Gragtmans v. Gragtmans

Ontario Reports

Ontario Superior Court of Justice

Czutrin J.

September 4, 2020

152 O.R. (3d) 506 | 2020 ONSC 5322

Case Summary

Arbitration — Appeal — Leave to appeal — Arbitrator suspending child support during child's "gap year" before university — Applicant claiming that suspension was termination such that he was entitled to de novo review of spousal support — Application for leave to appeal arbitration award dismissed — Arbitrator committed no error of law — Award clearly stated that suspension of child support was equivalent to non-termination.

Family law — Support — Child support — Spousal support — Arbitrator suspending child support during child's "gap year" before university — Applicant claiming that suspension was termination such that he was entitled to de novo review of spousal support — Application for leave to appeal arbitration award dismissed — Arbitrator committed no error of law — Award clearly stated that suspension of child support was equivalent to non-termination.

The applicant had been paying child support pursuant to a divorce order but stopped in June 2018. The divorce order provided that quantum and duration of spousal support was subject to review on the earlier of termination of child support and September 1, 2022. The parties' youngest son had graduated from high school and was accepted into university, but with the support of his parents took a "gap year" and deferred commencing university until September 2019. The stoppage in child support triggered an arbitration hearing. The arbitrator found that the child was not immediately independent upon graduating from high school and had not withdrawn from parental control at that time. He continued [page507] to live with and depend financially on the respondent. As a result, the arbitrator awarded the respondent child support for the summer before the gap year. Child support was suspended for the gap year and recommenced when the child started university. The applicant took the position that the divorce order contemplated only payment or termination, but not suspension, and as such the arbitrator erred in determining that child support was only suspended during the gap year and not terminated. With the termination of child support, the applicant claimed to be entitled to a de novo review of spousal support at the time of the arbitration. The applicant sought leave to appeal the arbitration award.

Held, the application should be dismissed.

The arbitrator did not commit an error of law in concluding that the applicant was not entitled to a de novo spousal support review under the divorce order. A plain reading of the divorce order provided a review of spousal support quantum, not entitlement, when the child finished his first university degree anticipated for September 2022. While the applicant pleaded correctly that suspension of child support was not specifically mentioned in the divorce order, the arbitration took place well before September 2022 so the first trigger for a spousal support review was not applicable. A correct determination as to whether a support review was triggered required the arbitrator to determine whether child support was terminated for the gap year. The award clearly stated that "suspension" of child support was equivalent to "non-termination" for the purpose of the spousal support review analysis.

Cases referred to

Aubert v. Cipriani, [2015] O.J. No. 5088, 2015 ONSC 6103, 258 A.C.W.S. (3d) 572, 70 R.F.L. (7th) 198 (S.C.J.); Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, [1996] S.C.J. No. 116 (S.C.C.); Gragtmans v. Gragtmans, [2020] O.J. No. 300, 2020 ONSC 250 (S.C.J.); Hilhorst v. Amaral, [2018] O.J. No. 3282, 2018 ONSC 3782 (S.C.J.); Petersoo v. Petersoo, [2019] O.J. No. 3868, 2019 ONCA 624, 29 R.F.L. (8th) 309 (C.A.); Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 S.C.R. 633, [2014] S.C.J. No. 53, 2014 SCC 53 (S.C.C.)

Statutes referred to

Arbitration Act, 1991, S.O. 1991, c. 17, s. 45(1)

Family Law Act, R.S.O. 1990, c. F.3, s. 31 [as am.]

Rules and regulations referred to

Federal Child Support Guidelines, SOR/97-175

APPLICATION for leave to appeal an arbitration award.

Sarah Boulby and Oren Weinberg, for applicant.

Harold Niman and Chloe Van Wirdum, for respondent.

CZUTRIN J. —

[1] The Applicant Ian Gragtmans seeks leave to appeal the arbitration award made by Stephen M. Grant (the "Arbitrator") dated September 16, 2019 (the "Award"). [page508]

[2] The Respondent Marva Lee Gragtmans submits that any errors, if made, in the Award are errors of mixed fact and law and are therefore unappealable and in any event, based on the facts and unique circumstances of this case I should not allow the leave request.

[3] The Arbitrator had previously assisted the parties in resolving their family issues at the mediation stage resulting in a consent Divorce Order granted by Paisley J. dated August 24, 2018 (the "Divorce Order"). The parties had confidence in the Arbitrator as they confirmed throughout the Divorce Order the requirement to return to the Arbitrator if and when they needed to resolve future issues.

[4] The Applicant triggered the return to the Arbitrator when in June 2018 he stopped paying child support. The Applicant took the position that his child support obligations terminated when the parties' son Thomas, who was still a minor, graduated from high school, was accepted to Dalhousie University but with the support of his parents, Thomas deferred commencing university to September 2019.

[5] When the mediation phase failed to resolve issues with the Arbitrator, the parties signed a mediation/arbitration agreement dated October 2, 2018. They selected, at para. 14.1 of the mediation/arbitration agreement, the narrowest appeal rights available to them: "A party may appeal the Award in accordance with s. 45(1) of the Arbitration Act, 1991, S.O. 1990 [sic], c. 17." Section 45(1) [of the Arbitration Act, 1991, S.O. 1991, c. 17] allows appeals of family law arbitral awards only on questions of law, with leave, if "(a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and (b) determination of the question of law at issue will significantly affect the rights of the parties".

[6] Paragraph 9 of the Divorce Order provided that the "quantum and duration, but not entitlement, of spousal support shall be subject to review on the earlier of termination of child support and September 1, 2022".

[7] The Applicant relied on para. 9 of the Divorce Order as outlined by the Arbitrator in the Overview and Background Sections of the Award as follows:

2. [The Applicant] seeks termination of child support and variation of spousal support.

3. [W]hen the academic year ended in June 2018, [the Applicant] unilaterally ceased paying child support. He did not however, adjust the spousal support such that [the Respondent] continued to receive "50 per cent of the net disposable income"[.] [page509]

4. [The Applicant] relies on para. 9 [of the Divorce Order] to the effect that child support is (or ought to be) terminated, such that he is entitled to a [spousal] support review at this juncture.

(Emphasis added)

[8] For reasons that follow, I do not grant leave to appeal.

The Arbitration Award

[9] The Arbitrator heard evidence on June 19 and 20, 2019, and submissions on June 28, 2019, and the Award was released on September 16, 2019. By the time that the arbitration hearing took place and the Award released, the parties' youngest son Thomas was confirmed to start university as anticipated when he finished his "gap year". The Award, at para. 138, ordered the following:

a. Based on [the Applicant's] income of $912,000 and [the Respondent's] income of zero, [the Applicant] shall pay [the Respondent]:

i. child support of $6,785 per month and spousal support of $22,965 per month from July 1, 2018 to August 31, 2018; and

ii. spousal support of $37,556 per month from September 1, 2018 to December 31, 2018.

b. Based on [the Applicant's] income of $1,675,000 and [the Respondent's] income of zero, [the Applicant] shall pay [the Respondent]:

i. spousal support of $69,333 per month from January 1, 2019 to August 31, 2019; and

ii. "summer" child support of $4,093 per month and spousal support of $60,525 per month from September 1, 2019 to December 31, 2019.

c. Based on [the Applicant's] prospective income of $1,300,000 and [the Respondent's] income of $20,000, [the Applicant] shall pay [the Respondent] "summer" child support of $3,193 per month and spousal support of $46,068 per month commencing January 1, 2020 until further agreement or arbitral award.

d. [The Applicant] shall receive credit for all support payments made from July 1, 2018 to date.

e. [The Applicant] shall pay [the Respondent] $316.31 for reimbursement of expenses.

[10] At para. 14 of the Award, the Arbitrator stated that "the operative and relevant paragraphs for my purposes" of the Minutes of Settlement, later incorporated into the consent DivorceOrder, are as follows:

2. The Applicant shall pay child support to the Respondent for the children of the marriage, Oliver Gragtmans, born January 23, 1999 and Thomas Gragtmans, born October 10, 2000, in the amount of $7,449/month commencing October 1, 2017 and on the first day of each subsequent month subject to adjustment to the quantum of support or termination of child support pursuant to this [Divorce Order]. [page510]

3. Child support shall be adjusted if a child attends school away from home to the "summer" formula under the Federal Child Support Guidelines, SOR/97-175.

4. Subject to the continuation of child support for Oliver until June 2018 irrespective of his status, child support shall terminate for a child if he no longer qualifies as a child of the marriage pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Any dispute shall be submitted to [the Arbitrator] for mediation/arbitration. The parties shall share equally [the Arbitrator]'s fees, subject to reallocation on the arbitration at [the Arbitrator's] discretion.

5. The parties shall share the children's s. 7 expenses on a 75 per cent/25 per cent basis with the Applicant paying 75 per cent and the Respondent paying 25 per cent. The parties shall first exhaust the children's RESPs before sharing the children's postsecondary expenses. The parties shall agree in advance in writing to any s. 7 expense. Any dispute shall be submitted to mediation/arbitration by [the Arbitrator] or, if [the Arbitrator] is unable or unwilling to act, the parties shall select an alternate mediator/arbitrator. The parties shall share equally the mediator/arbitrator's fees, subject to any reallocation on the arbitration at [the Arbitrator's] discretion.

6. The Applicant shall pay spousal support to the Respondent in the amount of $13,000/month commencing October 1, 2017 and on the first day of each month subject to adjustment of the quantum of support or termination of spousal support pursuant to this [Divorce Order]. This support shall be taxable to the Respondent and deductible to the Applicant.

7. In June 2018, and by June 1 each year, both parties shall provide financial disclosure to the other pursuant to the Federal Child Support Guidelines. At that time, the parties shall adjust child and spousal support on a go forward basis (with the first adjustment being July 1, 2018) such that the Applicant is paying child and spousal support in an amount to the Respondent that she is receiving 50 per cent of the net disposable income. The support payable by the Applicant shall be based on his line 150 income, subject to each party reserving the right to any legal argument available under the Federal Child Support Guidelines. If the parties cannot agree on the proper amount of spousal or child support based on the Applicant's income, they shall submit the issues to mediation/arbitration by [the Arbitrator]. They shall share equally [the Arbitrator]'s fees, subject to reallocation on the arbitration at [the Arbitrator's] discretion

8. The quantum and duration, but not entitlement, of spousal support shall be subject to review on the earlier of the termination of child support and September 1, 2022 by mediation/arbitration by [the Arbitrator].

(Emphasis added, italics in original)

[11] The Arbitrator imputed some modest income to the Respondent subject to review.

Termination, Suspension, Gap Year

[12] For the Applicant, and consistent with his leave to appeal submissions, the most significant issue before the Arbitrator was whether child support for the parties' youngest child, Thomas, [page511] was terminated during Thomas' "gap year". The Applicant was no doubt wanting a finding by the Arbitrator that the "gap year" or Thomas' deferral of his commencement of university was a termination of child support so that the Applicant might be able to seek a review of spousal support quantum, not entitlement prior to September 1, 2022. That was the thrust of the Applicant's counsel's submissions: that the Arbitrator was required to review the quantum of spousal support and not wait until September 1, 2022. The Applicant maintains that the Arbitrator should have started with a review of spousal support. I find that the Arbitrator was alive to the issue.

[13] The Arbitrator's analysis and determination of the child support issue starts at para. 106 of the Award.He concluded that the "gap year" was not a termination of child support for Thomas and the Arbitrator was alive to the issue. The Arbitrator reviewed Aubert v. Cipriani, [2015] O.J. No. 5088, 2015 ONSC 6103, 70 R.F.L. (7th) 198, and concluded that Thomas' "gap year" did not satisfy the conditions of a transitional period between two education programs. Thomas was therefore not entitled to child support from September 2018 to August 2019, being the period between graduating high school and beginning university. Thomas turned 18 on October 10, 2018, after his high school graduation. Aubert was decided prior to the Family Law Act, R.S.O. 1990, c. F.3 amendments in December 2017.[^1] As a result, parents generally are expected to [page512] support children until the completion of at least one post-secondary degree. This appears consistent with what the Arbitrator found.

[14] In making his determination, the Arbitrator considered Hilhorst v. Amaral, [2018] O.J. No. 3282, 2018 ONSC 3782, in which McLeod J. found that the Applicant was not entitled to child support during the period in which a child took a "gap year" to save money for college and travel to Europe.

[15] The Arbitrator found that Thomas was not immediately independent upon graduating from high school and had not withdrawn from parental control at that time. Thomas was only 17 years old when he graduated from high school, below the age of majority. He continued to live with and depend financially on the Respondent. As a result, the Arbitrator awarded the Respondent child support for Thomas for the summer before the "gap year".

[16] The Arbitrator discusses child support considerations for Thomas in paras. 122-124 of the Award:

122. Given the structure of Thomas' "gap year", he does not satisfy the conditions of a transitional period between two educational programs for [the Respondent] to remain entitled to child support for him.

123. As firmly stated by Justice McLeod in Hilhorst v. Amaral during the child's "gap year" she was working and saving money for college and travel to Europe, the applicant did not seek support for that period, and she was not entitled to it.

124. While I do not find that Thomas is entitled to child support from September 2018 to August 2019 during his year off between high school and university, I also do not find that he was immediately independent and had withdrawn from parental care upon his graduation. He was only 17 at the time and continued to live with and depend financially on [the Respondent]. Accordingly, I am awarding child support during the summer before Thomas' deferral of university and his beginning his "gap year".

[17] Ultimately, at para. 125, the Arbitrator set out the following terms of child support for Thomas:

a. commencing July 1, 2018 to August 31, 2018, child support for Thomas is $6,785 per month;

b. child support is suspended for Thomas from September 1, 2018 to August 31, 2019 during his "gap year";

c. commencing September 1, 2019 to December 31, 2019, child support for Thomas under the "summer" formula is $4,093 per month; and

d. commencing January 1, 2020 until further agreement or arbitral award, child support for Thomas under the "summer" formula is $3,193 per month. [page513]

[18] The Arbitrator, at para. 140 of the Award, asked counsel to advise him if he "inadvertently omitted any relief sought or made any arithmetic errors". I was not made aware of any such advice by counsel.

[19] It is arguable that for Thomas the "suspension" should have only started when he turned 18 on October 10, 2018.

Endorsement of Kristjanson J. denying the applicant's stay of the Arbitration Award

[20] I am not the first Superior Court Judge to consider the Award in this case.

[21] Soon after the release of the Award, on December 3, 2019, the Applicant brought a motion to stay the child and spousal support award pending leave to appeal. Justice Kristjanson heard the stay and denied the request. Her endorsement and reasons were released on January 14, 2020 in Gragtmans v. Gragtmans, [2020] O.J. No. 300, 2020 ONSC 250 (S.C.J.).

[22] The Applicant paid the support ordered by the Arbitrator but had not yet paid the costs, as of my hearing the leave to appeal.

[23] In hearing the stay motion, Kristjanson J. touched upon many of the same issues that I am to consider on this leave to appeal. I refer to paragraphs of Kristjanson J.'s Endorsement that are particularly relevant here [at paras. 12-14 and 16:

The parties specifically chose a leave to appeal process that is limited, and in so doing, bargained for finality[.]

The standard of appellate review on questions of law is correctness. Due to the fact-based and discretionary nature of family law cases, trial judges and arbitrators must be afforded a high degree of deference: Wright v. Holmstrom, 2016 ONCA 360.

In dismissing an appeal from a final support award, Justice McGee in Permack v. Schacter, 2018 ONSC 4114 states at para. 38:

In Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, L'Heureux-Dube J. emphasized the highly deferential standard of review on appeal, with specific reference to family law support cases.

The arbitration award was based, in part, on findings of credibility and significant non-disclosure by [the Applicant]. The Arbitrator made these findings about credibility and [the Applicant's] non-disclosure [in paras. 43-46, 51, 52, 66 and 67 of the Award].

(Emphasis added)

[24] I reviewed the Award's sections entitled credibility (paras. 41-58) and non-disclosure (paras. 59-67) and agree with [page514] Kristjanson J.'s Endorsement and her conclusion, at para. 17: "[The Applicant] essentially argues that leave should be granted because the Arbitrator made errors of law in failing to conduct a [spousal support] review."

Positions of the Parties

[25] The Applicant raises as an error of law asserting that child support terminated under the Divorce Order, since after graduating from high school, the youngest child took a "gap year". He argues that the Arbitrator was therefore required to conduct a spousal support review rather than applying the existing 50:50 Net Disposable Income ("NDI") formula when child support was reinstated after the "gap year."

[26] The Arbitrator found that child support was suspended and not "terminated" in the "gap year" and child support was recommenced when the child started university.

[27] The Arbitrator held, at paras. 128 and 129 of the Award:

As both parties agree Thomas is entitled to "summer" child support commencing September 1, 2019, I do not agree that a review under para. 9 [of the Divorce Order] has been triggered. Child support has only been suspended during Thomas' "gap year", not terminated.

Accordingly, this is not a de novo hearing where I would be free to take an entirely fresh look at the situation. Here, I need not consider the plethora of factors to make a finding on appropriate amount and duration of support. I leave that to a review on the earlier of child support actually terminating or September 1, 2022, the date the parties anticipate would be the appropriate time for a fresh look at the parties' financial and other circumstances.

(Emphasis in original)

[28] The Applicant submits that the Arbitrator made the following errors of law:

-- in determining the Applicant's income for support and calculating the appropriate amount of child and spousal support;

-- in failing to conduct a spousal support review under para. 9 of the Divorce Order despite having determined that child support ended in September 2018; and

-- by calculating the amount of spousal support based on a 50:50 NDI split using the combined child and spousal support formula provided for in the Divorce Order for a child support review, not a spousal support review, despite having found that no child support was payable.

[29] The Respondent submits the following:

-- the parties chose the narrowest of appeal rights under s. [page515] 45(1), being a question of law, with leave, and in doing so the parties "bargained for finality"; and

-- the Arbitrator's alleged errors are with respect to his calculation of the Applicant's income and these errors, if they are errors, are questions of mixed fact and law, and are therefore unappealable.

[30] The Applicant's counsel submitted that the request to review spousal support under para. 9 of the Divorce Order, was based on his assertion that the child support for both children had been terminated. The Applicant relied on what he submits was his success at arbitration in having child support terminated for Thomas during Thomas' "gap year". According to the Applicant, the Arbitrator's decision that child support for Thomas was "suspended" during the "gap year" was in fact a termination of the Applicant's child support obligations. Per para. 9 of the Divorce Order, the Applicant is entitled to a de novo spousal support review upon the earlier of the termination of child support or September 1, 2022.

[31] The Respondent sought to fix the proper amount of spousal support pursuant to para. 7 of the Divorce Order that provided child and spousal support to be adjusted appropriately resulting in sharing the NDI of the parties 50:50.

Analysis

[32] The Applicant's major focus on this leave request to be granted leave to appeal is his assertion that the Arbitrator erred in determining, under paras. 4, 7 and 9 of the Divorce Order, that child support for Thomas was "suspended" and not terminated during the "gap year."

[33] The Applicant argues that when child support for Thomas was "suspended" during the "gap year", it was terminated, and therefore, under paras. 4, 7 and 9 of the Divorce Order, the Applicant was entitled to a de novo review of spousal support at the time of the arbitration.

[34] The Applicant argues that the option to suspend child support is not a term that appears in the Divorce Order, which contemplates only payable child support or termination of child support. In oral argument, Applicant's counsel pressed that "suspension" of child support is a concept alien to child support jurisprudence. The Respondent submits that the question of child support for Thomas is a question of mixed fact and law given the highly fact-specific analysis conducted by the Arbitrator that forms paras. 106-124 of his Award. [page516]

[35] As paras. 128-129 of the Award make clear that for the Arbitrator, suspension and termination of child support are distinct concepts, and give rise to different support obligations under the Divorce Order. By contrast, it appears that in the mind of the Applicant, they are one and the same.

[36] As the Arbitrator noted, at para. 120 of the Award, "[b] oth the Divorce Act and the Family Law Act provide that child support is payable for a child under the age of majority", so the assumption for Thomas was that child support would be ongoing, as Thomas had not yet reached the age of majority at the time of the arbitration.

Legal framework

[37] The leading case on classifying legal issues as questions of law, fact or mixed fact and law is Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, [1996] S.C.J. No. 116 ("Southam"). In Southam, the Supreme Court of Canada commented, at para. 35, "[b]riefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests".

[38] The question in this matter is therefore whether, if the Arbitrator erred, with respect to identifying the correct legal test (an error of law), or correctly identified the legal test but erred in applying the test to the facts (an error of mixed fact and law).

[39] According to the Supreme Court in Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 S.C.R. 633, [2014] S.C.J. No. 53, 2014 SCC 53, at para. 51 ("Sattva"), in its decision in Southam, the Supreme Court emphasized that "the degree of generality (or 'precedential value') [is a] key difference between a question of law and a question of mixed fact and law. The more narrow the rule, the less useful will be the intervention of the court of appeal."

[40] The reason for drawing this distinction between questions of law and questions of mixed fact and law is policy-based. It is "to limit the intervention of appellate courts to cases where the results can be expected to have an impact beyond the parties to the particular dispute": Sattva, at para. 51 (emphasis added). This "reflects the role of courts of appeal in ensuring the consistency of the law, rather than in providing a new forum for parties to continue their private litigation": Sattva, at para. 51.

[41] Consequently, another consideration to be kept in mind is whether the alleged error has a "degree of generality" or "precedential value" that makes it relevant to matters outside the instant case. This case and the particulars of the Divorce Order [page517] were specific to these parties and their children, including the requirement to return to the same Arbitrator.

[42] I find that the many unique aspects of this case would have little if any impact beyond this case.

[43] The consent Divorce Order arose from Minutes of Settlement entered into by the parties at the mediation stage. Unfortunately, the incomes relied on for the child and spousal support were not included in the Divorce Order.

[44] In the material filed for this leave request the Applicant filed a copy of his tax reassessment for tax year 2016 showing a line 150 income of $632,227 and a refund of $7,261.72.

[45] For tax year 2017, the Applicant was reassessed resulting in line 150 income of $871,018 and a refund of $8,119.92. The tax reassessment further explained that the Applicant was allowed a spousal support deduction of $133,224.

[46] For tax year 2018, the Applicant's notice of assessment had a line 150 total income of $972,276. I note that the Arbitrator imputed income of $912,000 for 2018 in the Award. The tax assessment further explained that the Applicant was allowed a spousal support deduction of $117,306.

Did the arbitrator err in determining the applicant's income for support and calculating the appropriate amount of child and spousal support?

[47] The Arbitrator received little, if any, assistance from the Applicant in determining his income. The Arbitrator devoted many pages and paragraphs dealing with the Applicant's income, his lack of disclosure and his credibility. I reference the following paragraphs of the Award [at paras. 21-26, 32 and 40]:

[The Applicant's] position

[The Applicant] is employed by Colliers International as a sales representative in commercial real estate. His salary is commission-based. He says his income for support purposes ought to be based solely on his employment income.

[The Applicant] adds emphatically that any income Canadian Realty Corporation ("CRC"), a company solely owned and controlled by him, earns is corporate income and not available to him for support purposes as that would defeat the corporation's objectives, namely long-term investment and re-investment for capital growth. [In a footnote the Arbitrator noted: "I have italicized 'corporate' and 'corporation' to demarcate the line [the Applicant] says exists between CRC and its underlying entities and himself, a distinction [the Arbitrator] find[s] to be illusory."] [The Applicant] notes this is consistent with the use of similar investment vehicles owned by one (in several instances, [the Respondent]) or both of the parties during the marriage.

[The Applicant] asks that [the Arbitrator] determine ... the appropriate amount of child and spousal support as of September 1, 2019, based on his [page518] adjusted Line 150 income, possibly averaged over three years, with no imputation of additional income.

[Applicant's counsel] says "this case is not about disclosure... but whether or not [the Applicant's] income for support purposes should be based on his commission income from Colliers only, . . . or if any pre-tax corporate income from [the Applicant's] real estate investment company should be attributed to him for support purposes."

[Essentially the Applicant and his counsel submitted that] "It would be inappropriate and antithetical to their retirement savings plans to pierce the corporate veil."

[The Applicant] maintains that as of June 2018, the children's circumstances changed such that child support terminated, and, as a result, spousal support was subject to review.

[The Respondent's] position

[The Respondent argues] that it was only when [the Applicant] "was questioned on March 21, 2019 that he disclosed" that in late 2018, a subsidiary of CRC, Portland Adelaide Developments Inc. ("PADI"), sold its assets with a gain of approximately $16,000,000; and CRC charged a consulting/transaction fee to PADI of $362,000 plus H.S.T. for a total of $409,060, the concealment of which [the Respondent] calls "a fundamental breach of [the Applicant's] obligations to make full, frank and up to date disclosure."

[The Applicant's] reply

40. d. [The Applicant] wasn't obliged either to provide an income report or call his accountant . . . to give evidence, . . . [the Respondent] was free to call him if she thought it important or relevant;

e. [The Arbitrator] shouldn't impute income to [the Applicant] who is amassing corporate income for retirement purposes.

(Italics in original, bold emphasis added)

[48] In paras. 41-58 of the Award, the Arbitrator discusses credibility:

I find that [the Applicant's] evidence lacks overall credibility.

[The Applicant] was . . . argumentative, wanting to ensure his self-serving points were made but refusing . . . to answer questions, deferring to knowledge his accountant(s) have but that he couldn't acknowledge or affirm. The evidentiary fly in this ointment is that I didn't hear from either accountant. [page519]

My main difficulty in accepting his evidence is his insistence that as the operating mind of CRC, he could not draw on his corporate income because of the corporation's business mandate or purpose.

In fact, I find there is absolutely no constraint on [the Applicant's] use of his corporate investment funds as he wishes except any constraint he chooses to impose on himself, which, in turn, occasions a corresponding detriment to [the Respondent]. Although he professed otherwise, this is inescapably and unerringly known by [the Applicant], a serious evidentiary failing in my view.

(Emphasis in original)

[49] In paras. 59-67 of the Award, the Arbitrator discusses disclosure obligations:

It is trite law that a party's accurate and comprehensive disclosure obligations are constant, mandatory and strict. There is scant, if any, room for failure or omission. Even inadvertent failure may have consequences, in costs if nothing else.

Although in relation to the striking of pleadings, in Manchanda v. Thethi, 2016 ONCA 909, 84 R.F.L. (7th) 374, at para. 13, the Court of Appeal affirmed this principle this way:

[T]he most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing. In 2015, Family Law Rule 13 was amended to emphasize a party's financial disclosure obligations. A party's non-compliance must be considered in the context of this strict financial disclosure obligation.

As if more were required along this line of authority, in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 34, the Supreme Court of Canada . . . weighed in on the disclosure obligations in the oft-quoted statement, equally applicable to support claims: "Non-disclosure . . . is the cancer of matrimonial . . . litigation."

Here, however, neither party need resort to the statute or the case law, as they provided for the requisite disclosure in their Divorce Order, quoted earlier.

[Respondent's counsel] argues that without proper disclosure from [the Applicant], including an income report, [the Applicant] has put me in the difficult position of having to impute income without having all the facts.

While I agree with [Applicant's counsel] that there is no obligation, statutory or otherwise, for a support payor to produce an income report, where a party's financial circumstances are complex, as here, an income report may well be an essential tool to assist the court.

On balance, however, I find I really do not require an income report from [the Applicant] as the disclosure actually made from income tax returns and other evidence elicited or tendered leaves me in a solid position to determine [the Applicant's] income for support purposes.

I might add that I find the evidence recapped by [Respondent's counsel] in the section entitled "[the Applicant's] Deceit" in [the Respondent's] Closing Submissions, not only telling but troubling. [page520]

It has all the hallmarks of deliberate avoidance of relevant information and rather stark non-disclosure. At the very least, counsel ought not have had to ferret out the nature, extent and timing of the Portland Adelaide transaction, a transaction that garnered [the Applicant] approximately $8,000,000 in net proceeds of sale.

[50] Under the section entitled "Income analysis and determination", the Arbitrator explains, at para. 68 of the Award, how he calculated the Applicant's income starting with his line 150 income but that his inquiry did not end there, "especially as I am satisfied that this does not represent [the Applicant's] true income" (emphasis in original).

[51] The Arbitrator considered all the issues of law and fact raised by the Applicant and explained his acceptance or rejection of each.

Did the Arbitrator err in failing to conduct a spousal support review under para. 9 of the Divorce Order in light of Thomas' deferral of university to September 2019?

[52] The Arbitrator did not err in not conducting a spousal support review after having determined that child support was not terminated. He was alive to the issue. A plain reading of the Divorce Order provided a review of spousal support quantum, not entitlement, when Thomas finishes his first university degree anticipated for September 1, 2022. Until then, the parties were to provide disclosure each June 1 pursuant to the Federal Child Support Guidelines, SOR/97-175 with the first adjustment being July 1, 2018 such that the Respondent is receiving 50 per cent of the NDI. Each party reserves the right to advance any legal argument available under the Federal Child Support Guidelines. The onus was on the Applicant to provide all the disclosure necessary to have a judge, an arbitrator and the Respondent be in a position to determine his income for child and or spousal support obligations. The Applicant providing line 150 disclosure is not enough and he had the obligation to provide disclosure of all his corporations, their financial statements and corporate tax filings. It was not for the Respondent and her counsel to figure things out.

[53] While the Applicant pleads correctly that suspension of child support is not specifically mentioned in the Divorce Order, the arbitration took place in 2018, well before the arrival of September 1, 2022, so the first trigger (child support being terminated) for a spousal support review is not applicable. A correct determination as to whether a support review was triggered under para. 9 of the Divorce Order therefore required the Arbitrator to determine whether child support was terminated for Thomas during the "gap year". [page521]

[54] The Applicant argues that the Arbitrator committed an error in law because he failed to understand the legal requirements of paras. 4, 7 and 9 of the Divorce Order. When read together, those provisions required the Arbitrator to make a finding as to whether child support for Thomas was terminated during the "gap year". The correctness of a conclusion on spousal support under para. 9 is therefore contingent upon whether child support was payable or not. I find that the Arbitrator did make a determination with respect to termination. At para. 128 of the Award, he says explicitly that Thomas' child support was "not terminated".

[55] At para. 125(b) of the Award, the Arbitrator uses the language of "suspended" as opposed to termination/non-termination. The Award is clear that "suspension" of child support is equivalent to "non-termination" of child support for the purpose of the spousal support review analysis under para. 9 of the Divorce Order.

[56] Consequently, I disagree with the Applicant that the Arbitrator found Thomas' child support during the "gap year" to be terminated. I agree with the Arbitrator's conclusion.

[57] The Arbitrator therefore did not commit an error of law in concluding that the Applicant was not entitled to a de novo spousal support review under para. 9 of the Divorce Order.

[58] The Arbitrator correctly understood that the analysis of spousal support under para. 9 of the Divorce Order required him to determine whether child support for Thomas was terminated or not. He made that determination.

[59] Justice Kristjanson touched squarely on this issue in her Endorsement. Her Honour found, at para. 20 of her Endorsement, that "[m]any cases have found that a break in attending school for a 'gap year' does not automatically terminate entitlement to child support". Her Honour suggests, and I agree, that this is a "highly fact-specific analysis". Most importantly, she found that this is "a weak, although not [a] frivolous" ground of appeal.

[60] Showing deference to the Arbitrator dovetails with the gatekeeping role of judges hearing leave applications for family law arbitral awards. In Petersoo v. Petersoo, [2019] O.J. No. 3868, 2019 ONCA 624, at paras. 35-37, the Court of Appeal for Ontario cited a line of jurisprudence indicating that:

Mediation/arbitration is an important method by which family law litigants resolve their disputes. Indeed, the courts encourage parties to attempt to resolve issues cooperatively and to determine the resolution method most appropriate to their family. The mediation/arbitration process can be more informal, efficient, faster and less adversarial than judicial proceedings. These benefits are important with respect to parenting issues, which require a consideration of the best interests of children. The decision of an arbitrator, particularly in child related matters, is therefore entitled to significant [page522] deference by the courts: see Patton-Casse v. Casse, 2012 ONCA 709, 298 O.A.C. 111, at paras. 9, 11.

The essence of arbitration is that the parties decide on the best procedure for their family. Although the family law of Ontario must be applied, the procedures on an arbitration are not meant to mirror those of the court[.]

Here the parties decided that an appeal would only be based on a question of law. As this court stated in Alectra Utilities Commission v. Solar Power Network Inc., 2019 ONCA 254, 145 O.R. (3d) 481, at para. 20:

The starting point in exercising the court's role under the Arbitration Act, 1991 is the recognition that appeals from private arbitration decisions are neither required nor routine.

(Emphasis added)

[61] As Petersoo makes clear, the courts perform a gatekeeping role in applications for leave to appeal family law awards. Courts are not to interfere lightly in the results of private arbitrators, particularly in matters such as this where the parties "bargained for finality" using narrow appeal rights.

[62] The Divorce Order appears to have sought predictability. The parties and counsel had confidence in the same Arbitrator going forward unless he was unwilling or unable to act at which time, they agreed that they "shall select an alternate mediator/arbitrator".

[63] Now that the Applicant paid the outstanding support order as a result of Kristjanson J.'s denial of the Applicant's stay motion, and I assume continues to do so, I point out that the Award at para. 138 summarizes the child and spousal support award and for the period commencing January 1, 2020, the amount is fixed until "further agreement or arbitral award" (emphasis added).

[64] It may therefore appear be open to revisit the quantum of child and spousal support, consistent with the Divorce Order and disclosure requirements, for the period commencing January 1, 2020, based on up to date evidence related to the status of the children and incomes of the parties. The disclosure obligation requires more than line 150 income and should include disclosure of any corporate or partnership interests and income from all sources. The parties have a legal obligation to do so.

[65] The Divorce Order continues to apply and has not been varied.

Conclusions

[66] The Applicant prematurely stopped paying child support and sought to invoke para. 9 of the Divorce Order prematurely to trigger a review of spousal support prior to 2022. [page523]

Disposition

[67] For the reasons outlined above, the leave to appeal is not granted.

[68] If costs are not agreed to, the parties shall exchange submissions on a timeline they agree on, but to be completed within 45 days of the release of this endorsement.

Application dismissed.

Notes

[^1]: Prior to the December 2017 Family Law Act amendments, s. 31 under the heading "Obligation of parent to support child" read:

31(1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

After December 2017, [s. 31](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) of the [Family Law Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) reads:

31(1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,

(a) is a minor;

(b) is enrolled in a full-time program of education; or

(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.