ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 2872-13-01

DATE: 2015-10-16

BETWEEN:

SHARON CATHERINE McSHEFFREY
Applicant/Respondent on Appeal

– and –

KENNETH ERNEST DANIEL McSHEFFREY
Respondent/Appellant on Appeal

D. Kearns, Counsel for the Applicant/Respondent

For self

HEARD: August 12, 2015

RASAIAH J.

REASONS ON APPEAL

OVERVIEW

1This is an appeal of a support order made by the Honourable Justice Villeneuve January 13, 2014.

2The order was made on a motion to change which had been brought by the Respondent in this appeal. At the motion to change hearing, the Respondent sought:

(a) to change child support payable by the Appellant for their three children, and in particular that child support be paid in accordance with the Child Support Guidelines (Ontario) O. Reg. 391/97, as amended (“Guidelines/Guideline”); and

(b) to change child support retroactive to August 1, 2011.

3Justice Villeneuve fixed the Appellant’s income for 2013 at $80,000.00. He ordered that the Appellant pay Guideline support commencing November 1, 2013 based on this income. He then fixed arrears of child support retroactive to August 1, 2011 based on the applicable annual income of the Appellant, and the applicable Guideline amount, less the amount of support that the Respondent indicated that the Appellant had paid in those years. A copy of the said Order was filed by the Appellant in his Appeal Record at page 40, along with a copy of the related endorsement, which is found at page 36 of the said record.

4The Appellant claims that Justice Villeneuve erred in setting his income at $80,000.00 and in awarding retroactive support to August 1, 2011.

BACKGROUND

Relationship and Children

5The Appellant and Respondent were married August 20, 2005. They separated July 27, 2011. They have three children, namely Kaleigh McSheffrey, born April 15, 2004, Adrian McSheffrey, born May 10, 2006 and Vanessa McSheffrey, born September 10, 2008. Since the parties' separation, all of the children have primarily resided with the Respondent in Elliot Lake, Ontario. The Appellant resided in the matrimonial home in Marathon, Ontario until on or about September 2013. On or about September 2013, he moved to Saskatchewan for employment because he had been laid off from his job August 24, 2013 and was in need of work. On January 13, 2014 the Appellant advised the court that he had taken a temporary contract with Onsite Sign Group driving a boom truck in Saskatoon, Saskatchewan but that he was going to be laid off effective January 20, 2014.

Separation Agreement

6Following their separation, the parties entered into a Separation Agreement (“agreement”). It was signed by both parties July 27, 2011, a copy of which was filed at Tab 1 of the Respondent's Appeal Record. It appears from the face of the document that the execution of the agreement was witnessed. The agreement was filed with the Ontario Court of Justice on July 28, 2011 in accordance with section 35(1) of the Family Law Act R.S.O. 1990, c.F.3, as amended (“Family Law Act”).

7In respect of child support, paragraph 4 of the agreement states: "Support to be paid for children $250.00 every pay week." The agreement also indicates that "the Father to maintain health care plan and RESP for children." Neither the support clause, nor the agreement itself on its face indicated how the quantum of support was arrived at and why; on what income the support was based; what, if any, financial disclosure was made by the parties to each other in arriving at that amount; and what, if any, independent legal advice either party had prior to execution of the agreement.

8The Respondent says the Appellant failed to pay support commencing September 2011 and as a result, on or about October 6, 2011, an application was filed in the Ontario Superior Court of Justice at Sault Ste. Marie. On October 29, 2012, Justice McMillan of the Superior Court of Justice raised the issue of lack of jurisdiction of the Superior Court of Justice to determine child support given that the agreement had been filed in the Ontario Court of Justice. This led to the motion to change being filed November 13, 2012, by the Respondent in the Ontario Court of Justice at Elliot Lake.

9The Appellant commenced a motion to stay the motion to change wherein he challenged the Court’s jurisdiction given that an application had been brought in the Superior Court of Justice. On June 24, 2013, Justice Villeneuve heard the motion for stay; ruled that the Ontario Court of Justice had jurisdiction; and dismissed the Appellant’s motion. On July 2, 2013, the motion to change hearing was set for November 29, 2013.

10The Appellant commenced an appeal of Justice Villeneuve’s June 24, 2013 order. That appeal was heard by Justice Varpio on November 28, 2013. Justice Varpio dismissed the appeal.

11On November 29, 2013, the parties appeared before Justice Villeneuve for the motion to change hearing. The Respondent, her counsel Mr. Kearns, the Appellant and Mr. Knox, agent for the Appellant's then counsel, Mr. Cupello, were present.

12At the start of the November 29, 2013 hearing, Mr. Knox on behalf of the Appellant requested that the hearing be adjourned for two reasons:

(1) a trial record ought to have been filed and it had not been filed by the Respondent; and

(2) the Appellant needed time to file responding materials.

13As at November 29, 2013 the Appellant had not filed a response to the motion to change and had not filed a responding affidavit to the affidavits filed by the Respondent. He had served and filed a financial statement sworn April 17, 2013. To the hearing, the Appellant had brought a financial statement that he had prepared November 27, 2013, and sworn the morning of November 29, 2013 with the assistance of Mr. Knox. A copy of this financial statement was served on the Respondent’s counsel by Mr. Knox that same morning.

14In his November 29, 2013 endorsement, a copy of which was filed on this Appeal at Tab 5 of the Respondent’s Appeal Record, Justice Villeneuve, expressed that the reason for the motion to change was that the Appellant had been paying child support well below the Guidelines. Further, on the basis that a trial had not been directed, the request for adjournment on the ground that no trial record was filed, was denied.

15On the issue of the Appellant’s desire to file materials, Justice Villeneuve expressed in his endorsement that material should have been served and filed well in advance of November 29, 2013. The date for the motion to change hearing had been set since July 2, 2013. Justice Villeneuve expressed that the Respondent's counsel [Mr. Cupello] had chosen to focus his energies on the proceedings seeking to stay the motion to change despite:

(a) the ruling of the Justice McMillan dated October 29, 2012 regarding lack of jurisdiction;

(b) his ruling dated June 24, 2013 that the Ontario Court of Justice had jurisdiction to hear the motion to change; and

(c) the ruling of Justice Varpio dated November 28, 2013 dismissing the Appellant’s appeal of his June 24, 2013 order.

16Justice Villeneuve however did find that the lack of materials put the parties and the Court in an awkward situation in attempting to adjudicate the motion to change on its merits. As a result, he granted the adjournment and ordered:

(1) On a without prejudice basis, child support payable for the support of the children Kaleigh McSheffrey, born April 15, 2004, Adrian McSheffrey, born May 10, 2006 and Vanessa McSheffrey, born September 10, 2008 shall be varied to $1,530.00 per month commencing November 1, 2013 based on yearly income of $80,000 and the Federal Child Support Guidelines.

(2) The Applicant's oral motion to seek retroactive support to August 2011 is granted.

(3) The motion to change shall be adjourned to January 13, 2014 at 9:30 a.m. for argument with January 14, 2014 at 9:00 a.m. to be a back-up date.

(4) The Respondent shall serve and file his responding material by January 8, 2014 provided he has paid to the applicant's solicitor in trust, the sum of $1,000 for costs of today's appearance and $2,000 towards support arrears accumulated to date. The payment of support arrears shall also be on a without prejudice basis to the Respondent arguing that there are no support arrears owed. The Applicant's counsel shall upon payment of these monies execute a consent to the filing of the Respondent's material.

(5) The return date set out in paragraph 3 of this order shall be peremptory on the Respondent.

17Mr. Knox, on behalf of the Appellant, expressed concern regarding this order. Given the Appellant was unemployed at the time, he may not be able to comply with such an order and the court would find itself in a position of having no materials from the Appellant on the return date.

The Hearing of the Motion to Change on January 13, 2014

18At the time of the hearing on January 13, 2014, the Appellant was representing himself. He was given permission to participate at the hearing by telephone from Saskatchewan. The Respondent and her counsel Mr. Kearns were present in the courtroom.

19The Appellant had not met the conditions of the November 29, 2013 order, namely he had not paid the $2,000.00 of arrears that had been ordered nor the $1,000.00 cost order. Accordingly he could not file any further material.

20The Respondent took the position at the hearing that the hearing was peremptory and ought to proceed without the Appellant’s materials.

21The hearing proceeded.

22The Appellant attempted numerous times to rely on his documents and information, in making his submissions on his actual income and on the issue of retroactive support (start date and amount). He was not permitted to do so.

23The Appellant advised Justice Villeneuve a number of times during the hearing that he was not able to file his information because he could not comply with the November 29, 2013 order. The reason for his non-compliance was that his unemployment had run out in mid-December and these amounts ($3,000.00) were well above his available income. He submitted his hands were tied financially. The Appellant stated that did not even have the money to file an appeal of the November 29, 2013 order.

24The Respondent suggested that the Appellant at the very least could have served his information and suggested that the Appellant had not. The Respondent suggested that she had seen nothing of his 2013 income.

25The Respondent initially asked the court to base the Appellant’s income on his 2012 income of $103,000.00. Her position then changed to a submission that she would accept the Appellant’s number of $76,607.00, but then she changed her position again, to $80,000.00.

26In reply during one of the exchanges asserting that the Appellant had not filed any materials, the Appellant questioned “what happened to the financial statement I provided November 29?” The Appellant was under the belief that this financial statement had been filed November 29, 2013. In addressing this question, it was confirmed that this statement had been sworn, that it contained 2013 income information, and that this had been in fact provided to the Respondent on November 29, 2013 despite the earlier submission that the Appellant had served nothing.

27The Respondent believed the November 29, 2013 financial statement had not been filed because of the November 29, 2013 order.

28Further, on the issue of not having filed materials, during the proceeding, Justice Villeneuve referred the Appellant to the chosen tactics of his former counsel Mr. Cupello. This came up three times. The Appellant advised Justice Villeneuve that he had “taken care of his former counsel for making those kinds of errors without notifying him of the consequences”. Later he says “It is unfortunate that my lawyer did not submit anything else”.

Appellant’s Position

29The Appellant does not object to child support being set in accordance with the Guidelines. He objects to:

(a) the amount set for his income for 2013; and

(b) the retroactive award: commencement date and amount.

30As to his income, the Appellant states that the amount fixed by Justice Villeneuve for his income for 2013 was wrong. He states that Justice Villeneuve did not take the change in his employment from mining to construction into consideration. He states that Justice Villeneuve failed to consider the financial statement that he believed was provided to the Court November 29, 2013. He says that this financial statement was sworn November 29, 2013 prior to Court and a copy provided to the Respondent’s counsel. He says that it ought to have been filed in the Court record that day. He says that since it was referred to and used prior to the making of Justice Villeneuve’s order of that same date, it was not subject to his November 29, 2013. He claims Justice Villeneuve ought to have accepted his evidence of his current income, and did not acknowledge his hands were tied in complying with the November 29, 2013 order.

31As to retroactivity, the Appellant states that he and the Respondent had an agreement that was binding, that he honoured and followed, and that Justice Villeneuve failed to consider this. He claims he did not have notice of retroactive support being claimed until January 13, 2013 and it should have only been awarded back to the date he had effective notice. Also the Appellant states that in determining retroactivity, Justice Villeneuve failed to consider the hardship that was created and hindrance to his ability to make regular support payments; to consider his access costs; to consider the clothing and other items he paid for over the monetary amount he gave to the Respondent; and to consider the RESP payments ($1,137.24 per year and the health benefits premiums he paid ($1,507.52 per year) on behalf of the children as support for them under the agreement. For clarity, his understanding was that the support the parties agreed to was made up of the monetary amount plus the payment of these two items ($250.00 each pay week plus $94.77 and $226.00 to $125.00 per month). He claims Justice Villeneuve ought to have accepted his evidence of what he paid; and considered undue hardship. Again, he claimed his hands were tied in filing material due to the November 29, 2013 order and his lack of funds to be able to comply with it.

Respondent’s Position

32On this issue of income, the Respondent states that Justice Villeneuve did not err. In her factum she suggested that the Appellant himself suggested his income was $80,000.00 (and relied on the November 29th, 2013 transcript). In addition, the Respondent stated that it was clear that the amount being advanced by the Appellant for 2013 was $76,000.00 to the end of November 2013.

33On the issue of retroactivity, the Respondent states that it was not outside Justice Villeneuve’s discretion to order support retroactive to August 1, 2011, and the amounts determined were correct.

34The Respondent stated that the motion was a motion to change under Rule 15 of the Family Law Rules (“Rules”). As such, the motion was to be determined on affidavit evidence unless otherwise ordered. The Respondent asserted that the Appellant had not filed any affidavit material and no updated financial statement for the hearing. The Respondent stated that the Appellant failed to comply with Justice Villeneuve’s November 29, 2013 order and did not personally appear at the hearing January 13, 2014.

35The Respondent at the appeal submitted that if Justice Villeneuve had made an error/or errors that the decision was not clearly wrong and should not be interfered with.

THE LAW

Standard of Appellate Review

36In Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 (SCC) at paras. 11 and 12, L'Heureux-Dubé J. writes:

11Appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong.

12There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently.

Adequacy of Reasons

37The requirement that a judge give reasons for decision is clear. It is an inherent aspect of the discharge of a judge’s responsibilities: R. v. Sheppard 2002 SCC 26.

38The need for reasons in the family law context was affirmed by the Court of Appeal in Young v. Young 2003 ONCA 3320 ().

39In Titova v. Titov, 2012 ONCA 864, Rouleau J.A., writing for the court stated at paragraph 31:

31The adequacy of reasons is determined on a functional basis. The reviewing court should consider whether the reasons are sufficient given three main rationales: public confidence in the administration of justice, the importance of telling the losing party the reasons for having lost, and making the right of appeal meaningful.

40In Bodnar v. Blackman 2006 ONCA 31803 () at paragraphs 21 and 22 Justice Gillese emphasized that appellate courts must not place an impossible burden requiring perfect reasons. The reasons must be adequate.

Variation of Support

41Section 35(2)(b) of the Family Law Act provides that a provision for support contained in a contract that is filed pursuant to section 35(1) may be varied under section 37 as if it were an order of the court where it is filed.

Contracts Subject to Child Support Guidelines

42Section 56(1.1) of the Family Law Act, sets out that in the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter where the provision is unreasonable having regard to the Guidelines, as well as to any other provisions relating to support of the child in the contract.

Determination of Income

43Section 2 of the Guidelines defines income as the annual income determined under sections 15 to 20. Section 15 of the Guidelines sets out that income is determined in accordance with sections 16 to 20. Section 16 of the Guidelines sets out that subject to sections 17 to 20, annual income is determined using the sources of income set out under the heading “Total Income” in the T1 General from issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III. Section 17 sets out that if using section 16 would not be the fairest determination, the court may have regard to the income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. Section 19 permits the court to impute such amount of income as it considers appropriate in the circumstances which includes circumstances where a parent has failed to provide income information when under a legal obligation to do so.

Retroactive Support

44In S. (D.B.) v. G. (S.R.) 2006 SCC 37, Bastarache J. writing for the majority of the Supreme Court of Canada wrote:

78In most circumstances, however, agreements reached by the parents should be given considerable weight. In so doing, courts should recognize that these agreements were likely considered holistically by the parents, such that a smaller amount of child support may be explained by a larger amount of spousal support for the custodial parent. Therefore, it is often unwise for courts to disrupt the equilibrium achieved by parents. However, as is the case with court orders, where circumstances have changed (or were never as they first appeared) and the actual support obligations of the payor parent have not been met, courts may order a retroactive award so long as the applicable statutory regime permits it.

95It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one's children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed.

96Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted. Prospective and retroactive awards are thus very different in this regard. Prospective awards serve to define a new and predictable status quo; retroactive awards serve to supplant it.

131Child support has long been recognized as a crucial obligation that parents owe to their children. Based on this strong foundation, contemporary statutory schemes and jurisprudence have confirmed the legal responsibility of parents to support their children in a way that is commensurate to their income. Combined with an evolving child support paradigm that moves away from a need-based approach, a child's right to increased support payments given a parental rise in income can be deduced.

132In the context of retroactive support, this means that a parent will not have fulfilled his/her obligation to his/her children if (s)he does not increase child support payments when his/her income increases significantly. Thus, previous enunciations of the payor parent's obligations may cease to apply as the circumstances that underlay them continue to change. Once parents are in front of a court with jurisdiction over their dispute, that court will generally have the power to order a retroactive award that enforces the unfulfilled obligations that have accrued over time.

133In determining whether to make a retroactive award, a court will need to look at all the relevant circumstances of the case in front of it. The payor parent's interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, a court should consider whether the recipient parent has supplied a reasonable excuse for his/her delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail.

134Once a court decides to make a retroactive award, it should generally make the award retroactive to the date when effective notice was given to the payor parent. But where the payor parent engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive start date of the award. It will then remain for the court to determine the quantum of the retroactive award consistent with the statutory scheme under which it is operating.

135The question of retroactive child support awards is a challenging one because it only arises when at least one parent has paid insufficient attention to the payments his/her child was owed. Courts must strive to resolve such situations in the fairest way possible, with utmost sensitivity to the situation at hand. But there is unfortunately little that can be done to remedy the fact that the child in question did not receive the support payments (s)he was due at the time when (s)he was entitled to them. Thus, while retroactive child support awards should be available to help correct these situations when they occur, the true responsibility of parents is to ensure that the situation never reaches a point when a retroactive award is needed.

The Determination of the Appellant’s Income

45Justice Villeneuve fixed the Appellant’s income at $80,000.00.

46In my view, it can be inferred that he imputed this income based on section 19 of the Guidelines. It was open to him to do so. Given the facts of this case, he could have also set income pursuant to section 17 of the Guidelines.

47However, in imputing income, in his reasons he says “Given that no financial information is filed the Respondent’s income for 2013 shall be fixed at $80,000.”

48Justice Villeneuve erred when he stated that no income information had been filed by the Appellant. The Appellant had filed a financial statement sworn April 17, 2013. This financial statement was part of the Continuing Record. It was served on the Respondent April 18, 2013. The copy in the appeal record displays the Ontario Court of Justice Elliot Lake date stamp indicating this financial statement was filed on April 19, 2013. Attached to this financial statement were: Canada Revenue Agency Notices of Assessment for 2010, 2011 and 2012; and a paystub for the period ending March 30, 2013 (for the job that he was laid off from on August 24, 2013). In addition, within the statement, the Appellant swore that his estimate of income for 2013 was going to be $86,722.00. There was no explanation in either the transcript or the reasons as to why this document was not considered.

49Justice Villeneuve also stated in his reasons the following: “Even today, Mr. McSheffrey has not even served a sworn financial statement or provided proof of income.” This too was not correct. In addition to the April 17, 2013 financial statement, the Appellant had served a financial statement, the November 29, 2013 financial statement. In fact, the Appellant was under the belief that his November 29, 2013 financial statement had been filed on November 29, 2013. In addressing this at the hearing, it was confirmed that this statement had been sworn, that it contained 2013 income information, and that this had been in fact served on the Respondent on November 29, 2013 despite the earlier submission that the Appellant had served nothing. A review of the November 29, 2013 transcript confirms the foregoing.

50The following items were attached to the Appellant’s financial statement sworn November 29, 2013:

(a) a Service Canada Record of Employment in respect of the Appellant's employment with 101204754 Saskatchewan Ltd. which showed: first day of work as September 11, 2013; last day as November 15, 2013; an expected date of recall to work of January 5, 2014 for the occupation of Driver; and insurable Earnings of $14,995.84;

(b) a Service Canada Record of Employment (“ROE”) in respect of the Appellant's employment with Forage Boreal Inc. which showed: first day of work as January 4, 2010, and last day as August 24, 2013; an expected date of recall to work as being unknown for the occupation of Foreman; and insurable Earnings of $50,721.51; and

(c) a copy of the Appellant's pay-stub regarding his employment with Forage Boreal for the period ending August 24, 2013, showing year to date income of $53,849.56.

51The November 29, 2013 financial statement showed the Appellant as being unemployed and in receipt of EI of $1,704.00 ($852 biweekly) per month. He became unemployed looking at the last ROE in 2013, on November 15, 2013.

52There was no contest that the Appellant had been laid off from his employment with Forage Boreal on August 24, 2013.

53Justice Villeneuve did not state in his reasons the evidentiary basis on which the $80,000.00 was arrived. In my respectful view, this should have been articulated when imputing income. Other than notations related to lack of materials filed, the only other articulated preface to the fixing of the income was the following notation: “During the hearing, the Applicant agreed to fixing the Respondent’s income at $80,000 as set out in the November 29, 2013”.

54On reviewing the January 13, 2014 transcript, the Respondent’s submission to the court to fix the 2013 income at $80,000.00 was based on the income fixed by the Court in the interim order of November 29, 2013.

55Looking at the November 29, 2013 endorsement, Justice Villeneuve set out that this amount was arrived at from information provided by the Appellant on November 29, 2013. In his endorsement Justice Villeneuve sets out that the $80,000.00 income amount is set on a without prejudice basis and is subject to proof being filed.

56On review of the transcript filed for November 29, 2013, it appears that Justice Villeneuve accepted the submissions of the Appellant as to his income, but added an additional amount for expected receipt of E.I.

57Accordingly, it appears that the information forming the basis of the income used for the interim order never formed part of the evidentiary record and was never proved. The Appellant had not suggested his income was $80,000.00 for 2013.

The Determination of the Retroactivity Commencement Date

58Justice Villeneuve fixed arrears of child support retroactive to August 1, 2011. Justice Villeneuve does not say specifically why he selected August 1, 2011 as the retroactivity commencement date.

59Justice Villeneuve did not refer to the commencement date considerations set out by S. (D.B.) v. G. (S.R.), supra:

Once a court decides to make a retroactive award, it should generally make the award retroactive to the date when effective notice was given to the payor parent. But where the payor parent engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive start date of the award. It will then remain for the court to determine the quantum of the retroactive award consistent with the statutory scheme under which it is operating.

60Justice Villeneuve did not refer to any blameworthy conduct specifically.

61In S. (D.B.) v. G. (S.R.), supra, Bastarache J. states:

107No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct: see A. (J.) v. A. (P.) (1997), 1997 12394 (ON SC), 37 R.F.L. (4th) 197 (Ont. Gen. Div.), at pp. 208-9; Chrintz.

108On the other hand, a payor parent who does not increase support payments automatically is not necessarily engaging in blameworthy behaviour. Whether a payor parent is engaging in blameworthy conduct is a subjective question. But I would not deny that objective indicators remain helpful in determining whether a payor parent is blameworthy. For instance, the existence of a reasonably held belief that (s)he is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging in blameworthy conduct. In this context, a court could compare how much the payor parent should have been paying and how much (s)he actually did pay; generally, the closer the two amounts, the more reasonable the payor parent's belief that his/her obligations were being met. Equally, where applicable, a court should consider the previous court order or agreement that the payor parent was following. Because the order (and, usually, the agreement) is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order. However, this presumption may be rebutted where a change in circumstances is shown to be sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay.

62Looking at the transcript of the hearing, there is an expression of the view that the Appellant had a support holiday and was paying less than half the amount that the Guidelines called for. I can’t make an inference that this reference was intended to suggest blameworthy conduct. The issues of how and why this contract came about and other things the Appellant paid would have applied to this analysis, in my view. The Appellant attempted to make submissions on his belief that he met his obligations. This was not analyzed.

63The reasons for decision do not speak to effective notice of the support claim. The appeal record contains a list of steps in the proceeding. The Appellant was served with an application in the Superior Court of Justice on or before October 2, 2011, but that affidavit of service was not provided. The Respondent’s two affidavits did not mention any further particulars on this point.

64There was no analysis of the children’s present circumstances.

65On reading the transcript from January 13, 2014 Justice Villeneuve it seems was of the view that the children were entitled to Guideline amount from the date of separation simply as a given. He stated at page 18 line 4 of the transcript: “…[T]he kids are entitled to guideline amount. That’s the way it works.”

66Further, while it may be reasonably inferred from his comments that he was applying Section 56(1.1) of the Family Law Act, when he says at page 17 line 9: “Well the legislation says that the children shouldn’t have to suffer for the agreement of the parents when…”, section 56(1.1) of the Family Law Act sets out that in the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter where the provision is unreasonable having regard to the Guidelines, as well as to any other provisions relating to support of the child in the contract.

67The difficulty I have, again, is that it appears that Justice Villeneuve did not consider the arguments of the Appellant regarding the making of the contract as having any application, and/or did no analysis on the making of the contract and the reasonableness of it. On review of the appeal record, the Respondent herself did not have evidence filed as to how this contract was arrived at or how the figures were arrived at or why it was not reasonable at the time. The Respondent in her affidavit of July 19, 2013 simply states "the Respondent [Appellant] is grossly underpaying his support for the children" and "there is no reference in the agreement to the husband's income". The Appellant’s attempt to make submissions was met by “failure to file materials”.

68Lack, J. in Spencer v. Irvine 1999 14977 (ON SC), 1999 CarswellOnt 1365, [1999] O.J. No. 1493, 45 R.F.L. (4th) 434, 87 A.C.W.S. (3d) 1151 (OSCJ) at paragraph 7 stated:

In my view it is not sufficient for the court to conclude that a provision is inadequate "on the face" on no other basis than the existence of the child support guidelines. There must be a consideration by the court of whether the support provision meets or fails to meet the needs of the child having regard to any other relevant provisions in the agreement. Where, as in this case, the agreement makes provision for a transfer of property or other financial benefit which purports to meet the needs of the child, in whole or in part, that provision must be considered and assessed before a determination to disregard should be made. It is only after a determination is made under section 56(1.1) that the provision falls short of meeting the needs of the child that section 33(11) and 33(12) come into play. Then the onus shifts to the respondent.

69Accordingly, the lack of materials in my view does not negate the analysis or the evidentiary burden of the Respondent.

The Determination of the Retroactive Amount

70On the retroactive amounts, the reasons have no explanation regarding the application of, or any reference to the caution or factors set out by S. (D.B.) v. G. (S.R.), supra:

In determining whether to make a retroactive award, a court will need to look at all the relevant circumstances of the case in front of it. The payor parent's interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, a court should consider whether the recipient parent has supplied a reasonable excuse for his/her delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail.

71Looking at the retroactive amounts, it appears clear that Justice Villeneuve accepted the figures presented by the Respondent. The amounts were based on the applicable table amount, less only the monetary amount that she says the Appellant paid her pursuant to paragraph 4 of the agreement (the $250.00 payments). The Respondent had a table of payments set out in her affidavit.

72The Appellant disputed the record of the $250.00 payments that he made as set out by the Respondent. The court drew to his attention to the fact that he had no materials filed.

73The Appellant made submissions concerning other amounts he had incurred and or expended for the support of the children. He made submissions regarding the fact that an agreement was made and how he followed it. He raised the issue that the support set out in the agreement was not related to his income; he took possession of the home and debt. He had access costs when the Respondent moved to Elliot Lake. For the children, he paid for clothing and activities over and above what the agreement required. He was met with rejection of his information, again on the basis of “no materials file”.

74The Appellant, as discussed above, had filed a financial statement sworn April 17, 2013. Within that financial statement he set out expenses he was incurring and paying on behalf of the children. The Appellant's April 17, 2013 financial statement indicated payment of: health insurance premiums of $226.00 per month; RESP contributions of $94.00 per month; transportation costs of $1,343.00 per month; clothing expenditures for children in the amount of $80.00 per month; and children's activities expenditures of $30.00 per month.

75The court had a copy of the agreement. The agreement referred to the other amounts the Appellant asserted he paid as part of support. It was attached to the Change Information Form dated November 13, 2012, which was filed in the Continuing Record.

76Neither the support clause, nor the agreement itself on its face indicated how the quantum of support was arrived at and why; on what income the support was based. The Respondent had no evidence on any of these issues before the court in her affidavits. She allegedly prepared the agreement.

Failure to Consider the Appellant’s Information

77The Appellant complains that Justice Villeneuve did not accept his information and submissions on the issues and that he ought to have. He says that throughout the hearing Justice Villeneuve would not consider his information and submissions on the basis of materials not being filed. He stated to this court that his hands were tied in complying with the November 29, 2013 order and that he tried to explain this to Justice Villeneuve.

78His claims translate to that he was essentially prohibited from fairly and effectively participating in the hearing.

79Justice Villeneuve proceeded with the hearing in accordance with his November 29, 2013 order.

80If the appearance of fairness has been undermined, a decision cannot stand on any standard: Shoppers Mortgage & Loan Corp. v. Health First Wellington Square Ltd., 1995 1069 (ON CA), 23 O.R. (3d) 362, [1995] O.J. No. 1268 (Ont. C.A.).

81Rule 2(3) of the Family Law Rules provides that dealing with cases justly includes ensuring that the procedure is fair to all parties. Rule 2(4) and (5) place a duty on the Court to promote the primary objective, namely to enable the court to deal with cases justly including procedural fairness.

82In my view, there were at least four distinct challenges in this case: an unsophisticated self-represented party; a self-represented party participating by telephone; a lack of materials filed by that self-represented party due to an Order made by the hearing judge (that the self-represented party had not complied with) and which Order made the return date peremptory on the Appellant; and the delay that had already arisen in dealing with this matter due to intervening proceedings prompted by the self-represented party.

83In Davids v. Davids, (1999), 1999 9289 (ON CA), 125 O.A.C. 375 (Ont. C.A.) at para. 36, the court stated:

Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer’s familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case. In doing so, the trial judge must, of course, respect the rights of the other party.

84Leeway is allowed for a self-represented party, especially as it relates to procedural matters: Cicciarella v. Cicciarella, 2009 CarswellOnt 3972 (Div.Ct) referring to A. (J.M.) v. Winnipeg Child & Family Services, 247 D.L.R. (4th) 490, 2004 MBCA 184 (Man. C.A.).

85I find, in reviewing the matter as a whole, to the detriment of the Appellant, the judge erred in the exercise of his discretion and duties within the above-mentioned accepted legal principles.

86In reviewing the transcript, it appears that very little to no leeway was allowed for the fact that the Appellant was now self-represented and unsophisticated to a degree that would invite leeway. Additionally, in my view, specifically, the manner in which the issue of determining the Appellant’s income was addressed on pages 7 to 9 of the transcript was not preferable for the appearance of fairness.

87On reading the transcript, and the statements the Appellant made throughout, I am of the view that the Appellant was a self-represented person without significant sophistication as to the process, having only represented himself for a short time (at best a month and a half on the date of the hearing). Further, in my view it seems clear that he was under an honest but mistaken belief his November 29, 2013 financial statement had been filed.

88On the dilemma that Justice Villeneuve was faced with regarding his November 29, 2013 order, in addition to Rule 2 set out above, Rule 1(8) of the Family Law Rules provides that if a person fails to obey an order in a case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter.

89While I was not there and did not hear the tone of the proceeding, on my review of the transcript, it did not seem as though the Appellant was presenting himself at the January 13, 2014 hearing as a litigant who was wishing to delay the hearing of the matter. He personally attended the November 29, 2013 hearing date from Saskatchewan. He came with a financial statement and supporting documentation.

90Justice Villeneuve made his poor regard for the focus and decisions of the Appellant’s previous counsel very clear, and more than once. That being said, on review of the transcript, it appears that former counsel’s focus and decisions were visited on the Appellant. It is my view that this was not justified in this case. His statements to the Court on what he understood his former counsel was doing, in my view, made it a live issue that the Appellant did not appreciate his former counsel’s actions and the consequences.

91It is my view that it would have been in the interests of justice, and for a just determination of this matter, to excuse the Appellant from his non-compliance with the November 29, 2013 order given the reasons he gave for same, and to set a consequence if the court felt one was justified. It would have been in the interests of justice, and for a just determination of this matter, to give the Appellant further time to file materials. These proposed actions could have been undertaken in a manner as not to breach either the appearance or reality of judicial neutrality, or disrespect the rights of the Respondent. While I appreciate the matter had been long standing and delay was a concern, an interim without prejudice order was in place on the date of the hearing. Strict directions on the filing of materials could have been put in place. There was no indication that the Appellant did not have his information readily available. In fact, he had a significant amount of it attached to his November 29, 2013 financial statement. The Appellant could have been ordered to attend as motivation to ensure the matter would proceed. An expedited hearing could have been considered. Again, a further adjournment could have been addressed by a cost award adjourned to the conclusion of the ultimate hearing.

CONCLUSION

92I conclude that there were sufficient errors made in the conduct of this hearing that require that the matter be reheard. Cumulatively, the errors are palpable and overriding, and in my view, based on the principles of fairness, a new hearing is required.

93I am aware that this matter has been before the courts for a number of years and that it is in the parties’ interests to have this matter resolved. I recognize that pending the evidence filed and to be filed, that some of the amounts in dispute, and in particular, the Appellant’s income may be modestly adjusted. I further recognize that it is open to the Appellant to bring a motion to change to have the issue of his income revisited on the basis of section 37(2.1) of the Family Law Act. That being said, unfortunately, the problems with the record do not make it possible for me to substitute my decision for that of the hearing judge, and pursuant to Rule 2 of the Family Law Rules, it makes sense for all of the issues to return for rehearing.

ORDER

94The appeal is granted. The Order of Justice Villeneuve dated January 13, 2014 is set aside. The matter is remitted or a hearing, to be heard by another judge.

95I strongly urge the parties to attend a case conference to ensure that the relevant documentation is prepared and filed when this matter proceeds to hearing, as the Order of Justice Villeneuve dated November 29, 2013 is still outstanding.

Rasaiah J.

Released: October 16, 2015