ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY LAW APPEAL

COURT FILE NO.: FS-15-0005-00
DATE: 2015-11-16

B E T W E E N:

Leslene Downs

Vershone C. Herd, for the Applicant/Respondent

Applicant/Respondent

• and -

Wayne Rogers

Leroy A. Crosse, for the Respondent/Appellant

Respondent/Appellant

HEARD: October 5, 2015

REASONS FOR JUDGMENT

Appeal of Final Orders of Madam Justice L. S. Parent dated September 30, and October 31, 2014

Fragomeni, J.

1Mr. Rogers is the father of two children born of his relationship with the respondent, namely T who is 27 years of age, and L who is 22 years of age.

2Mr. Rogers appeals from the following decisions of The Honourable Madam Justice L.S. Parent, of the Ontario Court of Justice at Brampton, Ontario:

September 30, 2014 - terminating Mr. Roger’s support obligations for T as of April 30, 2010, and for L as of December 31, 2010.

October 31, 2014 - giving credit for support of $12,000 to the father.

Overview

3In October 2012, as a result of enforcement efforts by the Family Responsibility Office, Mr. Rogers brought a motion to change the final order of Mr. Justice B. Pugsley, dated May 15, 2003, with respect to child support.

4At the time Mr. Rogers filed the Motion to Change he was in arrears of child support in the amount of $32,786.70 as of July 10, 2012.

5In her Reasons for Judgment released on September 30, 2014, Justice Parent identified the two issues she had to determine as follows:

1. The date of termination of the father’s child support obligation.

2. Whether or not credit should be given to the father towards any child support arrears.

6The issues on appeal, as identified by the father, are whether the learned justice ought to have specified the amount of arrears, if any, and the basis for the credits to the father in reducing the arrears.

Reasons of September 30, 2014

7In order to assess these two issues on appeal it is important to review in detail the reasons provided by Justice Parent on September 30, 2014.

8Justice Parent first sets out the background that gave rise to the father’s Motion to Change.

9The parties lived together in a common-law relationship. At the time of the hearing, T was twenty-six (26) years of age and L was twenty-one (21) years of age.

10On May 15, 2003, Justice Pugsley granted a final order which incorporated the terms of Minutes of Settlement reached by the parties. This order mirrored the child support obligation as determined by Justice Karswick on a temporary basis by order dated February 10, 2003.

11The order of Justice Pugsley dated May 15, 2003 required Mr. Rogers to pay child support to Ms. Downs for both children, in the amount of $700.00 per month commencing March 1, 2003. This amount was in accordance with the Child Support Guidelines (herein after referred to as the “Guidelines”) based on Mr. Roger’s income of $50,000.00 per year as accepted by Ms. Downs.

12The order further provided that arrears of support, which encompassed both spousal and child support, were fixed at $3,600.00 and payable at the rate of $300.00 per month commencing March 1, 2003. The order also terminated the spousal support obligation effective February 10, 2003.

13Justice Pugsley’s order did not incorporate a termination clause regarding Mr. Rogers’ child support obligation.

14At the hearing before her, Justice Parent identified the issues at paragraph 10 of her September 30, 2014 reasons as follows:

The Motion to Change seeks an order terminating support for the two children of the relationship effective January 1st, 2008. The Motion to Change also seeks an order crediting towards any arrears of support owed by the Respondent, monies paid directly by the Respondent to his daughter and to a reciprocal enforcement agency. Although not plead, the Respondent also sought at the hearing a credit for twenty-one months his son resided primarily with him.

15The mother’s position at the hearing before Justice Parent was that the termination date should be January 1, 2011. The mother also disputed the father’s claim that he be given credit for any funds paid directly to T. The mother also asked for an order fixing arrears at $18,086.70.

16On consent of counsel, the evidence was limited to each party’s testimony. No other witnesses were called on behalf of either party. Justice Parent reviewed the father’s evidence at paragraphs 16 to 28 of her reasons and she reviewed the mother’s evidence at paragraphs 29 to 41.

17Justice Parent’s analysis of the issues commences at paragraph 42. I will set out portions of the reasons she gave on each issue.

Issue #1: When did the termination date occur?

Re: T

18Justice Parent notes that the parties’ evidence supports a determination that T moved to Ottawa during the month of August 2006 to begin her post-secondary education effective September 1, 2006. The parties agreed that T had remained in Ottawa since that time. After reviewing the relevant legislation and case law on the issue relating to the definition of a dependent child, Justice Parent sets out the following in paragraphs 55 and 56:

55I find that T continued to be a child entitled to child support even though she continued her studies sporadically for the period commencing January 1st, 2008 to sometime in 2010. Although neither party provided any evidence of the number of courses taken by T during these years, her status as either a part-time or full-time student, whether she continued her studies during the summer months or the precise date of her withdrawal from post-secondary studies, the evidence is clear that she continued her studies to the best of her ability as she was self-funding her education primarily through a student loan and income through employment.

56The evidence is unclear as to the precise date in 2010 T withdrew from her studies completely. Given the absence of evidence, I am of the view that a termination date of the [Respondent’s] child support for T should be April 30th, 2010. Child support is for the benefit of the child. Absent clear evidence of a precise date in 2010 when T withdrew completely from post-secondary studies, I am of the view that April 30th, 2010, namely at the end of the second semester in 2010 is a fair determination of a date which is in keeping with her best interests and is supportive of the evidence that she continued some studies in 2010 and therefore remained a child entitled to support until that date.

Re: L

19Justice Parent accepted the father’s evidence that L resided with him for the period dated August 31, 2006, to sometime in June 2008. There was no dispute between the parties that L returned to live with his mother from 2008 to sometime in December 2010. Justice Parent accepted the mother’s evidence that L’s return occurred sometime in June 2008. At the hearing before Justice Parent, the mother acknowledged in her testimony that the father should not have been paying her child support for L during the time L resided with him. At paragraphs 59 and 60 Justice Parent sets out the following:

59The Respondent did not request in his Motion to Change any relief other than a termination date for his child support to be January 1st, 2008. It is only during his testimony that he sought a credit of $14,700.00 he claims should be given to him during the period his son resided in his care.

60I find that the more appropriate relief to be granted is that the Respondent’s child support obligation for L, for the period between September 1st, 2006 to June 30th, 2008, be suspended. A suspension of child support is appropriate given that the evidence is clear that L returned to the primary care of the Applicant sometime in June, 2008 and continued to reside with her until sometime in December, 2010. The Respondent’s child support obligation therefore should only be terminated effective December 31st, 2010.

Issue #2: Should a credit towards any arrears of support be given to the father?

20At the hearing before Justice Parent, the father requested a credit towards any child support arrears in the amount of $39,347.12. This amount represents $21,070.00 U.S. funds converted to Canadians funds plus $14,700.00 for the time L was in his care for 21 months. Justice Parent outlined the contradictory nature of the evidence of the parties at paragraphs 62 to 64 of her reasons. After this review, Justice Parent sets out the following at paragraphs 67 and 68 of her reasons:

67Neither party provided any evidence as to calculations as to their respective clients’ potential proportionate share towards T post-secondary education costs. Neither party provided any evidence as to precise amounts that T contributed to her own post-secondary education costs.

68Absent this evidence it is impossible to determine whether or not the monies paid by the Respondent, in the amount he claims or in the amount acknowledged by the Applicant, were sufficient to meet both his ongoing child support obligation and or his contribution to her post-secondary education.

21Justice Parent states that the father’s calculation of the credit of $14,700.00 is based on the assumption that no child support would be owed to the mother for this 21 month period given that L was in his care and that T was attending post-secondary studies. The mother disputed that position on the basis that the calculations should be based on an application of s. 9 of the Guidelines, namely, that a split custodial arrangement existed with each parent having one child. The mother, however, provided no calculations on the s. 9 analysis.

22Justice Parent’s conclusion is set out at paragraph 78 as follows:

78The result of these uncertainties is such that the evidence does not support the granting of the credit as presented by the Respondent or the arrears as claimed by the Applicant.

23Justice Parent was not prepared to make a final order on the issue of arrears or the amount of the credit so she adjourned the issue to allow counsel to consider her order regarding the termination dates of child support and her comments regarding the issue of arrears to determine if a settlement could be reached by the parties.

24Justice Parent’s September 30, 2014 order, therefore, was as follows:

The order of Pugsley, J dated May 15th, 2003 is hereby varied as follows:

1. The Respondent’s child support obligation regarding T, born March 31st, 1988 shall terminate as of April 30th, 2010;

2. The Respondent’s child support obligation regarding L, born December 27th, 1992 shall terminate as of December 31st, 2010;

3. A Support Deduction Order will issue; and

4. The issue of the determination of arrears of child support is adjourned to October 30th, 2014 at 10:00 a.m. Courtroom #208 to be spoken to.

Reasons of October 31, 2014

25Justice Parent reviewed what had transpired at the August 29, 2014, hearing and what she had decided as set out in her September 30, 2014, reasons. Justice Parent again reiterated that the absence of clear and un-contradicted evidence by the parties made the determination of arrears difficult. In her October 31, 2014, reasons Justice Parent sets out the following:

The evidence establishes that a credit would be owed to the Respondent when L was in his care. However neither party sought to vary the existing order so as to determine what amount should be suspended based on the Respondent’s income and in accordance to the Child Support Guidelines for one child during this period. The evidence does not satisfy me that a suspension of the existing order requiring the Respondent to pay $700.00 per month should have occurred for twenty-one months (21) as claimed by the Respondent given my finding that T continued to be entitled to child support during this period. Furthermore, there was an absence of evidence by the Applicant as to what amount of child support should have been suspended given submissions by her counsel that a split custody arrangement was in existence during this period.

Neither party lead any evidence or made submissions as to what contributions they each should have made towards T’s post-secondary education costs. There was also an absence of any evidence and submissions as to what, if any, contributions T made or ought to have made towards these costs. I am also not satisfied that the evidence supports a finding that the direct payments made by the Respondent to T, whether in the amount claimed by the Respondent or acknowledged by the Applicant, should be credited in full. The evidence does not satisfy me that the parties agreed that these payments would be in lieu of child support payments as claimed by the Respondent. My decision found that T was entitled to child support from September 1st, 2006 to April 30th, 2010. Given this determination, both parties would have been required to contribute to T’s post-secondary education costs and ongoing child support perhaps at an amount lower than under the current order.

For these reasons a credit of $12,000.00 is ordered to be given to the Respondent. This amount is reasonable given the parties’ respective positions regarding this issue at trial and in consideration of the evidence provided by them.

Legal Authorities

26In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, the court dealt with the standard of appellate review as it relates to findings of fact at paragraph 20 as follows:

It is by now well established that findings of fact made at trial based on the credibility of witnesses are not to be reversed on appeal unless it is established that the trial judge made some palpable and overriding error which affected his assessment of the facts . . . . Even where a finding of fact is not contingent upon credibility, this Court has maintained a non-interventionist approach to the review of trial court findings. . . .

And even in those cases where a finding of fact is neither inextricably linked to the credibility of the testifying witness nor based on a misapprehension of the evidence, the rule remains that appellate review should be limited to those instances where a manifest error has been made. Hence, in Schreiber Brothers Ltd. v. Currie Products Ltd., 1980 11 (SCC), [1980] 2 S.C.R. 78, this Court refused to overturn a trial judge’s finding that certain goods were defective, stating at pp. 84-85 that it is wrong for an appellate court to set aside a trial judgment where the only point at issue is the interpretation of the evidence as a whole (citing Métivier v. Cadorette, 1975 2 (SCC), [1977] 1 S.C.R. 371).

27In Waxman v. Waxman, 2004 39040 (ON CA), [2004] O.J. No. 1765 (C.A.), the court set out the following at paragraphs 296 and 297:

296The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear: Housen at 246. Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

297An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, 1996 217 (SCC), [1996] 1 S.C.R. 254 at 281.

Analysis

28Justice Parent identified the difficulties she had with the evidence and in no uncertain terms set out how those deficiencies affected her analysis and determination of the issues before her. I am not satisfied that she erred in any way in determining the issues in light of the evidentiary record she had before her. It was open and available to Justice Parent to deal with each of the issues as she did recognizing the state of the evidentiary record before her.

29It is not the role of this court on appeal to re-try this case. Justice Parent dealt with the issues before her on the evidentiary record presented by the parties. I am satisfied that it was open to her to make the findings she did and in doing so she did not commit palpable and overriding error. The appellant is, in essence, asking the appellate court to analyze the evidentiary record before Justice Parent differently and that is not the function of the appellate court.

Disposition

30The appeal is hereby dismissed.

31The parties shall file written submissions on costs within ten days.

Fragomeni, J.