Potter v. DaSilva, 2015 ONSC 3088

COURT FILE NO.: 3874/14

DATE: 20150526

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jacqui Potter

Applicant (Respondent on Appeal)

– and –

Luis Filipe Neves DaSilva

Respondent (Appellant on Appeal)

Steven McCutcheon, for the Applicant (Respondent on Appeal)

D. Smith, for the Respondent (Appellant on Appeal)

HEARD: April 29, 2015

REASONS FOR JUDGMENT

Trimble J.

1This is an appeal by Mr. DaSilva from the decision of Mme. Justice Zisman of the Ontario Court of Justice, of June 19, 2014.

2In her decision, Zisman J. awarded Ms Potter sole custody of their child, JDP, born June 3, 2006. She ordered an access schedule which was much less than equal time with each parent (but with greater access to Mr. DaSilva than his interim access), retroactive child support from JDP’s birth to February 1, 2012 fixed at $21,185 (to be paid in monthly installments of $500) and child support going forward.

3Notwithstanding the 26 errors alleged in the Notice of Appeal, Mr. DaSilva limited his appeal to two issues: access and retroactive child support.

4First, Mr. DaSilva says that Zisman J. erred in ordering the access she ordered. She ought to have ordered equal access on a week about rotation between the parents as contemplated by the Office of the Children’s Lawyer (“OCL”) report.

5Second, Mr. DaSilva says Zisman J. ought not to have ordered retroactive child support.

DISPOSITION:

I dismiss the appeal for the reasons set out below.

ANALYSIS:

1. What is in issue?

6The Appellant advised that the only two issues on appeal were with respect to access and retroactive child support. He advises that his appeal is on matters of law, and not from any finding of fact.

2. Standard of Review

7The standard of review of an appellate Court in family matters was set out in Van de Perre v Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 and Sferruzzi v. Allan, 2013 ONCA 496 at para. 43, [2013] O.J. No. 3381. The standard for review on issues of law is correctness. The standard of review on issues of fact is deference. In other words in order to succeed in an appeal from a finding of fact, the appellant must show that there was a material error, or palpable and overriding error on an issue of fact (Pike v. Cook, [2005] O.J. No. 4529 (ONCA), Marcus v. Lebedoff, [2003] O.J. No. 5166 (ONSC)). Where the issue appealed from involves mixed law and fact, the standard of review is deference, unless the legal issue can be extricated from the factual, in which case the standard of review is correctness and deference, respectively (Sattva Capital Corp v. Creston Moly Corp., 2014 SCC 32, [2014] 2 S.C.R. 633).

8Because custody and access decisions require the careful balancing of competing interests based on evidence at trial, an appellate Court must approach a trial judge’s decision with considerable respect (C.S. v. M.S., 2010 ONCA 196). The trial judge’s decision demands appellate deference (Pike v. Cook, supra and Marcus v. Lebedoff, supra). Absent an error or misapprehension of relevant evidence, the assignment of weight to any piece of evidence or to any of the factors to consider, is for the trial judge to decide (Pike v. Cook, supra). The deference principle prevents an appellate Court from conducting a de novo hearing or de novo weighing of evidence or of the factors to consider (Pike v. Cook, supra).

3. Mr. DaSilva’s Access

a) Mr. DaSilva’s Position:

9At trial, Mr. DaSilva sought joint custody and equal access with alternate weeks (“week about”) with each parent. He based his submission on a report from the Office of the Children’s Lawyer (“OCL”). Zisman J. placed declined to give the standard ‘considerable weight’ to the OCL report and awarded specific, fixed access times to Mr. DaSilva which mirrored the interim access pre-trial, with additional access of a Sunday overnight during his weekend access, and two consecutive weeks in the summer.

10Mr. DaSilva gives three grounds for his appeal: Zisman J. applied the wrong test, Zisman J. erred in dismissing the OCL report, and Zisman J.’s reasons for her decision were insufficient.

b) Zisman J. applied the Wrong Test:

11Mr. DaSilva submits that Zisman J. erred in law when she “confounded” the test for custody as set out in Kaplanis v Kaplanis, 2005 ONCA 1625, [2005] O.J. No 275 (ONCA) with the test for access. According to Mr. DaSilva, the test for custody is s. 24 of the Children’s Law Reform Act (“CLRA”). The test for access involves weighing three factors: the maximum contact principle, managing conflict, and the wishes of the child. Mr. DaSilva argued most strenuously that Zisman J. gave no weight to the wishes of the child. Further, he says that the parents’ mere inability to cooperate is not a sufficient reason to deny him equal access time.

12Zisman J. applied the correct test to both access and custody: the best interests of the child, the elements of which are set out in s. 24 of the CLRA. In doing so, she committed no error. Whether one looks at S. 24 of the CLRA or s. 16 of the Divorce Act, the test is the same.

13In any event, Zisman J. correctly applied Kaplanis. In that case the court held that it was an error to award joint custody where there is no evidence of cooperation and communication among the parents and where there was the mere hope that communication and parenting skills would improve. In this case, Zisman J. held that there was no civil communication between the parties and no hope that Mr. DaSilva’s style of communication would improve. Second, Kaplanis says that while the wishes of the child are important when considering the child’s best interests. Where the child is young, as in this case, expert evidence is required to discern the child’s best interests, since a young child’s express wishes do not likely reflect his or her best interests. In this case, as noted below, Zisman J. held that the expert evidence that was obtained, was flawed and unreliable.

14Mr. DaSilva’s position would have the views of the very young child determine the question of access. The views and preferences of a very young child are only two of many factors and should be weighed with all other factors (Stefureak v. Chambers, 2004 ON SC 34521, [2004] O.J. No. 4253(S.C.J.)]. The child was only six years old. On the evidence before her, it is clear that Zisman J. thought that the OCL put excessive weight on a six year-old child’s view. In my view, Zisman J. applied common sense and fairness in deciding access. I see nothing in her approach to the issue that would suggest that I should interfere with her decision.

c) Justice Zisman Erred In Dismissing The OCL Report:

15Mr. DaSilva argues that Zisman J. dismissed the OCL report as unreliable. She did so, however, only with respect to issues of custody. She ought not to have dismissed the OCL report for the purposes of deciding access.

16I disagree with this submission for three reasons.

17First, since the test for access and custody is largely the same, it is logically inconsistent to say that the OCL report, found unreliable for the purposes of awarding custody, is reliable or adequate for the purposes of deciding about access.

18Second, Mr. DaSilva said that his appeal was from legal conclusions, only. Zisman J.’s decision that the OCL report was not reliable was a finding of fact. That finding of fact was supported amply by evidence.

19In any event, Zisman J. made a thorough review of the OCL report (para. 60, pg. 10 to 63, pg. 12), the factual underpinnings and the shortcomings of the report (para. 64, pg. 12 to 65, pg.16), and the evidence about events that occurred after the OCL report was delivered that were germane to the issues that the OCL addressed (para. 66, pg. 16 to para. 78, pg. 18). Having done that thorough review, Zisman J. found that the OCL report was not reliable. It ignored or neglected to investigate relevant information regarding the parties’ relationship, applied incorrect legal considerations, placed undue weight on the view of a six year old child, and ignored subsequent events indicating that the parties cannot cooperate. She declined to follow it as it was not a thorough report and lacked in-depth analysis. Even without the OCL report, there is evidence to support Zisman J.’s finding. There is no reason to disturb it.

20Third, I do not agree that Zisman J. dismissed the OCL report only with respect to the issue of custody. She correctly held that the best interests of the child govern both access and custody. The OCL report addressed the investigator, Ms Dorion’s view of the best interests of the child for custody and access. Ms Dorion’s opinion does not differentiate between the best interests of the child for custody purposes or for access purposes. If the OCL reports and its recommendations were not reliable with respect to custody, they are equally unreliable with respect to access.

d) Zisman J.’s Reasons Concerning Access Were Insufficient:

21Mr. DaSilva says that Zisman J. addressed the issue of access in “three scant” paragraphs (see Reasons para. 107 to 109). She ignored the child’s needs and wishes. She ignored the maximum contact principle. Her decision did not consider this particular child’s circumstances or wishes. JDP’s wishes, he argues, were consistent, clear, warmly expressed, honest and forthright: he wanted to spend more time with his father. His wishes were given no weight.

22This ground of appeal is an attack, in part, on the sufficiency of Justice Zisman’s reasons.

23Mr. DaSilva is not correct. The learned trial judge considered all of the factors under s. 24 of the CLRA (see Reasons para. 79) which include considering the needs of the child and the child’s wishes. She also considered the principle of maximum contact set out in Gordon v. Goertz, 1996 SCC 191, [1996] 2 S.C.R. 27 (see Reasons para. 142). In addition, her decision to not give the OCL report the usual ‘considerable weight’ given to OCL reports followed an assessment of the OCL’s report as it pertained to access as well as to custody.

24As to the sufficiency of Zisman J.s reasons, the Supreme Court of Canada says that a judge, in giving reasons, must provide sufficiently intelligible reasons to allow the parties to discern why the result reached by the Court came about, and to permit appellate review. The judge does not need to indicate, expressly, that all relevant considerations have been taken into account, nor is he required to review in his reasons every piece of evidence. Rather, there must be enough in the reasons to show that the judge had (or did not have) a misapprehension of the evidence (see R. v. Sheppard, 2002 SCC 26, [2002] 1 SCR 869). Further, the judge does not need to address every argument raised by each party (R. v. Newton, [2006] O.J. No. 1008 (ONCA)).

25In my view, the learned trial judge’s reasons exceed the Sheppard test. Her reasons for deciding as she did on access considered the relationship between the parties (see Reasons para. 17 to 46), the parties’ inability to communicate (see Reasons para. 47 to 57), the wishes of the child, the OCL report (see Reasons para. 60 to 75), and the legal and statutory framework applicable (see Reason para. 79 to 82). Zisman J.’s reasons concerning Mr. DaSilva’s access were thoughtful and thorough. In reaching her decision, she considered all factors and evidence related to the best interests of the child, the child’s needs and wishes, and the maximum contact principle. That she extended Mr. DaSilva’s access, modestly, speaks to her review of these considerations.

26This position in respect of the appeal is also an attack on Zisman J.s weighing of the factors regarding access. As indicated above, Zisman J. is entitled to considerable respect and deference. I find no error or misapprehension of relevant evidence. The assignment of weight to any piece of evidence or to the factors to consider is for the trial judge to decide.

4. Retroactive Support:

a) Mr. DaSilva’s Position:

27Zisman J. ordered that Mr. DaSilva pay to Ms Potter retroactive child support from the child’s birth to February 1, 2012 totalling $21,185, to be paid in monthly instalments of $500 beginning August 1, 2014.

28She ordered support of $915 per month for 2012, and $961 per month for 2013, less credit for any amounts paid in those years. She fixed Mr. DaSilva’s share of section 7 extraordinary expenses at 61 per cent of provable expenses, commencing on the date of her reasons.

29Mr. DaSilva appeals from the learned trial judge’s decision awarding retroactive child support. He says none should have been awarded. In the alternative, Mr. DaSilva says that if an award of retroactive child support was warranted, it should have been calculated only from August, 2010, three years before Ms Potter amended her Application to claim retroactive child support, specifically.

30Mr. DaSilva says that Zisman J. misapplied the four-part test from D.B.S. She ought not to have awarded retroactive support, at all. Mr. DaSilva’s argument focussed mainly on two of the D.B.S. factors: Ms Potter gave no explanation for the delay and the child suffered no prejudice because of Mr. DaSilva’s failure to pay adequate table support since the child’s birth.

31Alternatively, Mr. DaSilva says that support ought only to have been awarded from August, 2010 onward. The Application was brought on October 5, 2011. Ms Potter claimed child support in accordance with the Federal Child Support Guidelines. There was no specific request for retroactive child support. It was not until August 15, 2013 that Ms Potter amended her Application to request retroactive child support, specifically. This was after Mr. DaSilva filed his Response and Ms Potter her Reply.

32The parties agree that Ms Potter’s amending her Application to seek retroactive support was the first notice of her intention to seek it.

b) The Law:

33The seminal case on retroactive child support is the Supreme Court of Canada’s decision in D.B.S. v. S.R.G 2006 SCC 37, [2006] 2 S.C.R. 231. In that case, the Court addressed appeals by four fathers from orders made against them for retroactive child support. Justice Bastarache, speaking for the majority, set guidelines for trial courts to consider when making awards for retroactive child support. “None of these factors is decisive”, says Bastarache J. (at para. 99). Further, Bastarache J. does not say that his list of four factors is a complete list. Rather, he says that one must take a “holistic view of the matter” and decide each case on its individual factual matrix (at para. 99).

34Bastarach J. (at para. 96 and 97) cautions that retroactive awards impair the delicate balance between certainty and flexibility. However, as situations evolve, fairness demands that obligations change to meet them. Arrangements should not be gratuitously disrupted. Retroactive awards are not to be seen as exceptional. While they upset predictability based on current arrangements, they may be justified when the paying parent brings the unpredictability upon himself.

35Bastarache J.’s four factors, are:

1. Reasonable Excuse for delay (see para. 100 to 104): The court must look at the circumstances surrounding “the recipient’s choice (if it was indeed a voluntary and informed one) not to apply for support earlier….” However, the Court should not hesitate to find a reasonable excuse where the recipient parent harboured justifiable fears that the paying parent would react vindictively to the application to the detriment of the family. Alternately, the recipient parent may not have had the resources to pursue the paying parent. The court must also consider the certainty of the status quo and setting a rule that encourages receiving parents to enforce paying parents’ obligations.

2. Conduct of the Paying Parent (see para 105 to 109): While the paying parent has an interest in certainty with respect to his obligations, this interest is least compelling where the paying parent has engaged in blameworthy conduct. The court should take an expansive view of what constitutes blameworthy conduct. Bastarache, J. said that any conduct that privileges the paying parent’s own interests over the children’s rights to appropriate support is blameworthy conduct. “… [A] payor parent cannot mislead a recipient parent into believing that his/her child support obligations are being met when (s)he knows that they are not.” (at para. 106). Doing nothing to avoid the obligation is still blameworthy if the paying parent chooses to ignore the obligations. Whether a parent is avoiding obligations is a subjective question determined by objective indicators. For example, it may be sufficient that the paying party’s actions and payments had the “effect of” meeting support obligations.

3. Circumstances of the Child, past and present (see para. 110 to 113): A child’s standard of living post separation should approximate, as best as can be done, the child’s standard of living pre-separation. A retroactive award is less appropriate where the child’s needs were met at the time the support was owed. Hardship suffered by other family members such as recipient parents who sacrifice to ‘pick up the slack’ from the non-paying parent, is irrelevant in determining whether the child was suffering hardship because of the non-payment.

4. Hardship to the Paying parent (see para. 114 to 116): This is a broad consideration. Child support is calculated, in part, on the paying parent’s ability to pay at the time that the support is to be paid. Large retroactive awards, however, are not related to what the paying parent can currently pay. Retroactive awards should be crafted to minimize the hardship on the payor.

36Once a Court decides to award retroactive support, the question becomes from when, and to when should the retroactive support be paid. The Court held that the date of “effective notice” to the paying parent is the date on which the right for a retroactive award begins.

37How far back can a retroactive award reach from the effective notice date? The Court held that in the majority of circumstances, the reach-back of retroactive support, if warranted, should be three years, provided the paying parent acted reasonably, for instance in disclosing income changes (see para. 125). “Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond when circumstances changed materially. A paying parent should not be permitted to profit from his/her wrongdoing.” (para. 125).

c) Analysis:

38Mr. DaSilva’s position on appeal that retroactive support ought not to have been awarded has three parts. First, he says that Ms Potter did not lead evidence to justify her delay in applying for retroactive support. Therefore, Zisman J. erred in applying the first D.B.S. factor by finding that Ms Potter was afraid to claim child support from Mr. DaSilva. Ms. Potter never said “I did not pursue retroactive support because I was afraid of Mr. DaSilva”, or words to that effect.

39Second, Mr. DaSilva says that Zisman J. misapplied the D.B.S. third factor regarding the hardship of the child caused by Mr. DaSilva’s failure to pay table support. The child never suffered any hardship. Ms. Potter did. Her parents did. They both ‘took up the slack’ by virtue of Mr. DaSilva’s failure to pay table support. The child, however, suffered no hardship. His needs were all met.

40Third, Mr. DaSilva said that Zisman J. erred in awarding retroactive child support beginning with the child’s birth.

41In my view, Zisman J. committed no reviewable error. I say this for several reasons, including:

a) The learned trial judge applied the D.B.S. factors holistically. She considered all of the factors. The weight she gave to any of the factors is within her discretion as the trial judge, and she is entitled to deference. Mr. DaSilva’s appeal as to retroactive support invites a re-weighing of evidence and the D.B.S. factors, neither of which are appropriate for an appellate court to do.

b) With respect to Ms Potter’s explanation for delay in requesting retroactive support, it may be true that Ms Potter never said “I did not pursue retroactive support because I was afraid of Mr. DaSilva”, or words to that effect. This notwithstanding, Zisman J. held that Ms Potter delayed pursuing retroactive support from Mr. DaSilva because she was afraid of his reaction. There was ample evidence of Mr. DaSilva’s threatening, abusive, inconsistent and angry behaviour to support Zisman J.’s conclusion. It should not be disturbed.

c) Further, Zisman, J. found that Ms Potter could not afford to pursue a claim for retroactive support. There is ample evidence to support this finding. It should not be disturbed.

d) It is true that it was admitted that the child suffered no hardship by virtue of Mr. DaSilva’s failure to pay table support. The child’s needs were always met. This ground of appeal says, implicitly that Zisman J. ignored, or unduly minimized the importance of the D.B.S. factor of hardship to the child. As indicated above, the weight to be placed on any of the D.B.S. factors is a matter for the trial judge who heard the evidence. She is entitled to deference. I can find no error.

e) It is clear that Mr. DaSilva’s conduct weighed heavily in Zisman J.’s decision. Mr. DaSilva says that Zisman J. allowed her view of his credibility to ‘colour’ her analysis regarding retroactive support such that she, in effect, made a punitive award. I find no basis for this position. Zisman J. found Mr. DaSilva’s credibility to be so low that where there was any contradictory evidence, she believed it and not him. She explained why she came to this conclusion. There was ample evidence to support her finding. I can find no palpable and overriding error in this conclusion.

f) I do not find that Zisman J.’s findings concerning Mr. DaSilva’s credibility ‘coloured’ her award of retroactive support to the child’s birth. She clearly found Mr. DaSilva’ conduct to be blameworthy conduct of the first order. In brief, Zisman J. found that Mr. DaSilva paid what he wanted, when he wanted, and in the amount he wanted, notwithstanding that because his Mother worked for Mr. Callahan, his first lawyer in this case, he likely knew about the Child Support Guidelines. He did not pay child support for the first six months of the child’s life. Rather he paid for specific items that he determined were necessary. From January 1, 2007 to December 1, 2008, he paid support based on his 2005 assessment, the only assessment he ever disclosed, voluntarily. He says that he ‘voluntarily’ increased payments in January of each of 2009, 2010, 2011 and 2012. He did not disclose his income for any year other than 2005, and that income he only disclosed in 2007. His income increased in each year. On February 29, 2012, Mr. DaSilva says he “consented” to an order whereby he would pay table support based on an agreed-upon income, which was amended on May 7, 2012 after he received his assessment for 2011. Until the orders were made in February and May, 2012, the support paid was always below table amount.

g) Between 2007 and the trial, Zisman J. found that Mr. DaSilva had materially increased his assets.

h) After a thorough analysis, Zisman J. said:

“I find that balancing all of the factors, the mother is entitled to retroactive child support to the date of the birth of the child. The father was aware of his child support obligations and chose to pay what he wanted and as a result he benefited his own interests over those of the child. I find that the mother was afraid and intimidated by the father and as a result did not earlier pursue the correct amount of child support. I find that the father has, since [JDP] was born, chosen to conceal or diminish his income to the detriment of the child. The mother is only seeking retroactive table child support and not pursuing a claim for retroactive contribution by the father to the child’s special expenses. The father has the ability to pay a retroactive order.” (see para. 156 Reasons).

i) In deciding of the period of retroactivity, Zisman J., implicitly, made the finding, consonant with para. 125 of D.B.S., that Mr. DaSilva failed to disclose his income in 2007 or any changes in his income after that, and thus engaged in blameworthy conduct. In light of that, there was no reason to protect his interest in certainty. He should not be permitted to profit as he did from his own intentional lack of disclosure.

5. $5,000 Held in Trust

42In my endorsement of March 9, 2015, as modified by my endorsement of March 19, 2015, I allowed Mr. DaSilva an adjournment of the appeal so that he could file an Amended Factum, narrowing the issues on the appeal. As a term of that order, in addition to costs thrown away fixed at $7,500, Mr. DaSilva was to pay $5,000 to Mr. McCutcheon’s trust account, to be held to the credit of the action. Having dismissed Mr. DaSilva’s appeal, I order that the $5,000 held in Mr. McCutcheon’s trust account be applied to reduce the outstanding retroactive support award. For the sake of clarity, the $5,000 credit does not delay the beginning of the payment period set out in paragraph 24 of Zisman J.’s order of August 1, 2014; rather, in shortens the payment period.

6. Costs

43At the end of the April 29, 2015 hearing, I invited counsel to either agree, or to make written submissions, within a week, not to exceed two written pages, as to the amount of the costs to be paid by the loser to the winner of this appeal. I have heard nothing from either party.

44The appeal consumed 3.5 hours of Court time.

45Mr. DaSilva shall pay to Ms Potter costs on a partial indemnity scale of $5,000, plus HST and disbursements, payable within 14 days of the release of these reasons. These costs are the costs of the appeal. Costs of interlocutory steps and cost thrown away because of Mr. DaSilva’s request for an adjournment have been dealt with already.

Trimble J.

Released: May 26, 2015

Potter v. DaSilva, 2015 ONSC 3088

COURT FILE NO.: 3874/14

DATE: 20150526

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jacqui Potter

Applicant (Respondent on Appeal)

– and –

Luis Filipe Neves DaSilva

Respondent (Appellant on Appeal

REASONS FOR JUDGMENT

Trimble J.