Court File and Parties
Court File No.: FS-23-164-00AP (Brantford) Date: 2024/02/21 Ontario Superior Court of Justice
Between: Amber Tiveron, Respondent on Appeal And: Eric Collins, Appellant
Counsel: Katherine Robinson, appearing as agent for the Respondent on Appeal. Appellant is Self-Represented.
Heard: December 18, 2023
The Honourable Justice I.R. Smith
Reasons for Judgment
1. Introduction
1The appellant, Mr. Collins, appeals from the interim temporary order of Justice K.A. Baker of the Ontario Court of Justice (explained in reasons dated June 8, 2023), that the appellant pay child support for the parties’ children based on an imputed income of $59,824 in the guideline (the Child Support Guidelines, O. Reg. 391/97) amount of $1,188 per month, retroactive to December 21, 2022. Baker J. further ordered that the appellant pay arrears in child support arising from her order at the rate of $400 per month.
2The appellant also moves to introduce fresh evidence.
2. Background
3Mr. Collins (the “appellant”) and the respondent on appeal, Ms. Tiveron (the “respondent”), have three children together. They separated in late 2012 and the various issues between them were litigated and resolved with the 2014 judgment of Zisman J. found at 2014 ONCJ 574. In that judgment, the court made various orders including many which were made on consent. One of the orders made on consent was that the appellant would pay child support based on an imputed annual income of $30,000. The appellant is a long-distance trucker who operates his business as such through a company he owns and controls.
4The appellant appealed unsuccessfully to this court (see 2016 ONSC 2451) and to the Court of Appeal (see 2017 ONCA 462), alleging bias on the part of Zisman J., among other things, but not attacking the orders made respecting child support.
5In 2022, the respondent launched a motion to change the appellant’s parenting time and child support obligation. In the context of that motion to change, the respondent brought a motion for an interim order for increased child support based on an increase in the appellant’s income. That interim motion was heard by Baker J. and resulted in the orders now under appeal.
6Before Baker J., the respondent took the position that the appellant’s income should be imputed to be $59,824. The appellant took the position that his income for child support purposes should be his reported 2021 taxable income ($36,296). That taxable income was arrived at following deductions from his T4 income ($48,000) for meals purchased while working. The respondent argued that the entire amount claimed for meals should be added back into income for child support purposes. She also argued that the portion of the appellant’s rent paid for by his company should also be added to his line 150 income, as should a portion of his vehicle expenses to reflect personal use.
3. The decision below
7Justice Baker reviewed the law respecting deductions and the calculation of income for child support purposes (see paras. 16 – 23 of her reasons, citing Favero v. Favero, 2013 ONSC 4216), and respecting the issue of onus where income has been imputed (see paras. 24 – 25, citing Trang v. Trang, 2013 ONSC 1980). With respect to the latter issue, she concluded that the onus was on the appellant given that income had previously, in 2013, been imputed to him and given that he was now taking the position that income should not be imputed, but should instead be based on his 2021 reported income. As Justice Pazaratz concluded in Trang, supra, at para. 40 – 60, when income has previously been imputed, it is not sufficient for the party to whom income has been imputed to argue later that his income should be based on declared income without first grappling with the reasons for the original imputation and any material changes since the time of that imputation.
8With respect to expenses for meals, Baker J. found (at paras. 35 – 46) that the records provided by the appellant were inadequate and inconsistent, and therefore lacked credibility. She noted that the self-employed have an obligation to lead comprehensive records of expenses (citing Meade v. Meade, 31 R.F.L. (5th) 88 (Ont. S.C.J.)) and that the appellant had failed to do so here, thereby failing to fulfil his onus. She concluded that the entirety of the claimed meal expenses should be added back into income. In the course of coming to this conclusion, Baker J. noted (at para. 32) that a different result might be achieved following the trial of this matter, where the appellant might testify and be cross-examined.
9With respect to the issue of rent paid by the appellant’s corporation, Baker J. noted (at para. 47) that the rent was “being paid in pre-tax dollars. It should be added back to income and should be grossed up to reflect the tax effect.”
10Turning to the question of vehicle expenses, 100% of which the respondent was deducting from income, Baker J. concluded (at para. 48) that it is “only logical” to conclude that some of those expenses related to the appellant’s personal use of the vehicle and, as the appellant had not offered evidence of what percentage of his use of the vehicle was personal, she accepted the respondent’s submission that 20% was a reasonable estimate to be added back to income and grossed up.
11All told, after adding back the amounts for meals, rent and vehicle expenses, Baker J. determined (at para. 49) that $59,924 was a fair representation of the appellant’s disposable income.
4. Grounds of appeal, the motion to adduce fresh evidence, and the position of Ms. Tiveron
12In his factum, Mr. Collins raises 10 grounds of appeal. Nine of those grounds are related to alleged errors in Justice Baker’s conclusion that income should be imputed to him as described above. A tenth ground of appeal alleges bias or reasonable apprehension of bias on the part of Justice Baker. The appellant also seeks to lead fresh evidence which he says establishes that the respondent and her counsel have perpetrated a fraud on the court.
13The respondent argues that the appeal should be quashed given the appellant’s failure to comply with the temporary order and prior costs awards. She also argues that the appellant has failed to meet the high standard applied to appeals of temporary orders. In any case, she submits, the grounds of appeal are without merit and the fresh evidence is not admissible.
5. Discussion
5.1 Should the appeal be quashed?
14There is no doubt of the jurisdiction of the court to quash an appeal in the face of serial non-compliance with support, costs, and other orders (Cosentino v. Cosentino, 2017 ONCA 593, at para. 8; Abu-Saud v. Abu-Saud, 2020 ONCA 824, at paras. 4, 8, 11 – 13).
15Here, Mr. Collins has failed to pay costs awarded against him. In addition, Mr. Collins failed to abide by Justice Baker’s temporary order for support and arrears has not been compliant with the final child support order made in 2014. Moreover, Mr. Collins has a history of ill-advised motions and appeals. Zisman J. ordered in 2014 that Mr. Collins not be permitted to commence any further motion without leave of the court. That decision was upheld on appeal in this court (Tiveron v. Collins (ONSC), supra, at paras. 24 – 26) and again in the Court of Appeal (Tiveron v. Collins (ONCA), supra, at paras. 14 – 17).
16While I am inclined to agree with the respondent that these facts support a conclusion that this is an appropriate case in which to quash Mr. Collins’ appeal, given that the request to quash was heard at the same time as the appeal, and given my conclusions of the remaining issues, it is unnecessary to make that order.
5.2 Appeal of an interim order
17Justice Baker’s order is a temporary one intended to govern until the trial where the respondent’s motion to change will be considered in full. In the short but oft-quoted judgment in Sypher v. Sypher (1986), 2 R.F.L. (3d) 413 (Ont. C.A.), Zuber J.A. wrote as follows of appeals in these circumstances (emphasis added):
At the outset, it is appropriate to observe that interim orders are intended to cover a short period of time between the making of the order and trial. I further observe that interim orders are more susceptible of error than orders made later; but the purpose of the interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial.
At trial after a full investigation of the facts a trial judge may well come to the conclusion that a substantially different order should be made. I gather that there is a fear that the interim order may acquire such an aura of propriety that there will be a tendency to repeat the terms after trial. This is not so. The trial judge's discretion is unfettered and his judgment will be rendered on a full investigation of the facts.
Having those principles in mind then, an appellate court should not interfere with an interim order unless it is demonstrated that the interim order is clearly wrong and exceeds the wide ambit of reasonable solutions that are available on a summary interim proceeding. In my view the appellant in this case has not demonstrated that this order falls outside of that ambit and the appeal must be dismissed.
18The Manitoba Court of Appeal expressed a similar view in Conde v. Conde, 2018 MBCA 135, at para. 15 (emphasis added):
This Court has stated often that appeals of interim orders are to be discouraged and that the best place for review is at the trial of the matter. An appeal is not a re-hearing. The father’s appeal raises issues that deal with discretionary decisions by the motion judge that are to be reviewed by this Court on a deferential standard of review, such that this Court cannot intervene unless the motion judge made an error in the legal principles that he applied, misapprehended the facts or arrived at an unjust decision (see Cottyn v. Anderson, 2014 MBCA 48, at para 7).
19I turn then to the grounds of appeal with these principles in mind.
5.3 Alleged bias or reasonable apprehension of bias
20Mr. Collins’ alleges that a review of the transcript of the hearing before Justice Baker and of her conclusion reveals bias or a reasonable apprehension of bias against him. The nub of this argument appears to be that Justice Baker concluded that the Justice Zisman had imputed income to Mr. Collins following a trial where the issue had been contested when, in fact, that part of Justice Zisman’s order was made on consent.
21Having reviewed the transcript, I agree with the respondent that there is absolutely no basis upon which to conclude that Justice Baker was anything but polite, even-handed, professional, and fair (in other words, completely judicial) during the hearing of this matter. The fact that she drew a conclusion contrary to Mr. Collins’ position is not evidence of bias. As the respondent points out, for authority for this proposition, one need look no further than the judgment of this court in this very case in 2017. There, Wilson J. concluded as follows, rejecting Mr. Collins argument that Zisman J. had been biased: “That the trial judge did not accept the version of the facts and arguments suggested by the Appellant is not evidence of bias” (see Tiveron v. Collins (ONSC), supra, at para. 12). The Court of Appeal quoted Justice Wilson with approval on this point and also concluded that Mr. Collins’ allegation of bias against Wilson J. was similarly devoid of merit (Tiveron v. Collins (ONCA), supra, at paras. 7 – 8).
22This ground of appeal fails.
5.4 Alleged errors in the decision to impute income
23The remaining grounds of appeal, most of them repetitive or at least over-lapping, relate to the imputation of income to the appellant by Justice Baker. None of the grounds has merit in my view. Nothing argued by the appellant establishes that Baker J. was clearly wrong and exceeded the wide ambit of reasonable solutions that were available to her on an interim proceeding (see Sypher v. Sypher, supra).
24Several of the grounds of appeal, which I deal with here together, allege that Justice Baker made errors in her understanding of the law and evidence in coming to the conclusion that income should be attributed to the appellant for the reasons she gave. As a general matter, Mr. Collins has made the same or similar arguments before me as he did before Justice Baker, referring in large measure to the same statutory provisions and cases. I see no error in the reasons of Justice Baker, especially no error in her understanding of the relevant provisions nor in the way she distinguished the cases upon which the appellant relies, especially bearing in mind the deferential standard to be applied when considering an appeal from an interim order.
25While Mr. Collins argues that the decision below was “clearly wrong” because Justice Baker failed to advert to portions of the evidence or failed to address certain provisions of the Child Support Guidelines or the Income Tax Act, R.S.C. 1985, c. 1, my review of her reasons suggests that she did advert to all the relevant evidence, that she did advert to and understand correctly the relevant sections of the relevant legislation, that it is the appellant who has misunderstood the relevant law, and that the most important factors generating the conclusion Baker J. reached were (a) that the appellant’s records of his meal expenses were poor, (b) that his position respecting personal use of his vehicle was unreasonable, and (c) that the fact that his corporation pays a portion of his rent is an obvious personal benefit not accounted for in his declared income. In each case, these conclusions led to the further conclusion that the appellant’s declared income was not the fairest expression of his income for support purposes. These conclusions were all supported on the record and betray no error in law. To the extent that the appellant’s various grounds of appeal make arguments suggesting the contrary, they are dismissed. Justice Baker’s interim conclusions on these points represent a reasonably acceptable solution to a difficult problem until trial, where the appellant will be free to lead evidence and make argument on all these points.
26It is necessary to deal with only two more grounds of appeal more specifically.
27First, it is argued that Justice Baker erred by concluding that Justice Zisman had imputed income to Mr. Collins when in fact that income had been agreed to by the parties and ordered on consent. In my view, the record shows that the parties consented to impute income to Mr. Collins (see Tiveron v. Collins (ONCJ), supra, at paras. 22, 27, and 179(37)). It matters not either that this conclusion was reached on consent or that the judgment of Justice Zisman uses the word “attributed” as well as the word “imputed.” As Justice Baker found, in the circumstances of this case, those words are synonyms. This ground of appeal fails.
28Second, the appellant submits that Justice Baker failed to take into account the most recent evidence of his income and expenses. I cannot accept this argument. The judgment below was based on the appellant’s then most recent tax return. His company’s then most recent financial information was in the record, and it is clear from Justice Baker’s reasons and from the transcript of the proceedings that she was familiar with the record and reviewed it carefully, including the “last minute amendments” to the appellant’s financial statements (see para. 43 of her reasons). There is no merit to this ground of appeal.
5.5 The proposed fresh evidence
29The appellant has sworn an affidavit which he tenders as fresh evidence. Attached as an exhibit to that affidavit is a copy of a notice filed by the respondent on July 6, 2023 (i.e., after the release of Justice Baker’s reasons), in which she gives notice to the appellant and the court that she is withdrawing her motion to change on the limited issue of retroactive child support from prior to July 1, 2022. The appellant takes the position that this change in position represents a significant change from the position taken before Baker J. and that the respondent and her counsel were engaged in a fraud on Baker J. whom they “flagrantly misled.”
30Even if the position reflected in the notice of withdrawal represents a significant change in the respondent’s position, there is simply no basis upon which to conclude that either the respondent or her counsel were engaged in any dishonesty whatsoever, or that Justice Baker was misled. All that the notice reflects is a change in position.
31In any case, for the purposes of this appeal and Justice Baker’s ruling, the notice of withdrawal is irrelevant. The issue that it addresses was not before Justice Baker. What has been abandoned is a request for the court to deal with retroactive child support prior to July 1, 2022. Justice Baker was not addressing the question of arrears before that date. She was addressing the question of what income should be imputed to the appellant effective December 1, 2022. The withdrawal of a request for arrears for the period ending 5 months prior to that date would have had no bearing whatsoever on the interim motion before Justice Baker.
32The motion to adduce fresh evidence is therefore dismissed.
6. Conclusion and Costs
33For all these reasons the appeal is dismissed.
34I have the respondent’s bill of costs but have received no submissions from the appellant respecting costs. Accordingly, the appellant may serve and file brief submissions (no more than 3 pages) respecting costs within 7 days of the release of these reasons. The respondent’s brief reply submissions (no more than 3 pages), if any, may be served and filed within 4 days of the service of the appellant’s submissions.
I.R. Smith J.
Released: February 21, 2024