Douglas v. Faucher, 2015 ONSC 955
COURT FILE NO.: FC-13-1861
DATE: 20150211
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dianne Pearl Douglas, Applicant
AND
Rene Albert Faucher, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Cecil J. Lyon, Counsel for the Applicant
Jack Pantalone, Counsel for the Respondent
HEARD: November 13, 2014
ENDORSEMENT
[1] The applicant seeks leave to appeal the decision of Justice James dated July 14, 2014, wherein he dismissed her motion for “retroactive child support” and directed that if the respondent’s parenting time is less than 40 percent he shall pay child support based on the Federal Child Support Guidelines and if greater than 40 percent, s. 9 of the CSG shall apply.
[2] Extension of the time in which to seek leave to appeal is granted. The applicant formed the intention to appeal in a timely way, failing to seek leave through counsel’s inadvertence. An extension of time was sought (contrary to my initial understanding). There is no actual prejudice to the respondent. The justice of the case favours granting the extension because the issue concerns the right of children to child support pending trial.
[3] For the purpose of this motion, the period from the issuance of the application to the date of the order may usefully be divided into two parts. The first period may be considered to be from August 1, 2013 up to the hearing of the child support motion in early July, 2014. During this time a previous order of James J. in relation to parenting time was in effect. He had ordered temporary joint custody and that the parenting time should be divided approximately 60 percent to the applicant and 40 percent to the respondent.
[4] The second period of time commenced just prior to the July 2014 child support motion. A custody/access assessment which had the effect of changing the parenting arrangements was implemented at that time, on consent.
[5] The reasons given by James J. for not awarding any child support to the applicant for the first period are set out in paragraphs [8],[ 9], [10] and [11] of the Endorsement:
[8] In September 2013, I made a temporary order for joint custody and an “approximate 60-40 split” in parenting time. The parties were unable to agree on a parenting schedule and, as directed, they each submitted a proposed schedule for my consideration. In the letter covering the delivery of the applicant’s proposed schedule, counsel for the applicant indicated that the respondent’s parenting time under the schedule would amount to 39.8%.
[9] I found the applicant’s schedule to be preferable but I added a provision that professional development days falling on a Friday of a weekend that the respondent had care of the children would be allocated to the respondent. This provision was added in belief that it would increase the respondent’s parenting time to over 40% although the endorsement does not specifically say so.
[10] I am now advised by counsel for the applicant that the actual parenting time of the respondent, based on the schedule, was 34%. I find this surprising as this figure was apparently generated using the same software that the applicant’s counsel relied on to represent that the ratio of parenting time under applicant’s proposed schedule was 40.2% to 39.8%. I note that there is not a single, universally-accepted method of calculating shared parenting time. Different methods generate different results.
[11] I am not prepared at this time to make an order for payment of child support retroactively. Motions for temporary orders are not well-suited to dealing with retroactive claims where there is a lack of clarity on factual and financial issues due to competing affidavits. These issues are better determined by the give and take of the negotiation process or, if necessary, by trial with oral testimony and cross-examination. Also, I anticipated that by making the shared parenting order last September, the set-off provisions of section 9 of the Child Support Guidelines would apply.
[6] In relation to the second period of time James J. stated at para. [12] and [19]:
[12] On the issue of ongoing child support, the parties have agreed to an arrangement based on Ms. Bleecker’s assessment. I am not aware of the date the new system is to commence but am told by counsel for the applicant that the respondent’s parenting time will be less than 40%. The respondent says the new regime may approximate a 60-40 split. One of the characteristics of the Child Support Guidelines in Ontario is that if the parenting time slips below 40%, it triggers a prima facie obligation to pay table amount child support. The 40% rule is inflexible. The hardship provisions of section 10 of the Guidelines can, in exceptional circumstances, provide relief from the obligation to pay table amount support. Here, the respondent says that if his parenting time in the new system falls below 40%, he says he is entitled to pay less than table amount child support on hardship grounds.
[19] If the respondent’s parenting time set out in Ms. Bleecker’s schedule is less than 40%, he shall pay child support based on the Guidelines. If greater than 40%, the provisions of section 9 of the Guidelines shall apply.
[7] The grounds on which leave to appeal from an interlocutory order of a judge are set out in the Rules of Civil Procedure rule 62.02(4):
Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) There appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted. R.R.O. 1990, Reg. 194, r. 62.02 (4).
[8] A contrasting decision exists when a court chooses different legal principles to decide a comparable legal problem or to guide the exercise of the court’s discretion.
[9] In my view the omission to order any child support for the first period of time during which the applicant had a presumptive entitlement to at least child support pursuant to s. 9 of the CSG is in conflict with other decisions in Ontario.
[10] The reasons given by the motion judge explain why he did not award full table support during that period. The transcript of the motion was filed. The motion judge was clearly troubled by the applicant’s submission that what she had previously represented would provide the respondent with approximately 39.8 percent of parenting time, and which the judge had increased intending that the respondent reach 40 percent, was actually only 34 percent. In these circumstances the motion judge declined to embark upon the exercise of re-determining the allocation of parenting time again albeit for the purpose of the child support motion. I would not grant leave to appeal from the motion judge’s decision not to award the applicant full table support for the first period of time in these particular circumstances.
[11] The primary reason articulated for not awarding any child support relates to factors pertaining to retroactive support. The applicant had sought the full table amount of child support commencing on May 1, 2013. Her application was issued on August 8, 2013. The claim for child support from May 1 to August 8, 2013 was a claim for retroactive support. It would need to be determined by reference to the factors applicable to claims for retroactive support. This is a discretionary analysis to which the motion judge referred in his endorsement. I would not grant leave to appeal from his decision to dismiss the retroactive portion of the applicant’s claim.
[12] However the claim for child support commencing from August 8, 2013 is not a retroactive claim. Despite stating that in making his parenting award he had anticipated that the set off provisions of s. 9 of the CSG would apply, the motion judge did not make any order for child support at all for this period of time.
[13] For these same reasons I find there is also reason to doubt the correctness of the denial of any temporary child support for the first period of time.
[14] With respect to the second period of time, the motion judge did not actually determine whether the new parenting arrangement then in place was or was not a shared regime and did not actually order any specific amount of child support. These issues were before him. Not to decide an issue before the court, rather to apparently leave it to the parties to determine, is in conflict with other Ontario decisions and also gives rise to good reason to doubt the correctness of the order.
[15] Turning to the second aspect of each of r. 62.02(4) (a) and (b), I conclude that it is desirable that leave to appeal be granted and that the matter is one of sufficient public importance to warrant so doing. Child support is the right of the child. The omission to order any child support seriously impacts upon the three children of this marriage. Their need for their father’s financial support exists in the present. The possibility of deferring this issue to a future trial date is not an adequate alternative.
[16] For these reasons leave to appeal from the order of James J. dated July 14, 2014 is granted as to the omission of an award of child support pursuant to s. 9 of the CSG for the first period of time, and as to the omission of an award of the table amount of child support for the second period of time. I note that the respondent conceded in argument before me that since July 1, 2014, the children’s primary residence has been with the applicant; he does not dispute that he has not had shared custody of them within the meaning of s. 9 of the CSG since that date.
[17] The applicant also seeks leave to appeal the order awarding no costs of the motion on the ground it was made without first receiving submissions. An award of costs is discretionary. Nonetheless, the opportunity to make submissions should routinely be given. Without benefit of submissions the motion judge could not have known whether there were offers to settle the child support motion, and if so, the terms of the offers in relation to his order. Offers are important to costs awards in any family matter. While I would not grant leave to appeal solely from the award of no costs, in so far as the applicant has been granted leave to appeal on two issues, the appellate court should be entitled to award costs of the initial motion if in its discretion it is appropriate to do so. For this reason the applicant is also granted leave to appeal from the costs award.
[18] If counsel are unable to agree on the costs of this motion, I will receive written submissions from them. They should be confined to two pages or less, plus any necessary attachments, including any relevant offers and bills of costs. Counsel shall agree on the dates by which to exchange submissions and to deliver them to me, provided they are completed by February 28, 2015.
[19] I am agreeable to meeting with counsel and the parties, if they wish, in an effort to settle the issues in the proposed appeal.
J. Mackinnon J.
Date: February 11, 2015
COURT FILE NO.: FC-13-1861
DATE: 20150211
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Dianne Pearl Douglas, Applicant
AND
Rene Albert Faucher, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Cecil J. Lyon, Counsel for the Applicant
Jack Pantalone, Counsel for the Respondent
ENDORSEMENT
Mackinnon J.
Released: February 11, 2015