ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-16-20711
DATE: 20180411
BETWEEN:
Minerva Pena
Respondent on Appeal
– and –
Elois Sanchez Pena
Appellant
Dilani Gunarajah for the Respondent
Lance Carey Talbot for the Appellant
HEARD: February 6and March 20, 2018
C. Gilmore, J.
appeal judgment
Overview
[1] Mr. Elois Sanchez Pena appeals the judgment of Curtis, J. of the Ontario Court of Justice delivered on February 4, 2016.
[2] The judgment of Curtis, J. resulted from the appellant’s Motion to Change issued on May 26, 2013 in which he sought to terminate child support for his three sons on the grounds that they were all independent adults and no longer entitled to support.
[3] The respondent, Ms. Minerva Pena, served her response to the Motion to Change on August 13, 2014 in which she claimed that the appellant owed significant arrears of child support and s. 7 expenses for the previous 13 years. The respondent sought a total of $67,085.85 in retroactive child support and s. 7 expenses.
[4] The Motion to Change proceeded in writing pursuant to Rule 15 of the Family Court Rules. By agreement, there was no cross-examination of the parties. Both counsel made submissions.
[5] In her judgment on the Motion to Change, Curtis, J. ordered the appellant to pay 50% of the s. 7 expenses she found owing. The s. 7 expenses totalled $18,691.98. She also ordered retroactive child support from January 2005 to May 1, 2014. It is conceded that as of the date of argument of this appeal there are no arrears of child support and that child support for the last dependent child ended on April 30, 2016. There is no current obligation to pay child support as all of the children are self-supporting adults. The appellant takes the position that there is in fact a credit owed to him. He seeks this court’s determination of the support arrears issue on appeal but indicates he will not pursue any credit if one is found to be owed to him.
[6] At this time, the Family Responsibility Office is enforcing only the payment of the retroactive s. 7 expenses in the amount of $700 per month and the appellant has continued to pay that amount.
[7] The appellant appeals the judgment of Curtis, J. on eight separate grounds:
a. The judge misapprehended the facts in finding that the appellant engaged in blameworthy conduct by finding that he was deliberately behind in his support payments for many years without considering his periods of unemployment or his repayment of all arrears.
b. The judge made palpable and overriding errors of fact in finding that the s. 7 expenses were reasonable and actually incurred by the respondent.
c. The judge misapprehended the facts by failing to consider that the respondent provided no proof that the s. 7 expenses were actually paid, by failing to consider that in some years the respondent’s income was far less than the s. 7 expenses she purported to pay, and by failing to consider the effect of the respondent’s bankruptcy in 2009/2010 with respect to any outstanding s. 7 expenses.
d. The judge erred in fact and in law by determining that the orthodontic expenses were reasonable and necessary without any proof and without considering the means of the parties.
e. The trial judge erred in accepting that the respondent was intimidated by the appellant when that finding was inconsistent with the evidence. Any refusal to pay expenses cannot be equated with intimidation. Any refusal to pay was based on the appellant’s position that the children were no longer dependents and the fact that the respondent had never (prior to her response to the Motion to Change) made a request for s. 7 expenses and no proof of the expenses was properly provided.
f. The trial judge improperly relied on hearsay evidence from the children who refused to swear affidavits for the proceeding.
g. The trial judge applied the incorrect legal test in determining that the court had jurisdiction to hear a claim for retroactive child support and s. 7 expenses when all of the children were ineligible for support at the time the Motion to Change was commenced.
h. The decision of the trial judge should be set aside because of a reasonable apprehension of bias. The trial judge gave the respondent significant indulgences with respect to filing her response and other materials such that the respondent was allowed 14 months to file her responding materials and the matter was not finally argued until July 2015, almost two years after the Motion to Change was issued. The court refused to stay the support order despite repeated requests by counsel that the delay and indulgences granted to the respondent were prejudicial.
Background Facts
[8] The parties have three children: Jesse Pena, born May 7, 1988; Allen Pena, born June 6, 1991; and Brian Pena, born April 12, 1993. At the time the appellant issued his Motion to Change, the children were 25, 23 and 20 years old, respectively.
[9] By way of an interim order dated September 15, 1997, the appellant was ordered to pay child support of $566 for the three children commencing September 27, 1997. Although the order does not recite this, the appellant was earning in the range of $29,000 per year when the order was made. The interim order was made final on March 16, 1998. The support amount remained the same. It is uncontested that neither the interim nor the final order contained any provision requiring either party to provide financial disclosure to the other in future years.
[10] Throughout his years of paying support, the appellant’s income varied. There were periods when his work hours were reduced or he was unemployed. He argued that at one point in 2000 his arrears reached $15,000. However, the appellant never sought to reduce his support obligation. He continued to pay the same amount plus more towards the arrears and had the arrears paid in full by 2005. At the point of issuing his Motion to Change he owed no arrears of support. To be clear, there were also times when the appellant earned more than $29,000. He did not advise the respondent of this nor did he voluntarily increase his support payments. The appellant did not provide any income information to the respondent because he did not believe he was required to do so.
[11] Further, the appellant and the respondent did not communicate well post-separation. They in fact spoke very little over the 18 years after separation considering they had three children together.
[12] The appellant provided proof of his income from 2002 onwards as he was unable to locate any information prior to that. His income between 2002 and 2013 was as follows:
2002 $43,601
2003 $36,697
2004 $19,637
2005 $38,601
2006 $39,831
2007 $41,179
2008 $42,877
2009 $44,018
2010 $40,966
2011 $46,853
2012 $51,711
2013 $54,644
[13] The respondent provided proof of income for the years 2008-2013 as follows:
2008 $2,104
2009 $6,379
2010 $22,006
2011 $23,080
2012 $18,087
2013 $20,399
[14] After the appellant issued his Motion to Change in 2013 he received a letter from the respondent’s counsel in May 2013 indicating that she did not agree that the children were no longer dependents. For the first time, she requested income information from the appellant going back to 2002. The appellant deposed that prior to this letter he had never had any request for income information from the respondent nor any information about or request for a contribution towards s. 7 expenses.
[15] In support of her position, the respondent swore an affidavit dated November 12, 2014. As a result of that affidavit the appellant learned for the first time of the respondent’s bankruptcy in 2009. The respondent deposed that she told the appellant about her bankruptcy and asked him for financial help. The appellant denies that he knew anything about the bankruptcy.
[16] The respondent submitted that she repeatedly asked the appellant to contribute financially to the children including the cost of their braces, schooling, graduations and medical bills. The appellant emphatically denied that this was the case. His position throughout was that by the time of the Motion to Change, the parties had not spoken for about eight years. The respondent had never asked him for financial assistance for ongoing or s. 7 expenses and there was no evidence that she had other than the assertions in her affidavit.
[17] The respondent provided information concerning the cost of Jesse’s education at Humber College (one year) and his diploma in Business Administration from Trios College. She claimed that the appellant had refused to contribute to these costs. The appellant replied that he had no knowledge of Jesse’s attendance at these programs or their cost until he received the appellant’s affidavit. He was never consulted or asked to contribute to these expenses until he received the respondent’s affidavit.
[18] The respondent also included with her affidavit a copy of an invoice from George Brown College for Brian’s Electrical Techniques program. The appellant was aware of this program and asked Brian directly if he needed help paying the tuition cost. According to the appellant, Brian said he would let him know if he needed help. The appellant never heard back from him. The paid invoice provided shows that Brian made the tuition payment himself. There is no proof that the respondent paid the tuition on Brian’s behalf.
[19] The respondent provided copies of statements of account with her affidavit from two dentists totaling $17,015 for the children’s braces and an account ledger for $3,849.91 for dental care for the children. The appellant deposed he was never consulted about these expenses and was never previously asked to contribute to them. Further, the account ledger is mostly illegible and appears to include dental expenses for the respondent personally.
[20] As of November 2014, the appellant deposed that Jesse was 26 and living with his girlfriend, Allan was working part-time and earning about $21,000 annually and Brian had been working for the last three years. He maintained his position that support should be terminated for all three children and that as of 2013 he had met his support obligations (even adjusting for his income fluctuations) and was in fact owed a credit of $2,727.
The Standard of Review
[21] It is well known that the standard of review on a pure question of law is correctness and on a question of mixed fact and law the standard of review is palpable and overriding error (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, paras. 8, 10).
[22] Only where the trial judge is shown to have committed a palpable and overriding error should the appeal court substitute its own view of the evidence. This includes situations in which the trial judge has made findings of fact or drawn inferences that are wrong or not supported by the evidence (see Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201).
[23] A non-exhaustive list of errors in the fact-finding process that could produce an unreasonable finding of fact includes the following:
• The failure to consider relevant evidence
• The misapprehension of relevant evidence
• The consideration of irrelevant evidence
• A finding that has no basis on the evidence
• An inference that is speculation (see Peart v. Peel (Regional Municipality) Police Services Board (2006), 43 C.R. (6th) (Ont. C.A.), at para. 159).
The Issues
Does the Court have the Jurisdiction to Change Child Support in These Circumstances?
[24] One of the appellant’s grounds of appeal is that the trial judge erred in finding that a claim for retroactive support and s. 7 expenses could be made when the children in question were not eligible for support at the time of the claim.
[25] The appellant relies on what is commonly known as the “DBS cases,” a group of cases decided by the Supreme Court of Canada in 2006 that dealt with retroactive child support (see DBS v. SRG; LJW v. TAR; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] S.C.R. 231).
[26] In DBS, the court held that “[a]n adult, i.e., one who is over the age of majority and is not dependent, is not the type of person for whom Parliament envisioned child support orders being made…Child support is for children of the marriage, not adults who used to have that status” (para. 89). Many courts subsequently interpreted DBS as meaning that no application for retroactive support could be made once children were no longer dependents. That interpretation was also applied to cases decided under the Family Law Act (see Browning v. Browning, 2008 ONCJ 388). However, this interpretation was not consistent across the country or even within provinces (see Hodgkinson v. Hodgkinson, 2010 SKQB 96).
[27] In Colucci v. Colucci, 2017 ONCA 892, 138 O.R. (3d) 321, the Court of Appeal for Ontario provided some much needed guidance on this issue. In that case the appellant/father sought to vary arrears of support of over $175,000 when both children were no longer children of the marriage. The respondent/mother sought to dismiss the application on the basis that the court did not have jurisdiction.
[28] The father brought a motion for summary judgment to determine the narrow issue of whether the court had jurisdiction to discharge child support arrears retroactively when the children were no longer dependents. The lower court dismissed the motion and relied on DBS for the proposition that the court did not have jurisdiction.
[29] The Court of Appeal followed the reasoning in Buckingham v. Buckingham, 2013 ABQB 155, 554 A.R. 256, in determining that “allowing a court to vary an existing order after the children cease to be children of the marriage is consistent with the principles of child support” (para. 21). The court held that “[c]ertainty, consistency and finality are important considerations in relation to child support orders but they must be balanced with the concerns of flexibility and fairness” (para. 23). In following this reasoning on fairness principles, the court held that retroactive applications to increase or decrease child support should be considered (paras. 26 and 27).
[30] In allowing the appeal and granting summary judgment, the court also held that the principles applied not only to cases decided under the Divorce Act, but also to those decided under the Family Law ActAs such, recent binding case law has interpreted DBS as allowing retroactive variations where the children are no longer dependents. In the case at bar, the parties’ children, Jesse and Allen, were not eligible for support as of the date of the respondent’s claim (September 30, 2014). Given the jurisprudence outlined above, it is clear that the claim of retroactive child support could be made notwithstanding that two of the children were no longer dependents at the time.
[31] In all the circumstances, therefore, this ground of appeal must be dismissed.
Blameworthy Conduct
[32] The appellant submits that the trial judge misapprehended the facts in finding that the appellant engaged in blameworthy conduct by not paying his child support obligation in a timely manner, refusing to contribute to s. 7 expenses when requested and intimidating the respondent when she raised the issue of support. These factors explained the delay in the respondent requesting increased support and s. 7 expenses according to the trial judge.
[33] In DBS, the court defined blameworthy conduct as “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support” (para. 106). The court went on to provide specifics of what constitutes blameworthy conduct including hiding income increases from the recipient, intimidating a recipient in order to dissuade him/her from bringing an application for child support, or misleading a recipient into believing that his/her child support obligations are being met when the payor knows they are not (para. 106).
[34] Blameworthy conduct can also include situations in which a payor does nothing active to avoid his/her obligations, but the determination is a subjective one. That is, a payor who does not automatically increase support payments may not be engaging in blameworthy conduct if objective indicators show a reasonably held belief that the payor is meeting his or her obligations. Factors to consider include whether the payor was following the court order and how close their payments were to the required amount and whether they contributed to other expenses in excess of their obligations (paras. 107 and 108).
[35] Turning to the specific findings of the trial judge and dealing first with the issue of the timeliness of the appellant’s payments, the undisputed evidence was that the parties did not communicate well over the 18 years since the support order was made. The appellant said he received no communication from the respondent requesting additional funds for s. 7 expenses or his income information. The respondent’s evidence was that she was terrified of the appellant, who intimidated her and refused to contribute to the children’s expenses particularly around the time of her bankruptcy.
[36] There was evidence that the appellant had contact with his children but the relationship was not a good one. When the children were younger, access was difficult because the appellant complained that the respondent would interrogate the children about access upon their return to her. Once the children were older, they did have more contact with their father but it was sporadic and, according to the appellant, his relationship with the children was never a good one.
[37] The trial judge prepared a chart showing the amount of arrears outstanding between 1997 and 2013. She noted that in some years the arrears were significant (over $12,000) and in other years they were nominal ($217). She failed to highlight that in other years the appellant was in a credit position although not by a significant amount.
[38] The trial judge found that the appellant engaged in blameworthy conduct from the date the order was first made and continued this conduct throughout the period of the support order.
[39] The difficulty here is that the trial judge did not balance her view of the appellant’s conduct with objective factors as stipulated by DBS. First, the appellant was sometimes in arrears because his income was less than the income on which he was ordered to pay support. For example, in 1997, 1998 and 2004 the appellant earned less than $29,000. He did not seek to change the support order to reduce support and had he done so, there may not have been arrears of support in those years. Further, in two of the highlighted years, the appellant was in a credit position at the end of the year. The trial judge fails to mention that support for two of the children ended in 2011 and for one of the children in 2009. Therefore, the appellant’s support obligation would have been reduced in those years. Finally, the trial judge fails to mention that the appellant always caught up with his support payments to ensure compliance with the order. In one year, over half his income went to pay down support arrears.
[40] The trial judge finds that the appellant’s blameworthy conduct included his failure to disclose increases in his income and that he thereby benefitted from his conduct to the detriment of the children. She finds that the appellant knew his support obligation was tied to his income and that his income had increased. She further found that the appellant engaged in blameworthy conduct because he did not adjust child support in accordance with this income. However, these findings fail to take into account the following facts:
a. The appellant’s evidence was that he did not know he was required to report increases in income.
b. The appellant knew he had to comply with the court order, which he did even though at times he was in arrears. The court order did not require that he provide annual income information.
c. The appellant was not aware of the provisions of the Child Support Guidelines. The appellant was not a sophisticated individual. He worked at relatively low-paying jobs over the years and was subject to economic downswings and cuts to his hours.
d. There was no evidence that the appellant actively hid his income increases from the respondent.
[41] The trial judge also failed to consider to the respondent’s own evidence, which was that she asked the appellant for money for medical, dental and educational expenses but she did not specially ask for his income information. It seems difficult to ascribe blame to the appellant when there was no evidence that he was asked for income information, no court order requiring him to provide it and his own evidence, which was that he was unaware that he had to produce income information annually.
[42] The trial judge also accepted the respondent’s evidence that she repeatedly asked the appellant for financial contributions to the children and he always refused. This directly contradicts the undisputed evidence that the parties barely communicated over the 18 years after the order was made. The trial judge noted that the children occasionally asked the respondent for money for themselves but not for the mother and the appellant often gave the children money if asked.
[43] The situation would have been entirely different had the appellant sought to expunge a large accumulation of arrears on the basis that the children were no longer dependents. In this case, the appellant lacked information about the children’s exact status and could not obtain this information from the respondent voluntarily. The grounds for his Motion to Change were fair and reasonable. He came to court with no outstanding child support arrears.
[44] DBS requires the court to balance certainty, consistency and finality with fairness and flexibility. I do not find that the trial judge fully considered all of the evidence with respect to the appellant’s alleged blameworthy conduct and therefore did not undertake the proper balancing exercise.
[45] I find that the trial judge erred in both fact and law with respect to the finding of blameworthy conduct and that ground of appeal shall be allowed.
The Start Date for Retroactive Support
[46] DBS provides that the start date for retroactivity may be one of four dates:
a. The date of the application (in this case the respondent’s Response to Motion to Change dated September 30, 2014).
b. The date when formal notice was given to the payor.
c. The date when effective notice was given to the payor.
d. The date when the amount of child support should have increased.
[47] DBS adopted the date of effective notice as the general rule for the commencement of retroactive support awards (para. 118). The recipient parent need not take any active steps for effective notice to be given. The recipient parent need only broach the subject. Where there is blameworthy conduct, the retroactive start date will be the date of the material change, or the date the new level of support should have started.
[48] Given that the finding of blameworthy conduct has been found to be a valid ground of appeal, the court must then examine the remaining possible dates for the commencement of retroactive support.
[49] It is clear that no formal notice was given to the appellant before this proceeding commenced. It is undisputed that the respondent did not inform the appellant by letter, email or other reproducible evidence of her request for increased support or s. 7 expenses. The respondent relies on the unsupported allegations in her affidavit that she asked the appellant for money for s. 7 expenses and support.
[50] The respondent’s counsel argues that the appellant knew about the respondent’s life and had contact with the children. For example, he must have known that they were wearing braces. He knew through third parties that the respondent had remarried and that her wedding was in the Dominican Republic.
[51] The argument by the respondent was not persuasive. There was no evidence that the appellant knew the children were wearing braces. Nothing in the affidavit material supported this contention. Further, the information the appellant had about the respondent was from third parties and not from her directly. And, finally, I do not see how the fact that the appellant had some information about the lives of the children and the respondent can be construed to be notice of the fact that she sought increased support or s. 7 expenses.
[52] Given that the finding of blameworthy conduct was in error, this leaves only the possibility of either the date of effective notice or the date of the Response to Motion to Change as possible start dates for retroactive support. At para. 87, the trial judge noted the following:
There were no specific start dates or specific amounts claimed in her Response to Motion to Change, nor in her affidavit in support. There were no specific start dates in her factum. Even in response to repeated questioning by the court, and a specific request for a chart organizing and setting out the details of her claims, the lawyer did not present an organized request for specific start dates for each of the three children, nor in each of the several categories of s. 7 expenses that she was claiming.
[53] As a result of the respondent’s deficient presentation of evidence to the court, the trial judge relied heavily on a letter from the respondent’s counsel dated June 6, 2014 (attached as an exhibit to an affidavit filed before she filed her Response to Motion to Change). That letter requests ongoing child support for two children based on an income of $51,711.97 (no start date given), arrears of support of $32,022 based on a chart with the appellant’s income between 2002 to 2014 applying support credits and calculating support for only two children after 2012, and arrears of s. 7 expenses of $19,837.58, with the appellant’s contributed being 74%. The letter does not account for any contribution from the children nor does it appear to contain copies of the receipts.
[54] Only after the court insisted on multiple occasions that she do so did the respondent provide a chart to the court setting out her claims for retroactive table support and s. 7 expenses. The trial judge makes specific reference to five separate occasions when the matter was to be heard but did not proceed because of the lack of evidence. Even after argument, the court required the respondent on two occasions to file additional affidavit and income evidence. The court was also critical of the respondent’s disorganized and deficient provision of information concerning when each child ceased being a dependent.
[55] In her judgment, the trial judge ordered retroactive table support back to January 2005. She did not explain why she used this date. It simply appears in a chart at the end of her judgment. This may have been the start date used in the chart relied on by the respondent and filed at the request of the court but the trial judge did not explicitly state this.
[56] Further, in determining the start date for support, the trial judge did not make reference to the considerations in DBS with respect to fairness principles and balancing what she found to be the appellant’s blameworthy conduct, the respondent’s failure to provide adequate information to the court when it was her onus to do so, any evidence related to the effect on the children, and the appellant’s position that he was not made aware of any of circumstances until he became aware of the respondent’s position after service of his Motion to Change.
[57] In short, her choice of January 2005 as the start date for retroactive support and s. 7 expenses appears to be random, at best, and not based on any available evidence.
[58] Given this court’s determination that the judge erred in finding blameworthy conduct on the part of the appellant, and given the trial judge’s errors with respect to the support start date, this court is left with substituting its own start date for retroactive support. The best evidence of notice was the June 6, 2014 letter from the respondent’s counsel. It is clear that the appellant had notice of all of the respondent’s claims and the amounts sought on that date. Retroactive child support and s. 7 expenses cannot, therefore, be awarded before this date.
What is the Appellant’s Responsibility for s. 7 Expenses and in what Proportion?
[59] The respondent claimed reimbursement of s. 7 expenses for orthodontics ($17,609), dental expenses not covered by her insurance ($5,688) and tuition for post-secondary education ($14,086).
[60] The trial judge found all of the expenses were properly claimed as s. 7 expenses and that none of the children should be required to contribute to the expenses given all of the circumstances. She found that the expenses were both reasonable and necessary and that the appellant should contribute 50% of the expenses, which amounts to $18,691.98.
[61] The trial judge was aware that the respondent sought proportional sharing of the expenses in a range of 65% to 87% attributed to the appellant. However, she required the appellant to contribute only 50% of the expenses based on a finding that it was “just, fair and appropriate” that he do so.
[62] The following should be noted with respect to the respondent’s claim for s. 7 expenses:
a. The trial judge was critical throughout her judgment of the manner in which the respondent presented her evidence regarding her s. 7 claims and the lack of proper documentary evidence in support of those claims. The trial judge found that claims for s. 7 expenses must be supported by the evidence, while at the same time finding that the materials produced by the respondent in support of her claims were “inadequate and varied widely.” She also commented that the chart of s. 7 expenses prepared by the respondent was “not organized, incomplete and often difficult to follow.”
b. The trial judge correctly noted that the proof of such expenses was the respondent’s onus and then went on to comment that the respondent “inferentially” relied on s. 7(1) of the Child Support Guidelines, which allowed her to estimate the amount claimed and allowed the court to make an order based on that estimate.
c. Some of the evidence that the respondent presented did not make sense. For example, in 2008 she claimed s. 7 expenses that exceeded her income. In other years, such as 2010, the s.7 expenses claimed made up nearly half of her income.
d. The respondent went bankrupt in 2009/2010. She provided no proof of payment of s. 7 expenses in those years. Further, there was no evidence that any outstanding balances owing were not erased by the bankruptcy.
e. The respondent failed to produce any evidence that the $13,277.72 she spent on braces was medically necessary. While one may infer that braces by their very nature are necessary, not even a treatment plan for any of the children was produced. This was the respondent’s onus. The trial judge found that the braces were both necessary and that the cost was a reasonable expense given the parties’ incomes. This finding was made notwithstanding the fact that the respondent produced no income information for 13 of the 19 years in question.
[63] The trial judge gave no real reason for apportioning s. 7 expenses in an amount different from what both parties requested and the CSGs prescribe other than “fairness.” There was no factual framework on which the trial judge based this conclusion and as such, I find it was made in error.
[64] Given this court’s findings concerning blameworthy conduct and the start date for retroactivity, the claim for s. 7 expenses can go back no farther than June 6, 2014. The s. 7 expenses for which the appellant is responsible must be apportioned in accordance with their respective incomes in the relevant years pursuant to the parties’ requests and the relevant provisions of the CSGs.
Reasonable Apprehension of Bias
[65] The appellant submits that the trial judgment should be set aside because of certain comments made by and the conduct of the trial judge. The appellant gives the following examples:
a. The appellant served his Motion to Change on June 18, 2013. The respondent did not have her responding materials ready until September 30, 2014. She was granted multiple adjournments by the trial judge who did not adequately consider the prejudice to the appellant and in fact ordered costs against the appellant when he sought a stay of the support order pending the hearing of the motion. The motion was not heard until December 5, 2014 and March 17, 2015.
b. The court requested further evidence from the respondent on the issue of s. 7 expenses. The evidence was required to be served and filed by June 15, 2015. The respondent did not have her materials ready. The motion’s judge allowed the respondent a further two weeks to file her materials and two weeks for the appellant’s response.
c. The trial judge made derisive comments about counsel on both sides. She made reference on several occasions to the case being poorly handled and badly presented. The trial judge blamed both lawyers for the deficiencies in the respondent’s materials and in particular the lack of cogent, organized evidence on the issue of s. 7 expenses. The appellant submits that the trial judge’s complaints about the handling of the case were unfairly directed towards both counsel. The appellant’s counsel had all of his required material before the court. It was the respondent and her counsel who failed to properly file material in a timely fashion and failed to properly respond to the court’s request to do so.
d. The multiple requests for additional evidence on s. 7 expenses were ostensibly directed towards both counsel but in reality only the respondent had access to this information.
[66] The appellant submits that the trial judge’s unfair condemnation of his counsel and the multiple adjournments and indulgences granted to the respondent compromised the appearance of fairness in the proceedings.
[67] The appellant relies on Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60, 393 D.L.R. (4th) 175. In that case, the Court of Appeal for Ontario found a reasonable apprehension of bias where the motion judge conducted himself in a manner that appeared to favour the respondents. He adjourned the motion on his own initiative to give the respondents an opportunity to correct a flaw that was potentially fatal to their position, failed to give counsel an opportunity to argue two points that the motion judge had previously identified as principle ones in the case, and made derisive comments about the legitimacy of the appellants’ position and discourteous comments about counsel.
[68] The court held that the motions judge was well-intentioned but the cumulative effect of his conduct would lead a reasonable observer to conclude that the appellants did not receive a fair hearing (para. 89). The decision was set aside.
[69] The test in determining whether a reasonable apprehension of bias arises is an objective one. The interventions complained of must be evaluated cumulatively from the perspective of a reasonable observer throughout the trial (see Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities, 1992 84 (SCC), [1992] 1 S.C.R. 623).
[70] In the case at bar it is clear that the trial judge made somewhat discourteous comments to both counsel about their conduct and the manner in which the case was presented. However, I do not find that such comments would lead a reasonable observer to conclude that the trial judge was biased towards one party or the other. It is clear that she was genuinely frustrated with the respondent’s lack of timely response and her inadequate materials. Despite multiple requests for further and better material, the trial judge was still left with documentation that was deficient.
[71] The trial judge’s frustration with the parties and the material presented was obvious. Further, the deficient corroborating documentation has led this court to conclude that the judge erred in relying on it in making a retroactive support order. In my view, going further and interpreting the trial judge’s frustration as a reasonable apprehension of bias would be overreaching. That ground of appeal shall therefore be dismissed.
Costs
[72] The parties have agreed that the successful party on appeal would be entitled to costs of $5,000. This amount should therefore be awarded to the appellant.
[73] The appellant also seeks costs of between $12,000 to $15,000 for the trial below. The problem is that neither party actually sought costs nor were submissions on costs made. The appellant submitted that as the unsuccessful party he did not think it reasonable to ask for costs. He also served an Offer to Settle but did not provide it to the court because he was unsuccessful.
[74] The Family Court Rules require that costs be awarded at every step of the proceeding. The trial judge was not asked to award costs and intimated that she was not inclined to order them. It would be unfair to the respondent at this point to require that she now pay costs of that proceeding.
Final Orders
[75] The appellant’s appeal is allowed in part.
[76] Retroactive support and s. 7 expenses shall be calculated from June 6, 2014 forward. The appellant shall therefore pay his proportionate share of Brian Pena’s tuition for 2014 and 2015 subject to any contribution made by Brian Pena personally.
[77] The appellant is not required to contribute to any other s. 7 expenses given that they predate the date of notice being June 6, 2014 and there being no blameworthy conduct on the part of the appellant.
[78] The appellant shall pay child support for Brian Pena for May and June 2014, which is $494 per month based on an income of $54,664.
[79] The balance of the appeal is dismissed.
[80] The Family Responsibility Office shall adjust their records accordingly and immediately cease enforcement of any amounts other than those set out herein.
[81] Based on the findings in this judgment, the appellant will have overpaid his support obligation. He has clearly stated that he will not pursue any support credit and he is therefore precluded from doing so. Any amounts owing pursuant to this judgment shall be set off against the credits owing to the appellant.
[82] The respondent shall pay costs of $5000.
Gilmore, J.
Released: April 10, 2018
COURT FILE NO.: FS-16-20711
DATE: 20180411
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Minerva Pena
Respondent on Appeal
– and –
Elois Sanchez Pena
Appellant
REASONS FOR JUDGMENT
Gilmore, J.
Released: April 11, 2018.