ONTARIO
SUPERIOR COURT OF JUSTICE
FILE NO.: 382/13
DATE: 2014/12/29
BETWEEN:
Michael Jacob Feldman
Carolyn Shelley, for the Applicant, Responding Party
Applicant
- and -
Lindsay Ford
Mary-Jo Maur, for the Respondent, Moving Party
Respondent
HEARD: December 9, 2014
DECISION ON MOTION FOR LEAVE TO APPEAL
MINNEMA J.
Nature of Hearing
[1] On September 12, 2014, Justice Sheffield of this court heard two motions. His decision is found at 2014 ONSC 5552. He clearly and succinctly dealt with a number of complicated issues. The respondent mother seeks leave to appeal the quantum of interim spousal support.
Basic Facts
[2] The court assessed the means and needs of the parties. The applicant father’s income was found to be $478,932 and the mother’s income was imputed to be $37,500 (as noted below, at one point $37,000 was also stated, however both parties used $37,500 in their Spousal Support Advisory Guideline (“SSAG” or “Guideline”) calculations generated by the Divorcemate software).
[3] The mother’s Divorcemate SSAG calculation using the above figures provided for a spousal support range of $5,624 (low), $6,476 (mid) and $7,313 (high). The father’s calculation used $350,000 for his own income, even though, as noted, it was found to be $478,932. That provided for a spousal support range of $1,531 (low), $1,990 (mid) and $2,456 (high). Both Divorcemate calculations took into account the father’s child and spousal support obligations from a previous relationship.
[4] It is clear that the Divorcemate calculation using the $350,000 figure was intended to reflect what is called the Guideline “ceiling”. There was no disagreement between the parties about the ceiling or its effect, summarized in the following excerpt from Chapter 11.1 of the Guidelines themselves:
The ceiling is a gross annual payor income of $350,000. After a payor’s gross income reaches the ceiling of $350,000, the formulas should no longer be automatically applied to divide income beyond that threshold. But the $350,000 is not a “cap” either, as spousal support can and often will increase for income above that ceiling, on a case-by-case basis.
[5] The court assessed the circumstances of the parties and the purposes of an order for spousal support as set out in subsections 33(8) and (9) of the Family Law Act, R.S.O. 1990, c. F.3, as amended (“the Act”). Following that, the critical statements on which this motion for leave is founded read as follows:
[69] With Dr. Feldman’s income of $478,932.00 and Ms. Ford’s income of $37,000.00, the SSAG range is between $1,500.00 and 2,500.00 per month.
[70] I order that Dr. Feldman pay spousal support in the low range, at a rate of $1,500.00 per month to Ms. Ford, starting on October 1, 2014, until further order. In ordering an amount in the low range of the SSAG guidelines, I wish to stress the importance of Ms. Ford moving towards self-sufficiency while she has the assistance of $18,000 in spousal support income and $44,364 in child support income.
Law
[6] Pursuant to Rule 38(1) of the Family Court Rules, O. Reg. 144/99, the test for leave to appeal is found at Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as follows:
62.02(4) Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
Analysis
62.02(4)(a): Conflicting Decisions and Desirability
[7] The first part of the two part test in 62.02(4)(a) is not met by showing that another court exercised its discretion in a way that produced a different result. Rather, it is necessary for the mother to demonstrate a difference in the principles that guided the court in the exercise of its discretion: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div.Ct.) at para. 7.
[8] The mother argued that “the learned judge erred by apparently assuming, although without stating in the reasons given, that there was a “hard cap” on the payor’s income for the purposes of the SSAG of $350,000”. There are judicial decisions indicating that there is no hard cap, which is consistent with the above quote from the Guidelines.
[9] The court gave reasons why it was of the view that the level of support ordered would meet the objectives of the Act. The decision specifically referenced the context and history of these parties, considered the needs of the mother pending trial, and considered the legislative objectives, giving particular weight to the objective of promoting self-sufficiency. The Guidelines themselves in Chapter 11.3 indicate “If the payor earns more than $350,000, e.g. $500,000, a court can decide to go higher or not.” Therefore, setting interim spousal support based on the father’s income at the ceiling was one option among the ambit of reasonable solutions available. It does not follow that in not going higher the court was simply assuming a hard cap. As such, I do not see a conflict with other court decisions that confirmed there is no hard cap. In my view, the first part of the 62.01(4)(a) test has not been met.
[10] That ends the inquiry. However, for completeness, I turn to the second part of the two part test in 62.02(4)(a). I adopt the following passage from Brown v. Brown (1999), 1999 15074 (ON SC), 45 O.R. (3d) 308 (Ont. S.C.J.), at para. 34:
Interim orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will get a full airing at trial. Of necessity, interim orders are susceptible to error - the same evidence is simply not available at that stage as at trial. Interim orders are makeshift solutions until the correct answer is discovered at trial.
[11] The trial judge will benefit from a full review of the merits. If necessary, he or she will be able to correct past support. Should the level of interim spousal support be found to be too low, it can be adjusted back to the date of the interim order. Juxtaposed to this is the reality that interlocutory appeals take time to run their course, comparable in some cases to what it would take to get the application itself to trial: see Selznick v. Selznick, 2003 CarswellOnt 2569 (S.C.J.) at para. 10-4. For those reasons, courts have noted that granting leave to appeal an interim spousal support award would rarely, if ever, be desirable: see Jessome v. Jessome, [1998] O.J. No. 5565, 43 R.F.L. (4th) 196 (S.C.J.) at para. 7, and Selznick at paras. 14 and 16. Had there been a conflicting decision by another judge, I am not of the opinion that the second part of the 62.02(4)(a) test has been met.
62.02(4)(b): Correctness and Importance
[12] It was conceded that there was a mistake in the way the decision was worded. The court misstated which Divorcemate SSAG calculation it was using in paragraph 69, and did not indicate that it was applying the ceiling. Those mistakes could have, and arguably should have, been addressed more quickly and efficiently by resort to Rule 25(19) of the Family Law Rules which says: “The court may, on motion, change an order that, … (b) contains a mistake”. I note that the failure to follow that course of action was one of the reasons why the court in Seliznick concluded that the test for leave had not been made out: see para. 10-2.
[13] Leaving that difficulty aside, regarding the first part of the two part test in 62.02(4)(b), I do not see a good reason to doubt the correctness of the order. The court gave reasons why it felt that the total level of support met the objectives of the legislation. Applying a SSAG calculation based on the father’s income at the ceiling was within its discretion.
[14] Looking at the second part of the two part test in 62.02(4)(b), it is clear that the reference to “importance” means that leave shall only be granted regarding matters of “public importance and matters relevant to the development of the law and the administration of justice”: Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.) at para. 7. The matter must “transcend the interests of the parties”: Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.). Interim spousal support orders are, by their very nature, intended to be temporary and personal between the parties, and as such, courts have noted that it would be very difficult to satisfy this part of the test: see Jessome at para. 8 and Selznick at para. 16. Had I found that there was a good reason to doubt the correctness of the order, in my opinion the proposed appeal does not involve matters of such importance that leave to appeal should be granted.
[15] Lastly, brief reference was made to the discrepancy between the Divorcemate calculation ($1,531) and the amount of spousal support actually ordered ($1,500). The mother did not make an issue out of it. The procedure noted above in paragraph 12 is specifically designed to address typographical errors. I would expect any necessary adjustment could be made on consent.
Decision
[16] As noted in Bell Expressvu Ltd. Partnership v. Morgan, 2008 CarswellOnt 7000 (Div. Ct.) at para. 1, the test for granting leave to appeal is an onerous one. For the reasons stated, it has not been met in this case. The motion is therefore dismissed. If the parties cannot resolve the issue of costs, I will accept brief written submissions within twenty days.
Justice T.P. Minnema
Released: December 29, 2014
FILE NO.: 382/13
DATE: 2014/12/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michael Jacob Feldman
Applicant
– and –
Lindsay Ford
Respondent
REASONS FOR JUDGMENT
Minnema J.
Released: December 29, 2014