ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 7567/13
DATE: 2015-07-03

B E T W E E N:

Barbara Anne Reid (Aiello)

Michael S. L. Roberts, for the Applicant

Applicant

• and -

Philip Aiello

Virginia L. Workman, for the Respondent

Respondent

The Honourable Justice T. Maddalena

RULING ON CALCULATIONS AND COSTS

1On December 19, 2014 Justice Tucker heard the within long motion and provided her endorsement on the motion on January 5, 2015.

2Once her ruling was released, Justice Tucker invited counsel to provide their calculations dealing with retroactive child support. Counsel provided several sets of calculations. However they were unable to agree upon the calculations for retroactive support and costs. Justice Tucker has retired and, accordingly, the matter has been put to me for completion.

3It is clear from the endorsement of Justice Tucker that support for Adam terminates at the end of May 2013 when Adam finished school and began working on a fulltime basis.

4Justice Tucker further ruled that there is no entitlement for Adam with respect to s.7 or retroactive child support.

5Justice Tucker further ruled that no support shall be paid for Alex from August 2012 through to August 2013.

6Further, Justice Tucker ruled that Alex is entitled to child support up to and including August 31, 2014 at which point all support for Alex will terminate. Justice Tucker further ruled that Alex was to pay one-quarter of his s.7 expenses with the respondent to pay the balance. It appears from the submissions that the parties have at least agreed that the s.7 expenses owed by the father to the mother on account of Alex are $1,415.19.

7Further, Justice Tucker ruled that Alex is entitled to retroactive child support up to and including August 2010. There is no retroactive child support for Adam, although it is clear that up until May 2013 Adam was entitled to support set out in the order of October 17, 2000.

8Therefore, in summary, Alex is entitled to retroactive adjustment on his child support commencing August 2010 until August 31, 2014 when there is no further child support payable. In addition, there is no support owing for Alex from August 2012 to August 2013. Further, while there is no retroactive support available for Adam, Adam is entitled to ordinary child support up to and including May 31, 2013 at which point the support for Adam terminates.

9Thus, retroactive support and s.7 expenses can only be calculated with respect to the child Alex. Support for Adam continues up until May 2013 but there is no retroactive support or any s.7 expenses applicable to Adam. The retroactive support to August 2010 applies only to the child Alex.

10The parties have not been able to agree in their calculations once the court made the findings of entitlement. Both parties have submitted various calculation charts. There is retroactive variation for one child only, but support payable for two children up until May 2013.

11There is no case exactly on point. The calculation chart provided by Ms. Workman on January 16, 2015 includes calculations for table support and an adjustment for support for one child and credits payment made for two children throughout. According to that table, and taking into consideration the father’s responsibility for s.7 expenses for Alex in the amount of $1,471.73, the total due to the father by the mother is $7,930.77. This chart does not take into consideration ongoing support for the child Adam up to and including May 31, 2013. The second table, also attached to the calculations of Ms. Workman, takes into consideration child support due for one child and takes into consideration amounts to be paid for only one child. The overall impact of this table shows that the mother owes to the father $4,926.48. Again, this table does not take into consideration the ongoing child support for Adam up to and including May 31, 2013.

12A third chart submitted by Ms. Workman provides that, overall, the mother owes the father $877.32.

13I have been provided with the case of Field v. Field, [2011] N.B.J. No. 220.

14Field v. Field provides two options available to the court for consideration. I have reviewed that case and the options, and I find that both options, if applied to the case herein, are problematic.

15Following Field v. Field, at para. 3, under the first option, the respondent would receive credit for child support paid for two children as a set off against the retroactive award for one child. This results in a windfall to the respondent at the expense of the mother, as the applicant can recover a retroactive award for one child, but the respondent receives credit for payments made for two children.

16Still following Field v. Field, under the second option, the respondent would receive credit for child support paid for one child as a set off against a retroactive amount for one child. This option ignores the amounts actually paid by the respondent.

17Option 1 ignores the fact that while there is retroactive support for Alex only, Adam is still entitled to regular ongoing support to May 31, 2013 in accordance with the order of October 17, 2000.

18Option 2 of the Field decision would credit the respondent with a lesser amount that he has actually paid, and also ignores the ongoing obligation for Adam until May 31, 2013.

19The two calculations provided by the applicant are also problematic. They show that the support arrears owed by the father to the mother are $6,050.00. This, in my view, is a windfall to the applicant mother, at the expense of the father. The additional calculation shows that the mother owes the father $4,530.00 which is a windfall to the respondent.

20The problem is that the applicant can recover retroactive support for one child, while the respondent would receive credit for payments which he has made for two children.

21Clearly, the case of Field v. Field does not provide satisfactory answer for the problem addressed herein.

22I have taken a different approach in the calculations. It is appropriate that Adam have regular and ongoing child support as per the order of October 17, 2000 with the child support to terminate May 31, 2013. Also, it should be borne in mind that there is no support payable for Alex from August 2012 through to August 2013. Finally, all support for Alex terminates as of August 2014.

23Taking all of these into consideration, I have attached at Schedule “A” a chart wherein I have calculated support for Adam ongoing in accordance with the order of October 17, 2000 up to and including May 2013. I have readjusted for Alex based on the new amount since retroactive support was awarded for Alex only effective August 2010. As a result of the calculation, and taking into consideration the s.7 expense, there is an amount owed by the father to the mother of $27,422.19. However, the father has actually paid during the relevant period $28,102.50. Thus, the mother owes the father $680.31.

Costs

24The applicant seeks her costs from the respondent fixed at $54,579 inclusive of HST. The respondent seeks his costs against the applicant fixed at $17,899 inclusive of HST.

25There are two offers to settle, one by the applicant and one by the respondent attached to the costs submissions. Neither of the offers falls within Rule 18 of the Family Law Rules. The calculations of both counsel were complicated by the fact that there is no clear methodology for such a case as this.

26Accordingly, I conclude that any costs award ought to be minimal. I have further considered all those factors set out in Rule 24.

27I therefore order costs to the applicant owed by the respondent fixed in the amount of $680.31, which therefore reduces the monies owed by the applicant to the respondent, as a result of my calculation, to zero.

28Accordingly, there are no further monies owed by one to the other.

Maddalena J.