DECISION ON RULE 25(19)(b) MOTION

P. BOUCHER J.

Background

[1] On May 27, 2022, I released a decision in which I determined, among other things, the parties’ incomes and the start dates for and the quantum of child support and spousal support.

[2] The applicant delivered a notice of motion dated June 02, 2022, in which she asks me to correct mathematical errors she believes I made when calculating the quantum of child and spousal support. Her position is that I intended to base support on the respondent’s net operating cash available to him. She submits that I must therefore gross-up the $154,350 of pre-tax income to $177,502, resulting in a Guideline income of $171,517. She submits that I intended to use the latter figure to determine child and spousal support payable by the respondent.

[3] The respondent opposes the motion, suggesting that I did not make any mathematical errors in my determination of the quantum of support. He points to several parts of my decision where I determine the pre-tax income of Seguin Hardware available for distribution to the respondent’s holding company. He provided for this motion a letter dated August 26, 2022, from his accountant, Michael Lalande, in which the accountant explains two ways the figures can be used with the software. Michael Lalande’s calculations result in child support of $1,737 and spousal support of $2,508 per month. In my decision I arrived at monthly child support of $1,692 and spousal support of $2,170.

[4] The applicant counters in oral argument that this letter from Michael Lalande is not properly admissible. Although I did not use his accounting viewpoint, I found the letter instructive about how to properly input the taxable Canadian dividend income (other than eligible) that I myself had found. In this respect, the letter amounted to nothing more than submissions of counsel rather than evidence.

The Law

[5] Rule 25(19)(b) of the Family Law Rules provides the court with the discretion to change an order that contains a mistake. This does not grant authority to change alleged legal errors. In addition, arguments going to the correctness of the order or raising analytical errors must be made to an appellate court (see Gray v. Rizzi 2011 ONCA 436; Berta v. Berta, 2021 ONSC 2823 at para. 15).

Analysis

[6] The parties pointed to various portions of my decision in support of their positions on this motion. Their interpretations of my decision differ. The applicant suggests I intended to gross-up the $154,350 of pre-tax income. The respondent reads my decision as saying the $154,350 of pre-tax income would be taxed in the hands of Seguin Hardware and the balance would be paid as a dividend to his holding company.

[7] The respondent interpreted my decision correctly. It was not my intention that the pre-tax income would be grossed up in the fashion suggested by the applicant in this motion. As I explained after argument, through inadvertence I neither printed nor saved my DivorceMate calculation. However, I clearly made an error while using the DivorceMate software because I intended the $154,350 to be treated as taxable Canadian dividends (other than eligible). The amount of monthly child and spousal support I ordered differs by $338 from the examples provided by the respondent in his affidavit. He conceded in oral argument that if his interpretation of my reasoning is accurate, which it is, then I have jurisdiction under r. 25(19)(b) to correct my inputting error.

[8] I find that the error I made with the software fits within what is contemplated by r. 25(19)(b) and I am exercising my discretion under that rule to correct my error. I accordingly input in the software:

a. For the respondent, $154,350 of taxable Canadian dividends (other than eligible) which is then grossed up by the software to attribute Guideline income of $150,464;

b. For the applicant, a total of $40,459 of income; and

c. The details of the parenting arrangement set out in my decision.

[9] With this correction made I arrive at a monthly child support obligation of $1,719 and a high-end spousal support obligation of $2,478.

[10] I also noticed I made a typographical error when referring to paragraphs 68(a) and (b) in paragraphs 70(c)(vii) and (viii). Although I do not believe this was raised by the parties, I will amend this error as well.

Conclusion

[11] For these reasons my decision dated May 27, 2022, is corrected as follows:

a. The amount of child support in paragraph 70(c)(vii) is set at $1,719 per month;

b. The amount of spousal support in paragraph 70(c)(viii) is set at $2,478 per month; and

c. The references to paragraphs 68(a) and (b) in paragraphs 70(c)(vii) and (viii) are changed to paragraphs 70(a) and (b)

[12] I understand counsel previously sought permission to extend the time to deliver costs submissions pursuant to my decision dated May 27, 2022. I recall seeing the request but could not locate an order in the file. Out of an abundance of caution, I am ordering that the timelines for costs set out in my May 27, 2022 decision begins with the release of this decision. The parties may add their costs submissions for this motion and may accordingly increase the length of their submissions to three pages in total, not including any offers to settle and bills of costs.

The Honourable Mr. Justice P.J. Boucher

Released: December 6, 2022

COURT FILE NO.: FS-22603-19

DATE: 2022-12-06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Marie Therese Chantal Courchesne

Applicant

– and –

Joseph Paul Luc Seguin

Respondent

DECISION ON RULE 25(19)(b) MOTION

P. Boucher J.

Released: December 6, 2022

Courchesne v. Seguin, 2022 ONSC 6775

Case Summary

DECISION ON RULE 25(19)(b) MOTION

Background

The Law

Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues