retroactively. Motions for temporary orders are not well-suited to dealing with retroactive claims where there is a lack of clarity on factual and financial issues due to competing affidavits. These issues are better determined by the give and take of the negotiation process or, if necessary, by trial with oral testimony and cross-examination. Also, I anticipated that by making the shared parenting order last September, the set-off provisions of section 9 of the Child Support Guidelines would apply.
[5] Just prior to the return of the motion on July 2 a custody/access assessment report was completed. The parties agreed before July 2 to change the parenting schedule to accord with the assessor’s recommendations. The motion judge referred to this in his reasons at paragraph [19]:
[19] If the respondent’s parenting time set out in Ms. Bleecker’s schedule is less than 40%, he shall pay child support based on the Guidelines. If greater than 40%, the provisions of section 9 of the Guidelines shall apply.
[6] The respondent’s counsel acknowledges that as of this change to the parenting schedule the respondent does not have 40 percent of the parenting time.
[7] A notice of appeal was delivered on July 21, 2014. At some point Mr. Lyon realized leave to appeal was required. He delivered this motion on August 21. By then the motion was well beyond the seven days allowed by the Rules of Civil Procedure rule 62.02(2). The motion did not ask for an extension time. No evidentiary explanation for the delay was given. An affidavit deposed by the applicant was delivered with the notice of motion. It did not address the reason for the delay. Primarily it provides the applicant’s opinion of the errors she alleges the motion judge to have made. In my view the affidavit is improperly before the court and I direct the applicant to remove it from the Continuing Record.
[8] Mr. Lyon did advise the court orally the error was his in that he was not familiar with the requirement to first obtain leave to appeal from an interlocutory order of a judge. No further particulars were provided by way of explanation for the 30 day delay between July 21 and August 21.
[9] After the motion had been fully argued and was under reserve I learned the order from which the applicant seeks leave to appeal had not been taken out. This is not a technicality. As stated in The Law of Civil Procedure in Ontario, Paul M. Perell and John W. Morden at page 777:
There is no appeal from the reasons, alone, given by the lower court, but only from its order…
…, until the order in question has been signed and entered, the lower court is not functus officio and still has jurisdiction over the case, with the necessary consequence that the appellate court does not have jurisdiction to decide the appeal.
[10] This same reasoning applies to a motion for leave to appeal. Until the order has been signed and entered the motion judge is not functus.
[11] In this case, the motion judge’s reasons are open to interpretation. It is not clear to me that the applicant’s interpretation of the reasons is the only potential interpretation. The applicant takes the view the motion judge not only declined to award her full table child support for the period prior to July 2014, but that he also failed to order an amount under section 9 of the Guidelines. It is abundantly clear the motion judge was not prepared to accept her evidence that she had more than 60 percent of the parenting time based on the unexplained inconsistency in the representations made to him by her and Mr. Lyon. Nor was he required to do so. It is less than clear whether the motion judge also intended not to award the set off amount as of September 2013 (the date Mr. Lyon stated was now acceptable to her as part of a temporary order). The context of the motion before the judge was that the respondent was asking for a section 9 order, albeit from April 2014 onward. In paragraph [11] of his reasons the motion judge notes he had anticipated the set off provisions of section 9 would apply having regard to the order he made in September 2013. In paragraph [12] the motion judge clearly adverts to the distinction between the table amount of support and the set off amount.
[12] The applicant also complains the motion judge did not order an actual amount for child support on a go forward basis. However it seems clear that pursuant to paragraph [19] of the endorsement the respondent is ordered to pay the table amount of child support based on his annual income of $112,750 from the date of the change in the parenting regime, forward.
[13] These considerations are noted to underscore the importance of having the formal order signed and taken out before a motion for leave to appeal is heard. Until the order is taken out its precise terms will not be known.
[14] I have considered dismissing this motion outright. The process has been fraught with difficulties. The motion record remains incomplete some four months after the motion was argued. Instead I have concluded the litigants will be better served by postponing my determination of the motion. If counsel cannot settle the terms of the order they should return forthwith to the motion judge to have him settle it. When I have received the formal order I will decide the motion for leave to appeal should that still be necessary.
[15] I remain concerned at the time taken up by a proposed appeal from an interlocutory order. As soon as counsel have finalized the terms of the temporary order, they shall prepare a litigation timetable showing the remaining steps and time required to bring this case to trial readiness. This shall then be forwarded to me for scheduling purposes in my capacity as administrative judge for Ottawa Family Court.
J. Mackinnon J.
Date: November 26, 2014
COURT FILE NO.: FC-13-1861
DATE: 20141126
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Dianne Pearl Douglas, Applicant
AND
Rene Albert Faucher, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Cecil J. Lyon, Counsel for the Applicant
Jack Pantalone, Counsel for the Respondent
ENDORSEMENT
Mackinnon J.
Released: November 26, 2014