Reasons for Decision

Court File No.: FC-02-81-5
Date: 2025/05/13
Ontario Superior Court of Justice
Between:
Lynne La Fontaine, Applicant
-and-
James Brent Maxwell, Respondent

Counsel:
Aaron Franks and Kristy Warren, for the Applicant
Heather Hansen and Lisa Allegro, for the Respondent

Heard: December 16, 2024
Released: May 13, 2025
Justice: Marie-Josée Audet

Introduction

[1] The Appellant (Respondent in the family law proceeding, James Brent Maxwell (“Mr. Maxwell”)), appeals the Arbitration Award of Kathryn D’Artois (“Arbitrator”) dated December 16, 2021, as amended January 31, 2022 (“Arbitration Award”). The Respondent (Applicant in the family law proceeding, Lynne La Fontaine (“Ms. La Fontaine”)) asks that Mr. Maxwell’s appeal be dismissed.

Background Facts

[2] I summarized the relevant background facts in a decision released previously in the context of Mr. Maxwell’s motion to stay the Arbitration Award pending the outcome of this appeal (La Fontaine v. Maxwell, 2023 ONSC 91). I liberally reproduce this summary below.

[3] The parties separated in November 2000 after a 14-year relationship (11 years married). They have three children together, Carter (33), Davis (30) and Sydney (28). When the parties separated, the children were only 8, 6 and 4 years old.

[4] In September 2004, the parties entered into a Separation Agreement which resolved the issues arising from their separation, including parenting, child support, spousal support, and property (the “Separation Agreement”). Pursuant to the Separation Agreement, Mr. Maxwell was required to pay Ms. La Fontaine child support in the amount of $1,500 per child per month, and spousal support in the amount of $3,000 (net) per month. The child support amount was fixed, non-variable and payable until each child reached 22 years of age, as long as they maintained a home in Ms. La Fontaine’s residence. Mr. Maxwell was also required to pay Ms. La Fontaine $158,076.63 as a property settlement, at a rate of $1,501.29 a month.

[5] In 2007, Ms. La Fontaine invoked the dispute resolution clause of the Separation Agreement after Mr. Maxwell failed to abide by its financial terms. When mediation efforts failed, Ms. La Fontaine retained a lawyer and in 2010, filed the Separation Agreement with the Family Responsibility Office (“FRO”) for the purpose of enforcing its support provisions. A court proceeding was also introduced by her in 2011, seeking child support retroactively from 2004 onward, among other relief. In 2012, the parties agreed to have their claims determined by way of a private arbitration process and, in March 2012, they entered into an Arbitration Agreement appointing Ms. D'Artois as the Arbitrator.

[6] It took the parties almost ten years to reach the arbitration hearing due, among other things, to the complexity of the issues raised by the case and Mr. Maxwell’s failure to comply with his obligation to provide full and frank financial disclosure. There was a three-year hiatus during which no steps were taken to advance the case (2013-2016). Ultimately, the arbitration hearing began and was conducted over 23 days between February and April 2021. It was a long and protracted affair which culminated into a 616 page-long Arbitration Award released on December 16, 2021. At the time of the Arbitration Award, the children were 30, 27 and 25, respectively.

[7] In the context of the arbitration hearing, Ms. La Fontaine was seeking to set aside para. 18 of the Separation Agreement, which fixed the amount of child support payable to her at $1,500 per child, per month, non-variable. She was also seeking basic child support retroactive to 2007 (and up to 2018, when the youngest child, Sydney, turned 22), a contribution towards the children’s s. 7 expenses retroactive to 2004, as well as support for Davis from 2016 (the age he turned 22) to the present, and ongoing (para. 469 of the Arbitration Award)[1].

[8] In her decision, the Arbitrator set aside section 18 of the parties’ Separation Agreement on the grounds that it was unconscionable. She then proceeded to determine Mr. Maxwell’s income and child support obligations for all relevant years, going back to 2004, in addition to quantifying outstanding amounts owing by Mr. Maxwell to Ms. La Fontaine in relation to the property provisions contained in the Separation Agreement (which provisions were not set aside).

[9] Ultimately, the Arbitrator required Mr. Maxwell to pay to Ms. La Fontaine the following amounts:

• $99,643.31 in satisfaction of a promissory note;
• $24,912.58 for taxes owed by Ms. La Fontaine to the Canada Revenue Agency;
• $1,647,111 in lump-sum retroactive basic child support for the children for the period of January 2007 to March 31, 2018;
• $151,884 in lump-sum retroactive s. 7 expenses for the children for the period of September 1, 2004, to March 31, 2018;
• $88,173 in lump-sum s. 7 expenses for Davis for the period of March 2014 to the date of the Arbitration Award; and
• $3,000 per month, payable to Ms. La Fontaine, as Mr. Maxwell’s contribution towards Davis’s therapy costs and day to day living expenses, until further varied or until one of the events listed in her Award occurred. Ms. La Fontaine was also ordered to pay $500 per month to Davis as her own contribution to these costs. This award was based on the Arbitrator’s conclusion that Davis had significant health issues and continued to be dependent on his parents for support.

[10] In addition, on January 27, 2022, the Arbitrator released her decision on costs and awarded Ms. La Fontaine $797,694.76.

The Appeal

[11] Mr. Maxwell did not appeal the awards related to property issues made by the Arbitrator and has paid the amounts owing in satisfaction of the promissory note and the debt owing to the Canada Revenue Agency. Although he initially appealed her decision to set aside section 18 of the Separation Agreement, he is no longer contesting that part of the Arbitration Award.

[12] Mr. Maxwell appeals the Arbitrator’s child support and cost awards. He submits that her findings and approach resulted in a punitive application of the caselaw. Specifically, Mr. Maxwell submits that the Arbitrator erred in the following ways:

• In her assessment and determination of his income (under ss. 18 and 19 of the Federal Child Support Guidelines, S.O.R./97-175) (“Guidelines”);
• In her application of the relevant legal principles with respect to making retroactive child support awards and in fixing its quantum, including in relation to child support payable to adult children attending school away from home (ss. 3(2) and 4 of the Guidelines);
• In ordering prospective child support for Davis, at age 27;
• In breaching the rules of natural justice, by denying him a fair hearing and refusing to allow him to call Mr. Gordon Taudien as a witness.

[13] Mr. Maxwell asks this court to replace the decision of the Arbitrator and make an order for retroactive support payable to Ms. La Fontaine in the amount of $400,000, payable in monthly installments of $8,333 per month. Mr. Maxwell submits that this quantum of retroactive support fulfills the objectives of the Guidelines while also balancing the leading case law in respect of retroactive support arrears.

[14] Mr. Maxwell also asks an order vacating the prospective child support order made for Davis, the parties’ adult child.

[15] Finally, he asks that the costs payable to Ms. La Fontaine be reduced to $100,000.

Analysis

Standard of Review on Appeal

[16] It is important to state that the Arbitration Agreement signed by the parties allows appeals without leave only on questions of law or mixed facts and law. Appeals on questions of facts were waived by the parties.

[17] The standard of review in family law matters generally, and with regard to support orders specifically, is highly deferential. An appellate court should not intervene unless it finds a material error, a serious misapprehension of the evidence, or an error of law: Hickey v. Hickey, paras. 10-12; Jean Louis v. Jean Louis, 2020 BCCA 220.

[18] It is settled law that when the appeal engages an alleged error of mixed fact and law, the standard of review is palpable and overriding error unless the judge made some extricable error in principle with respect to the characterization of the legal standard or its application, in which case the error may amount to an error of law, and the standard of review is correctness: Housen v. Nikolaisen, 2002 SCC 33, paras. 8, 10, 37.

Issue One: Did the Arbitrator err in her calculation of Mr. Maxwell’s income for child support purposes?

[19] Mr. Maxwell takes the position that the Arbitrator erred in her calculation of his income by:

• Imputing an incorrect amount of income and personal expenses to him under s. 19 of the Guidelines;
• Failing to set out fully the basis of her calculations of personal expenses imputed to him;
• Attributing to him pre-tax corporate income for a business interest in which he was not the sole owner under s. 18 of the Guidelines;
• Refusing to let his participant expert testify, thus denying him of the ability to counter Ms. La Fontaine’s evidence on the three issues above.

[20] Mr. Maxwell takes issue with the Arbitrator’s imputation of corporate pre-tax income to him pursuant to s. 18, from corporations of which he was not the sole shareholder. In L.M.P. v. M.D.P., 2021 ONSC 3577, para. 58, the court summarized the considerations and questions it needs to consider when determining whether to exercise its discretion to attribute corporate pre-tax income: (1) does the payor have control over dividend declarations; (2) is there a business reason for retaining the earnings; and (3) should the court exercise its discretion and attribute corporate pre-tax income.

[21] The attribution of corporate pre-tax income may be appropriate even where the party does not control the corporation but where, for example, the party is the controlling mind of the corporation or where control is held by a cooperative relative, and there is a past practice of the party receiving compensation: Leitch v. Novac, 2020 ONCA 257, para. 36. To interpret the Guidelines otherwise would allow the payor to avoid their obligations by employing a corporate structure to deprive the children of the support to which they are entitled: Goett v. Goett, 2013 ABCA 216, para. 20.

[22] I find that most of the complaints raised by Mr. Maxwell in relation to the Arbitrator’s determination of his income under s. 18 of the Guidelines have to do with her conclusions on the facts based on the evidence presented to her. For instance, Mr. Maxwell takes objections to the following findings of the Arbitrator:

• Her choice to accept the evidence provided by Ms. La Fontaine rather than the evidence provided by Mr. Maxwell and his expert;
• Her attribution of corporate pre-tax income from certain corporations during years in which their balance sheets reflected an operating deficit;
• Her conclusion that Mr. Maxwell “maintained de facto control” over Max Auto Supply Ltd. from the time the company was restructured in September 2011 until it was sold in April 2014;
• Her conclusion that Mr. Maxwell had not met his onus to establish that Max Auto Supply Ltd. was required to add its pre-tax corporate income to its retained earnings in the relevant years and thus could not distribute any income, when in fact the evidence provided by Mr. Maxwell’s expert had done precisely that;
• Her attribution of pre-tax corporate income from La-Z-Boy for the years 2012, 2014 and 2017, based on her finding that Mr. Maxwell had “failed to establish both that he lacked control to direct the distribution of income from La-Z-Boy and that the banking covenants imposed a barrier to the distribution of income” when in fact, according to him, he and his expert gave detailed evidence confirming same.

[23] These findings of facts were open for the Arbitrator to make based on all the evidence before her and are not subject to appeal. The Guidelines provide wide discretion to impute income as is appropriate in the circumstances of any given case, and I am of the view that the Arbitrator properly exercised her discretion in this case. She was best positioned to weigh and consider all the evidence presented to her during this lengthy arbitration and to determine how much income ought to be imputed to Mr. Maxwell given his many business endeavours and his demonstrated lifestyle. It was entirely open to her to reject Mr. Maxwell’s evidence on any of these issues, and to accept Ms. La Fontaine’s evidence instead.

[24] In relation to the Arbitrator’s application of s. 19 of the Guidelines, Mr. Maxwell’s main issue of contention is that she accepted Ms. La Fontaine’s “lay evidence” about Mr. Maxwell’s credit card expenses, rather than the evidence of the parties’ respective experts.

[25] Once again, Mr. Maxwell is asking the court to weigh the evidence differently than the Arbitrator, which is not the role of an appellate court. It is clear when one reads the Arbitrator’s entire decision on this issue that the Arbitrator did not blindly accept the lay evidence of Ms. La Fontaine over the expert evidence presented by the parties. Indeed, Ms. La Fontaine was seeking to add over two million of “unreasonably deducted business expenses” to Mr. Maxwell for the years 2004 to 2016, whereas the Arbitrator ultimately added roughly 1.3 million.

[26] The Arbitrator preferred some of Ms. La Fontaine’s evidence over that of the other witnesses because she had “lived experience with Mr. Maxwell” and she added that “the fact that there were errors in her summaries [did] not mean that her evidence was not probative, credible, or helpful”. She started from the expert evidence provided Ms. La Fontaine and supplemented it with Ms. La Fontaine’s evidence. The Arbitrator found that Ms. La Fontaine’s review and analysis of Mr. Maxwell’s personal expenses was comprehensive, well-grounded, and credible, and that Mr. Maxwell’s evidence lacked credibility. She rejected the evidence provided by Mr. Maxwell’s expert because she found that he did not perform any independent review, analysis or testing of personal expenses paid by Mr. Maxwell’s company and relied solely on Mr. Maxwell’s representations in that regard. She reached her conclusions as to the amount of expenses to be added to Mr. Maxwell’s income under s. 18 of the Guidelines after having considered all the evidence before her, including Ms. La Fontaine’s evidence in respect of Mr. Maxwell’s lifestyle and the quantum of personal expenses charged to his credit cards which she believed were paid by his corporate entities.

[27] None of these factual findings and evidentiary conclusions are subject to appeal. The determination of a payor’s income is highly factual (Korman v. Korman, 2015 ONCA 578, para. 49), and there is only a narrow scope for appellate review as to the Arbitrator’s determination of Mr. Maxwell’s income pursuant to the Guidelines. Having found no legal error in the Arbitrator’s application of the relevant sections of the Guidelines, it is not open to this court to second-guess the weight given to various parts of the evidence provided, and to re-consider her findings in relation to Mr. Maxwell’s income.

[28] Mr. Maxwell argues that the Arbitrator erred in refusing to permit Mr. Taudien to testify during the Arbitration. In his view, Mr. Taudien’s evidence was highly relevant to the issue of the determination of Mr. Maxwell’s income pursuant to ss. 18 and 19 of the Guidelines, and her refusal to allow his testimony resulted in a significant denial of justice to him, in that it prevented him from responding to Ms. La Fontaine’s evidence in relation to legitimate business expenses and attribution of pre-tax corporate income.

[29] The Arbitrator’s decision not to allow Mr. Taudien to testify was thoroughly explained by her at paras. 2162-2164 of her Award. Mr. Maxwell sought permission to call Mr. Taudien as a witness twice during the arbitration, and for the first time ten days into the hearing. The Arbitrator ultimately denied his request to call Mr. Taudien as a witness for several reasons, including the following:

• She had carefully case-managed the proceeding and, at every stage of the proceeding, all of Mr. Maxwell’s lawyers had confirmed that the only witnesses who would testify at the hearing would be the parties themselves and their experts, despite Mr. Maxwell knowing fully when the Arbitration Agreement was signed that the determination of his income would be a central issue in the Arbitration, including in relation to personal expenses paid by his various corporate entities;
• Because Mr. Maxwell had never mentioned the possibility of calling Mr. Taudien prior to the commencement of the hearing, no exclusion order was made, and Mr. Maxwell admitted to having communicated with him during the hearing;
• In doing so, Mr. Maxwell had seriously undermined the reliability of any possible evidence from Mr. Taudien;
• The probative value of Mr. Taudien’s evidence did not warrant the additional cost the parties would incur, or the further delay they would experience, in moving the hearing forward.

[30] I find absolutely no legal error on the part of the Arbitrator in that regard. It was entirely within her discretion to decide whether to allow Mr. Taudien to testify at this late stage in the hearing, and she properly exercised her discretion in denying Mr. Maxwell’s request in that regard.

[31] Finally, even if I were of the view that there might have been errors of mixed facts and law meeting the very high standard of review on appeal (which I do not), I would not consider Mr. Maxwell’s appeal of the Arbitrator’s findings in relation to his income, for a very simple reason: Mr. Maxwell’s failure to make full, frank, accurate and timely disclosure of all relevant evidence related to his income. The Arbitrator’s findings in that regard were unequivocal, and utterly damaging to Mr. Maxwell’s case as well as to his position in this appeal.

[32] In Meade v. Meade, para. 81, Kiteley J. held, at para. 81, that, “[w]here disclosure is inadequate and inferences are to be drawn, they should be favourable to the spouse who is confronted with the challenge of making sense out of financial disclosure, and against the spouse whose records are so inadequate or whose response to the obligation to produce is so unhelpful that cumbersome calculations and intensive and costly investigations or examinations are necessary.”

Issue Two: Did the Arbitrator err in fixing the quantum of retroactive child support?

[33] Mr. Maxwell submits that the Arbitrator erred in her assessment of retroactive child support in the following ways:

• By failing to appropriately consider and weigh Ms. La Fontaine’s three-year delay in the arbitral process, Mr. Maxwell’s conduct and circumstances and the children’s needs and circumstances in her analysis of whether a retroactive child support award was appropriate, and for what years;
• By incorrectly applying the legal principles relevant to an analysis under ss. 3(2)(b) and 4 of the Guidelines, specifically during the times that the children lived away from home to attend post-secondary education programs.

[34] The Arbitrator set aside para. 18 of the parties’ Separation Agreement, which provided that the child support provisions of the Agreement were fixed and non-variable, for a number of reasons, including that the provision resulted in unconscionable circumstances within the meaning of s. 33(4)(a) of the Family Law Act, R.S.O. 1990, c. F.3, due, in part, to the significant increase in Mr. Maxwell’s income and means following the signing of the Separation Agreement in 2004. Then, the Arbitrator determined that Ms. La Fontaine was entitled to retroactive basic child support for the three children from 2007 to 2018, and to a retroactive contribution towards s. 7 expenses incurred during the years 2004 to 2018.

[35] Fixing an amount of retroactive child support is a two-step process. First, the court must decide whether retroactive child support should be ordered. Then, the court must decide the appropriate quantum of the retroactive arrears owed by the payor to the recipient. In Colucci v. Colucci, 2021 SCC 24, para. 114, the Supreme Court summarized the principles applicable to retroactive child support claims (as previously established by the court in Michel v. Graydon, 2020 SCC 24, and D.B.S. v. S.R.G., 2006 SCC 37), as follows:[2]

a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[36] The discretionary factors set out in D.B.S. are the following:

1. whether there was a reasonable excuse for why the claimant did not pursue child support or increased child support earlier;
2. the conduct of the payor parent, and in particular, whether there is evidence that the payor has engaged in blameworthy conduct relevant to the child support issue;
3. the circumstances of the child; and
4. any hardship which may be occasioned by a retroactive award.

[37] There is an inherent balancing test in the application of these four factors: “None of these factors is decisive .... At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix”: D.B.S., para. 99.

[38] Due to their fact-based and discretionary nature, child support awards attract a very high degree of appellate deference. An appellate court should not overturn a support award unless the reasons disclose an error in principle or a significant misapprehension of the evidence, or unless the award is clearly wrong: Hickey, paras. 10-12.

[39] The determination of whether child support will be awarded and, if so, the amount of the award, involves considerable discretion. As the Supreme Court explained in Hickey, family law legislation gives judges the power to decide support rights and obligations based on certain objectives, values, factors, and criteria, all of which must be weighed and balanced with an appreciation of the particular facts of the case. An appellate court cannot overturn a support award simply because it would have made a different decision or balanced the factors differently: Hickey, at 10-12.

Sub-issue one: Unfair application of the D.B.S. factors

[40] Mr. Maxwell argues that the Arbitrator erred in her application of the D.B.S. factors. In his view, the result was an unfair application of the caselaw that led to a punitive and oppressive result.

[41] The first point raised by Mr. Maxwell is that the Arbitrator erred in awarding child support during the three-year hiatus (2013 to 2016) during which Ms. La Fontaine did not take steps to advance her case.

[42] This point is easily disposed of. While there were several factors that contributed to the delay in the arbitration process, the Arbitrator found that no delay on Ms. La Fontaine’s part could be characterized as unreasonable (para. 1987 of the Arbitration Award). This is a finding of fact which was wholly supported by the evidence, including the Arbitrator’s conclusion that Mr. Maxwell had failed to provide meaningful, accurate, focused and prompt disclosure, which forced Ms. La Fontaine to bring four motions (in the arbitration process and before the court) to address disclosure issues. At para. 1986 of her Arbitration Award, the Arbitrator provided many examples of all the ways in which Mr. Maxwell attempted to obstruct the arbitration proceeding, including by failing to make meaningful, accurate and focussed financial disclosure (at para. 1988).

[43] Additionally, the Arbitrator pointed to the fact that Ms. La Fontaine had encountered health issues during some of those years which had contributed to the delays, and she described how both parties had been forced to find new legal representation for various reasons, which also contributed to the delays.

[44] Therefore, the Arbitrator’s decision to impose a child support obligation to Mr. Maxwell retroactive to 2004 (regarding s. 7 expenses) and 2007 (basic child support), including for the three years during which no step was taken to advance the process, was amply justified by her conclusions on the facts. At para. 2215 of her Award, she concluded:

This was a very complex case, which spanned a number of years. Had the case proceeded more fluidly, at the outset, the retroactive child support would have been far less than is the case almost nine years later. Even with the hiatus in the case proceeding to final determination, it is clear that Mr. Maxwell's failure to make timely, meaningful, constructive, and fulsome financial disclosure is the very reason why the retroactive award is so significant. I see no reason for his failure to make necessary financial disclosure to be rewarded.

[45] It is impossible to argue with this conclusion.

[46] Moreover, Mr. Maxwell had “effective notice” of Ms. La Fontaine’s claim to set aside the relevant provisions of the Separation Agreement and seek a retroactive adjustment of his child support obligations since well before the court proceeding was commenced (she invoked the dispute resolution clause of the Separation Agreement in 2007). Ms. La Fontaine did not delay taking steps to assert her claim for child support; efforts were made by her to negotiate a fair settlement before she was forced to file the Separation Agreement with the court for enforcement in 2010 (due the Mr. Maxwell’s failure to abide by its terms), and initiate court proceedings in 2011. Mr. Maxwell is as responsible for the three-year hiatus as Ms. La Fontaine; he also took no steps to advance this litigation and took the path of least resistance (for obvious reasons). Considering all this, I see no error in the Arbitrator’s decision to make a retroactive award of child support for the entire period claimed, including for the three-year hiatus.

[47] Similarly, the Arbitrator’s conclusion that Mr. Maxwell engaged in blameworthy conduct cannot possibly be challenged, considering the Arbitrator’s many – and significantly damaging – factual findings in that regard. In addition to the Arbitrator’s conclusion that Mr. Maxwell had engaged in blameworthy conduct by failing to make timely, complete, accurate and up-to-date financial disclosure, the Arbitrator found that Mr. Maxwell attempted to intimidate Ms. La Fontaine in various ways (including by wrongfully deducting amounts from her monthly child support), and by adopting an “aggressive and unhelpful” approach to the determination of his income (at para. 1993).

[48] Mr. Maxwell argues that the Arbitrator failed to fairly consider the fact that he complied with the terms of the Separation Agreement throughout the prolonged dispute and the arbitration process, and that he exceeded his obligations with respect to the payment of the children’s significant s. 7 expenses, by paying far more than what was required pursuant to the Separation Agreement.

[49] Firstly, the Arbitrator clearly found that Mr. Maxwell did not, in fact, comply with the terms of the Separation Agreement. She found that he did not pay support when due and that he had accumulated significant arrears of support which forced Mr. La Fontaine to take legal actions. She found that those arrears were only paid by Mr. Maxwell once the FRO began enforcement proceedings. While he resumed paying child support thereafter, in accordance with the Separation Agreement, Mr. Maxwell stopped making the other financial payments required under the Separation Agreement. This led the Arbitrator to conclude that Mr. Maxwell simply “changed the vehicle through which he clawed back money from Ms. La Fontaine”. These findings of facts are not subject to appeal.

[50] Secondly, the Arbitrator did acknowledge and consider the fact that Mr. Maxwell made significant contributions towards the children’s s. 7 expenses over the years by, among other things, paying for their private schooling and extensive travel. However, she also concluded that while this was happening, Ms. La Fontaine was left with having to cover the children’s day-to-day living expenses with the minimal child support she was receiving. It was clearly within her discretion to give some factors more weight than others, and what Mr. Maxwell is asking this court to do is to reweigh the evidence to achieve a different conclusion. This is not the role of an appellate court.

[51] The final point raised by Mr. Maxwell is that the Arbitrator did not provide an assessment of the children’s circumstances during the years in question. According to him, all the children’s needs were being met during those years, including by way of his significant contributions to their post-secondary school costs and extensive travels.

[52] I do not agree that the Arbitrator failed to consider the children’s circumstances in the context of her assessment as to whether a retroactive award should be made.[3] At para. 2005 of her Award, the Arbitrator agreed with Ms. La Fontaine’s submission that Mr. Maxwell’s support obligation to the children did not disappear simply because the children might not need support at that time. After quoting extensively from Michel v. Graydon, 2020 SCC 24, she concluded (at para. 2008):

It is not necessary for Ms. La Fontaine to prove that the children went hungry, were ill-clothed, or poorly sheltered for there to be a retroactive award of child support.

[53] The way in which the Arbitrator weighted all the factors relevant to her determination as to whether a retroactive award was appropriate, based on all the evidence before her, was an entirely discretionary exercise with which this court is not permitted to interfere in the absence of an error in principle or a significant misapprehension of the evidence. I find no such error here.

[54] Finally, I will add that in my view, the D.B.S. analysis is not even engaged for any of the years following the filing by Ms. La Fontaine of her Family Law Application, in 2011. Once she filed her Application before the court, any child support awarded for the years that followed cannot properly be qualified as a “retroactive” award. To borrow from the language of D.B.S., a retroactive increase of support in the circumstances if this case is “not truly retroactive”; rather, it enforces an obligation that should have been fulfilled from – at the very least – the date that the Family Law Application was commenced.

Sub-issue two: Calculating the quantum of child support arrears

[55] Mr. Maxwell submits that the Arbitrator erred in her determination of the quantum of child support payable to Ms. La Fontaine by failing to account for the children living away from home during their post-secondary education, failing to reduce the award on account of Ms. La Fontaine’s three-year delay in moving the arbitral process forward, and failing to limit the award to the actual hardship suffered by Ms. La Fontaine as a result of alleged underpayments of child support.

[56] Once it is determined that a retroactive child support award should be ordered, the court must decide the amount of that award. There are two elements to this decision: first, the Court must decide the date to which the award should be made retroactive and second, the court must decide the amount of support that would adequately quantify the payor parent's deficient obligations during that time (D.B.S., para. 117). Once the date of retroactivity is determined, having regard to the four discretionary factors set out earlier, the court is required to determine quantum by applying the applicable statutory scheme – in this case, the Guidelines.

[57] In D.B.S., the court stated, at paras. 128-130:

128 That said, courts ordering a retroactive award pursuant to the Divorce Act must still ensure that the quantum of the award fits the circumstances. Blind adherence to the amounts set out in the applicable Tables is not required — nor is it recommended. There are two ways that the federal regime allows courts to affect the quantum of retroactive awards.

129 The first involves exercising the discretion that the Guidelines allow. Thus, the presence of undue hardship can yield a lesser award: see s. 10. As stated above, it will generally be easier to show that a retroactive award causes undue hardship than to show that a prospective one does. Further, the categories of undue hardship listed in the Guidelines are not closed: see s. 10(2). And in addition to situations of undue hardship, courts may exercise their discretion with respect to quantum in a variety of other circumstances under the Guidelines: see ss. 3(2), 4 and 9.

130 A second way courts can affect the quantum of retroactive awards is by altering the time period that the retroactive award captures. While I stated above that the date of effective notice should be chosen as a general rule, this will not always yield a fair result. For instance, where a court finds that there has been an unreasonable delay after effective notice was given, it may be appropriate to exclude this period of unreasonable delay from the calculation of the award. Unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case.

The three-year delay

[58] I have already dealt with the three-year delay in the arbitration process, and my earlier conclusion on that issue equally applies here.

Failure to limit the retroactive award to Ms. La Fontaine’s demonstrated hardship

[59] It was also not a legal error for the Arbitrator to award arrears of child support which went beyond Ms. La Fontaine’s demonstrated hardship flowing from the lack of proper child support from Mr. Maxwell. Financial hardship on the part of the support recipient is but one of the factors that the Arbitrator was required to consider in the context of her determination of the appropriate quantum of the retroactive award. Nowhere has the court ever found that a recipient’s claim to a retroactive award of child support ought to be limited to his or her demonstrated financial hardship. Quite the contrary, the court in Michel v. Graydon, 2020 SCC 24 clearly stated (emphasis added):

31 As to Mr. Graydon's conduct as the payor parent in this case, it is really this simple. When a payor parent fails to pay the appropriate amount of child support, the recipient parent is left to shoulder the burden. If the recipient parent does not have the means to provide their child reasonable support, the child suffers. Both the recipient parent and the child may experience hardship because of a payor parent's neglect. Seen in this light, it bears repeating that retroactive child support is not exceptional relief (D.B.S., at para. 5): there is nothing exceptional about judicial relief from the miserable consequences that can flow from payor parents' indifference to their child support obligations. This is not to say that hardship is required to ground an award for retroactive child support, as there is also nothing exceptional about relief that creates a systemic incentive for payor parents to meet their obligations in the first place. Just as an order of child support is intended to provide children with the same standard of living they enjoyed when their parents were together (D.B.S., at para. 38), an order of retroactive child support provides an (albeit imperfect) remedy where that does not occur.

[60] At para. 2007 of her Award, the Arbitrator found as a fact that Ms. La Fontaine “absorbed hardship associated with Mr. Maxwell's underpayment of child support. She incurred significant debt, on which she paid interest during the period under review. She was required to borrow money from her friend and a neighbour.” She also described in detail Ms. La Fontaine’s evidence in relation to the increasing financial strain she experienced over time because of the inadequate support she was receiving from Mr. Maxwell, and how she encumbered her home on a number of occasions to finance her and the children’s day-to-day expenses (see paras. 497-503, 506-538, of the Arbitration Award). These are findings of fact which are not subject to appeal.

Full Table amount of support while adult and children lived away from home

[61] Next, Mr. Maxwell submits that the Arbitrator erred in law by awarding Ms. La Fontaine the full Table amount of child support for each child during all the years they were living away from home attending post-secondary studies while also imposing upon him an obligation to pay his proportionate share of their significant s. 7 expenses.

[62] The Arbitrator awarded the Table amount of child support for each child throughout the years that they lived away from home while attending post-secondary studies, and until each reached their 22nd birthday. She did not adjust the amount of basic child support payable to reflect the fact that the children were living away from home and imposed the full Table amount under s. 3(2)(a) of the Guidelines, instead of s. 3(2)(b). This provision reads as follows (emphasis added):

Child the age of majority or over

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is:

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

[63] The evidence before the Arbitrator was that the children each lived away from home while attending post-secondary institutions during the following periods[4]:

• Carter attended Bishop’s University in Sherbrooke, Quebec, between September 2010 and April 2014 (he was also completing his high school diploma at Trinity College School in the 2009-2010 academic year when he turned 18 in March 2010). He turned 22 in March 2014;
• Sydney attended the University of St Andrews in Scotland, United Kingdom, from September 2015 to June 2018. She turned 22 in March 2018;
• Davis attended Queen’s University in Kingston, Ontario, from September 2012 to April 2013 and OCAD University in Toronto, Ontario, from September 2014 to April 2015. He turned 22 in January 2016.

[64] It is not disputed that, by virtue of the Arbitration Award made, Mr. Maxwell, whose income was significantly higher than Ms. La Fontaine’s during all relevant years, was required to contribute between 95% and 98% of the children’s post-secondary expenses while living away from home. The issue, therefore, is whether it was an error of law, or of mixed fact and law, for the Arbitrator to award the full Table amount of child support for the parties’ adult children during the years that they lived away from home to pursue their post-secondary education, and while Mr. Maxwell was also required to cover more than 95% of all their post-secondary expenses. To state it differently, did the Arbitrator commit a reviewable error when, in the circumstances of this case, she defaulted to the approach mandated by s. 3(2)(a) of the Guidelines instead of opting for the approach proposed by s. 3(2)(b)?

[65] I agree with Ms. La Fontaine’s submission that the approach under s. 3(2) of the Guidelines provides the court with a great deal of discretion when dealing with adult children. The court is directed to start with the presumption that, in cases involving adult children, child support should be calculated in the same manner as for minor children; that is, by calculating the applicable Table amount and adding any contribution to s. 7 expenses (referred to hereinafter as the standard Guidelines approach). By adopting the same approach for adult children that applies to minor children, the Guidelines foster predictability, consistency, and efficiency in the resolution of disputes concerning the amount of support for children of majority age. Section 3(2)(a) of the Guidelines establishes a presumption in favour of the standard Guidelines approach, and the party seeking to deviate from that approach bears the onus of rebutting the presumption, by demonstrating that the standard Guidelines approach—as opposed to the amount—is inappropriate: Lewi v. Lewi, paras. 127-129.

[66] However, appellate courts have found that imposing the Table amount where children are attending a post-secondary education program away from home may, in certain circumstances, constitute a reviewable error. Gillese J.A. in Bodnar v. Blackman, para. 25, asserts, at para. 25 (emphasis added):

“I would note that the motion judge refers only to the appellant's income when setting child support under s. 3(2)(b). Whereas income is the determinant of child support under s. 3(2)(a) and the "guiding principle" in setting child support under s. 7, s. 3(2)(b) calls for a consideration of the means and needs of the parties and the children. Absent special circumstances, to set the amount of child support based primarily on a single factor (i.e., the income of one party) would be an error in principle as it runs contrary to the terms of s. 3(2)(b).”

[67] Indeed, the court in Bodnar found that the appeal judge erred in finding that the motion judge properly considered the relevant factors in setting support pursuant to s. 3(2)(b): at para. 19. The court noted that the amount of support to be ordered pursuant to s. 3(2)(b) cannot be determined without findings of facts related to the needs and means of the parties and the children (including the dual residences of the children while at university). Because such findings were not made, the matter was remitted for a fresh hearing: at para. 24; see Proctor v. Klammer, 2023 ONSC 5279, para. 15.

[68] In Lewi, the majority asserts that it is not an error for a motion judge to conclude that it is inappropriate to apply the standard Guidelines approach to a child attending university out of town: at para. 163.

[69] The respondent father appealed the order of a motion judge requiring him to pay the table amount of child support and contribute to the balance of the children’s post-secondary expenses, resulting in the respondent father paying 77% of such expenses (with the mother paying 23%). He argued that the motion judge did not properly consider the children’s substantial capital assets (gifts from their paternal grandfather), and as such the amount of child support payable should be reduced. The appeal was allowed in part. The majority found that the motion judge did not properly consider the children’s capital assets in her analysis.

[70] The Lewi court notes (emphasis added):

[129] The word “approach” makes it clear that the court cannot depart from the application of the Guidelines simply because it considers the “amount” determined under s. 3(2)(a), i.e., the table amount or additional expenses under s. 7, to be inappropriate. It must be satisfied that the standard Guidelines approach is inappropriate; clearly an exceptional situation rather than the rule. This further promotes predictability, consistency and efficiency in family law litigation.

[130] In two earlier decisions of this court, Arnold v. Washburn (2001), 57 O.R. (3d) 287, [2001] O.J. No. 4996 (C.A.) and Park v. Thomson (2005), 77 O.R. (3d) 601, [2005] O.J. No. 1695 (C.A.), this court has referred to the issue of the “amount” determined under the Guidelines being inappropriate in the context of s. 3(2)(b). In both those cases, the court's discussion makes it apparent that the issue raised was whether applying the standard Guidelines approach to a child of majority age was inappropriate in the particular circumstances. In my view, neither case decided that a court may resort to its discretion under s. 3(2)(b) merely because it considers the “amount” that results from the standard Guidelines approach to be unsuitable.

[138] No matter what view one takes of this statement, it indicates the motion judge considered it inappropriate to apply the Guidelines as if Brandon were a minor throughout the year….In my view, the motion judge considered it inappropriate to treat Brandon as a minor because he would be living away from home for eight months of the year. There is no other basis upon which she had discretion to depart from the standard Guidelines approach.

[155] Section 3(2)(b) simply specifies general criteria to which the court must have regard. As Carthy J.A. observed at para. 22 in Arnold v. Washburn, supra, the focus of s. 3(2)(b) is, “[n]ot on the payer's income but rather on the amount of support and its appropriateness having regard to the needs and condition of the children and the financial ability of the spouses to contribute to the children’s support”.

[162] Counsel for Ms. Lewi submitted that the motion judge erred by failing to determine child support for children according to the presumed approach of s. 3(2)(a) of the Guidelines. She submitted that unreduced table support throughout the year is consistent with the principles articulated in Francis v. Baker, supra, and would promote the objectives of the Guidelines stated in s. 1 [….] Stating the obvious, she observed that costs go up, not down, when children go away to university. The proper approach, she submitted, is to order unreduced table support, apply that table support to as much of the living expenses of the child at university as possible, and resort to s. 7 for the additional costs of post-secondary education. This approach, she submitted, would preserve the objective and predictable calculation of child support pursuant to the Guidelines and reserve the bulk of discretion to the application of s. 7. This approach, she submitted, must be used unless the husband establishes, with clear and compelling evidence, that it is inappropriate.

[163] In my view, it would have been open to the motion judge to proceed in this way. However, the decision of this court in Park v. Thompson, supra, makes it clear she did not err by concluding it would be inappropriate to apply the Guidelines to Brandon as if he were a minor because he would be attending a university out of town.

[71] In Park v. Thompson, para. 30, the Court of Appeal for Ontario allowed an appeal challenging the application judge’s order for the father to pay ongoing support in the full table amounts and his pro-rated share of his child’s tuition fees. The appellate court concluded that the application judge erred in failing to consider whether the table amount was inappropriate within the meaning of s. 3(2)(b). As such, the order concerning the retroactivity of s. 7 expenses was set aside, and a trial was ordered.

[72] In Easton v. Coxhead, 2018 ONSC 4784, para. 77, Justice Madsen (as she then was) provided a generalized view of appropriate child support when children were away attending post-secondary education. She stated, at para. 77:

Numerous cases have found that the table amount of support will likely be inappropriate where the child is residing away from home to attend school. See for example Douglas v. Douglas, 2013 ONCJ 242, para. 59, in which Justice Sherr stated"Although each case must be determined on its own facts, most courts will order the full table amount in the months that the child is living at home, with a lesser amount when the child is away at school."

[73] Ms. La Fontaine argues that the Arbitrator was alive to the fact that the award of basic child support sought by Ms. La Fontaine was premised on Mr. Maxwell having an obligation to pay full Table support for each child in the years under review (2007 to 2018), even if the child was pursuing post-secondary education away from home (see paras. 471-74). In other words, Ms. La Fontaine submits that the Arbitrator was aware that this position would be a clear departure from “established caselaw” which suggests that it is usually not appropriate to order the Table amount of child support for an adult child living away from home to pursue a post-secondary education program. She states that this was a proper exercise of discretion on the part of the Arbitrator in the context of her application of s. 3(2) of the Guidelines, one which is not reviewable on appeal.

[74] I disagree.

[75] In the context of her assessment of the quantum of the retroactive child support award to be made in the circumstances, the Arbitrator did not engage in any meaningful analysis of s. 3(2)(b) of the Guidelines. The basis of her decision to order the Table amount of child support until each child reached 22 years of age, regardless of whether they pursued post-secondary education away from home, is found at paras. 2195-96 of her Award:

2195 Having considered all the evidence, as well as the arguments advanced by each party, in my view, table support is appropriate for each of the children until their 22nd birthday.

2196 In paragraph 27 of their Agreement, the parties agreed that child support would continue at the rate prescribed by paragraph 16, even if a child was living away from home to attend school, pursue summer employment or vacation, but otherwise maintained a residence with Ms. La Fontaine. I find that Carter and Sydney did, in fact, maintain a residence with Ms. La Fontaine until their 22nd birthdays and she continued to apply her support payments for them to their financial needs.

[76] To put the above in perspective, I find it useful to look at the yearly amounts that the Arbitrator required Mr. Maxwell to contribute to each adult child’s s. 7 and post-secondary expenses during the years they lived away from home. The following Table, which is found at para. 2214 of the Award, is instructive in that regard:

[77] In other words, during the years 2010 (when Carter began attending school away from home in the fall) until 2017 (the cost of Sydney’s last semester at the University of St Andrews is not included), Mr. Maxwell paid (or was ordered to pay) $452,055 towards the children’s s. 7 expenses, which included each adult child’s post-secondary expenses (including tuition, housing, food, transportation and other living expenses).[5] Beginning in 2010, most of the children’s s. 7 expenses (if not all of them) consisted of post-secondary education costs and living expenses while away from home.

[78] In addition to this, Mr. Maxwell was required to pay the full Table amount for all three children under the standard Guidelines approach set out in s. 3(2)(a), including during the years that one or more of the children were living away from home for up to ten months during the year. Given Mr. Maxwell’s substantial income from 2010 onward (as determined by the Arbitrator), the Table amount of child support payable by Mr. Maxwell for the children still living at home was already substantial:

• In 2010, based on his income of $1,790,836, Mr. Maxwell’s Table amount for three children was $27,029 per month. For two children only (since one child lived away from home), his Table amount would have been $21,026;
• In 2011, based on his income of $1,119,130, Mr. Maxwell’s Table amount for three children was $17,021 per month. For two children only (since one child lived away from home), his Table amount would have been $13,234;
• In 2012, based on his income of $900,352, Mr. Maxwell’s Table amount for three children was $13,416 per month. For one child only (as two children were attending school away from home), his Table amount would have been $10,566;
• In 2013, based on his income of $1,300,494, Mr. Maxwell’s Table amount for three children was $19,178 per month. For one child only (as two children were attending school away from home), his Table amount would have been $15,128;
• For the months of January to March 2014 (Carter completed his studies in March 2014), based on his income of $3,000,000, Mr. Maxwell’s Table amount for three children was $43,651 per month. For one child only (since two children were attending school away from home), his Table amount would have been $22,353;
• For the balance of 2014, his Table amount for two children (Sydney and Davis) was $34,502 per month. Both children were attending school away from home during that time;
• In 2015, based on his income of $1,135,212, Mr. Maxwell’s Table amount for two children was $13,243 per month. Both children were attending school away from home during the first semester of that year, and thereafter only Sydney remained in school. For one child only (Davis, who was back at home for the period of May to December), Mr. Maxwell’s Table amount would have been $8,555;
• In 2016, based on his income of $2,035,918, Mr. Maxwell’s Table amount for two children was $23,511 per month. As Davis turned 22 in January 2016, Table child support was no longer payable for him as of February 2016 (although the Arbitrator ordered ongoing support for him after 2021). The Table amount of his child support for one child, Sydney, was $15,219;
• In 2017, based on his income of $1,052,842, Mr. Maxwell’s Table amount for Sydney (who was attending school away from home) was $7,799 per month;
• In 2018, based on his income of $321,317, Mr. Maxwell’s Table amount for Sydney (still in school away from home) was $2,532 per month. Support for her ended in the end of March 2018.

[79] Counsel for Mr. Maxwell provided, at para. 73 of her Factum, a re-calculation of the child support owing, based on Mr. Maxwell’s income as found by the Arbitrator, which removes the payment of Table child support for the children who were away from home during any given year, subject to the payment of basic child support during the summer months. This table is reproduced below:

[80] In my view, it was an error of law, or of mixed fact and law, in the circumstances of this case to treat the children as minors while they lived away from home and to default to the standard Guidelines approach under s. 3(2)(a) without engaging in any meaningful analysis under s. 3(2)(b). The Arbitrator’s failure to do so was an error in principle.

[81] Indeed, the Arbitrator’s decision to apply the standard Guidelines approach appears to have rested solely on her finding that Ms. La Fontaine continued to maintain a residence for the children while they lived away from home. While her factual finding in that regard is not reviewable on appeal, her reliance on s. 27 of the parties’ Separation Agreement to justify imposing the full Table amount of child support for each child until their reached 22 years of age, was also an error in principle in my view.

[82] To illustrate this, it is important to reproduce the relevant sections of the Separation Agreement:

16. The parties share custody of the children. They have considered the increased cost of this shared custody arrangement and to satisfy their mutual obligation to support the children, it is agreed that James shall pay to Lynne on the 1st day of each month child support for each of Carter, Davis and Sydney the sum of $1,500.00 per month per child for a total monthly child support payment of $4,500.00 commencing December 15, 2003. Without limiting the generality of her obligation, Lynne shall be responsible to pay for all customary and recurring expenses for the children including but not limited to clothing, sports equipment and incidental school expenses including supplies.

17. James and Lynne further agree that the support and property terms of this Agreement constitute special provisions made for the direct and indirect benefit of the children of the marriage such that the application of the Child Support Guidelines would result in an amount of child support that would be inequitable after considering these special provisions. The parties agree that child support will be non-variable. Each party acknowledges that in any given year, the child support payable under the Guidelines may be higher or lower than the actual amount paid, however, James and Lynne have each considered that fact and confirm they prefer to assume the risks in favour of certainty, the ability to plan their respective financial futures and the desire to disengage from one another. The parties further agree that the child support arrangements for Carter, Davis and Sydney are reasonable and meet the objectives of the Child Support Guidelines.

18. Lynne shall be responsible for payment of all extracurricular activity expenses to a maximum of $9,000.00 per year excluding the cost of any summer camps in which James may register the children, such costs to be paid solely by him. James shall reimburse Lynne the difference between $9,000.00 and the total activity cost. Neither party shall register the children in extracurricular activities without first obtaining the other person's consent.

19. Payment of child support to Lynne for Carter, Davis and Sydney shall end when:

a. the child no longer resides with Lynne. "Resides" includes the child living away from home to attend school, pursue summer employment or vacation, but otherwise maintaining a residence with Lynne;

e. the child turns 22 years of age;

[83] Pursuant to ss. 22 and 23 of the Separation Agreement, the parties were required to share equally private school costs as well as post-secondary education costs (tuition and other school fees, books, residence and meal plan only), regardless of their income.

[84] The Arbitrator came to the clear conclusion that the child support provisions of this agreement did not meet the objectives of the Guidelines, considering that the children did not spend an equal amount of time in their father’s care, and given his significantly increased income over the years. She concluded:

1954 I find that the fixed and non-variable child support provisions in the Agreement did not ensure the consistent treatment of these parties and these children with other spouses and children in similar circumstances.

1955 Given all the financial obligations imposed on Ms. La Fontaine under paragraphs 20, 21, 22, 23 and 25 of the Agreement, I find that the non-variability of the child support provisions in the Agreement, as reflected in paragraph 18, is unreasonable having regard to the Guidelines. As Mr. Maxwell's income increased, Ms. La Fontaine absorbed an increasingly disproportionate amount of the children's section 7 expenses.

1956 In my view, Ms. La Fontaine has met the onus of proving that paragraph 18 of the Separation Agreement should be disregarded having regard to the child support Guidelines and the other provisions in the Agreement which relate to the children's support.

[85] Having determined that the child support provisions contained in the Separation Agreement, as a whole, resulted in section 18 being unconscionable, it was an error in law to then rely on para. 27 of the agreement as the basis for ordering full Table amount of child support for the children even when they were living away from home, so long as their mother “maintained a residence” for them, without engaging into an analysis under s. 3(2)(b) of the Guidelines. This is particularly so considering that the Arbitrator concluded, at para. 1961 of her Award, that (emphasis added) “if para. 18 of the Agreement is, in fact, set aside, all the child support provisions in the Agreement become variable and I may make an award of child support based on the provisions of the Guidelines.”

[86] To summarize, I conclude that the Arbitrator committed an inextricable error in principle when she failed to engage in any meaningful analysis under s. 3(2)(b) of the Guidelines, and focussed solely on section 27 of the Separation Agreement (and her conclusion that the children continued to maintain a residence with Ms. La Fontaine) to conclude that the full Table amount of child support was payable for the parties’ adult children, without any consideration to the condition, means, needs and other circumstances of the children and the parents’ ability to contribute to their support.

Quantum of support under s. 4 of the Guidelines

[87] The crux of the Arbitrator’s decision in relation to the application of s. 4 of the Guidelines to the circumstances of this case can be found at paras. 2206-7 of her Award, which read as follows:

2206 In my view, the children should benefit from each parent's means in every year under review. It was very clear from the evidence that Mr. Maxwell enjoyed the benefit of his increased income throughout the period under review. He has enjoyed a highly affluent lifestyle. The children experienced a tremendous disparity in the lifestyle they enjoyed with each parent. While Ms. La Fontaine sacrificed much to provide for the children, and incurred substantial debt to do so, she simply never managed to get ahead financially. It is very clear from all the evidence that Mr. Maxwell enjoyed the privilege of financial power from the time the court proceedings began.

2207 In the circumstances of this case, I see no reason deviating from full table support having regard to all of Mr. Maxwell's income for support purposes in every year under review, except 2014.

[88] While I find no reviewable error in the Arbitrator’s application of the legal principles relevant to the determination of Mr. Maxwell’s income under s. 4 of the Guidelines (income over $150,000), her conclusions in that regard coupled with her conclusion that Mr. Maxwell should be required to pay the full Table amount as well as 95% or more of the children’s post-secondary education and living expenses, make it even more obvious that the use of the standard Guidelines approach under s. 3(2)(a) was inappropriate in the circumstances.

[89] In A.E. v. A.E., 2021 ONSC 8189, para. 240, Chappel J. stated the following at para. 240:

The objective of the child support provisions of the Divorce Act and the Guidelines is to ensure the reasonable support of children rather than household equalization or spousal support. One of the purposes of section 4 is to ensure that child support does not enter into the realm of a functional wealth transfer or de facto spousal support to the recipient parent. Table amounts that so far exceed a child's reasonable needs that they become a transfer of wealth between the parents or spousal support under the guise of child support will be inappropriate.

[90] Considering the Arbitrator’s decision to use Mr. Maxwell’s actual income during the years that one or more of the children were living away from home to determine his child support obligations (except for 2014 which was an extraordinary year), instead of a reduced income that would take into account the children’s condition, means, needs and other circumstances, her decision to use the standard Guidelines approach under s. 3(2)(a) in addition to requiring Mr. Maxwell to contribute 95% or more of the children’s post-secondary expenses while living away from home, led to a functional wealth transfer to Mr. La Fontaine.

[91] In summary, I find no reviewable error in the Arbitrator’s application of s. 4 to the facts of this case, so long as the approach mandated by s. 3(2)(b) of the Guidelines is used to determine Mr. Maxwell’s child support obligations towards his adult children while they lived away from home to pursue their post-secondary studies.

Issue Three: Did the Arbitrator err in making an award for ongoing support for the parties’ adult son, Davis?

[92] Mr. Maxwell submits that the Arbitrator erred in her assessment of whether Davis was a child of the marriage for whom support was payable, and by making the award when this issue was never submitted for arbitration.

[93] The Arbitrator awarded that, starting February 1, 2021, Mr. Maxwell was to pay Ms. La Fontaine child support for Davis (then 27) in the amount of $3,000 a month, as his contribution to Davis’ therapy and day-to-day living expenses, which Ms. La Fontaine was to then send to Davis (in addition to her own contribution of $500 a month). The Arbitrator concluded that Davis remained a child of the marriage due to his medical diagnosis of anxiety and depression which, she found, prevented him from becoming financially self-sufficient and withdrawing from Ms. La Fontaine’s charge. These were conclusions of facts which the Arbitrator was fully justified to make, based on all the evidence before her, which are not subject to appeal.

[94] Ms. La Fontaine submitted the amount of monthly child support payable for the children as an issue for arbitration in the Arbitration Agreement. She also provided Mr. Maxwell with notice that she intended to seek ongoing monthly child support for Davis well in advance of the hearing. Child support is payable based on the circumstances of a child at any given time before the hearing of an application. Ms. La Fontaine brought her court application in 2011, when Davis was only 17 years old. When the parties entered into the Arbitration Agreement, Davis was only 18 years old. At that time, he was still attending school full-time, and was still a dependant child. His mental health issues were not as serious as they became over time.

[95] To claim that Ms. La Fontaine should be prevented from seeking ongoing support for him at age 27 because that particular issue was not submitted to arbitration back in 2011, when Davis was only 17, is nonsensical. Mr. Maxwell had plenty of notice of Ms. La Fontaine’s intention to seek continued child support for him as an adult well before the arbitration hearing began, and he had a full opportunity to test Ms. La Fontaine’s evidence in that regard, to adduce his own evidence, and to present his arguments.

[96] I see no reviewable error in the Arbitrator’s application of the principles set out in ss. 2 and 15.1 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), or in the way in which the Arbitrator quantified the parties’ respective support obligations towards Davis.

Issue Four: Did the Arbitrator err by failing to conduct the arbitration with neutrality and fairness?

[97] Mr. Maxwell submits that the Arbitrator failed to conduct the arbitration with neutrality and fairness to both sides, by failing to provide each party the opportunity to present their case and to respond to the other party's case. More specifically, Mr. Maxwell argues that the Arbitrator failed to discharge her statutory obligation to ensure that the tenets of natural justice were maintained throughout the process. He states that despite extending the hearing far beyond the scheduled and anticipated timetable largely to facilitate Ms. La Fontaine’s evidence, she denied him a fair hearing by refusing to allow him to advance relevant evidence, while failing to provide clear and cogent reasons to support her rationale in this regard. He also submits that the Arbitrator erred in failing to provide discernable or comprehensible reasons for her awards, contrary to the rules of natural justice.

[98] I find no merit in any of these submissions.

[99] I have already concluded above that the Arbitrator’s decision not to allow Mr. Taudien to testify during the arbitration hearing was fully justified, and wholly within the Arbitrator’s discretion as the master of her own process.

[100] In a leading family law arbitration case, Petersoo v. Petersoo, 2019 ONCA 624, paras. 35-36, Benotto J.A. said:

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.

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.

[101] Mr. Maxwell’s appeal on this issue is dismissed.

Issue Five: Determination of costs

[102] Although I have found that the Arbitrator committed a reviewable error in principle in her determination of the quantum of child support owing by Mr. Maxwell to Ms. La Fontaine for those years during which one or more of the children were living away from home attending post-secondary programs of education, I am not prepared to vary the Award of Costs made by the Arbitrator for the following main reasons.

[103] Costs awards are highly discretionary and should only be set aside on appeal if the court “has made an error in principle or if the costs award is plainly wrong.” Here, the Arbitrator referred to r. 24 of the Family Law Rules, O. Reg. 114/99, the factors enumerated therein, and exercised her discretion to award costs to Ms. La Fontaine in the amount of $797,695. The Arbitrator found that Ms. La Fontaine was the successful party in the proceeding – something that still holds true in this appeal – and properly exercised her discretion to award full indemnity costs to her, including on account of her Offers to Settle but most especially her unequivocal and countless findings that Mr. Maxwell behaved unreasonably and in bad faith throughout the arbitration process.

[104] I see no basis upon which the Arbitrator’s findings in that regard should be varied on appeal.

Conclusion

[105] While it is open to me to remit the quantification of the retroactive child support award owing by Mr. Maxwell for the years 2010 onward back to the Arbitrator, given the passage of time I am not certain whether this is even a possibility at this stage. I am also not prepared to substitute the Arbitrator’s retroactive child support award for the years during which one or more children were away from home and replace it with an arbitrary lump-sum in the amount of $400,000, as argued by Mr. Maxwell. This would be the equivalent of not engaging into any meaningful analysis under s. 3(2)(b) of the Guidelines.

[106] I am mindful of the fact that this litigation has been ongoing for almost fifteen years and has cost both parties extraordinary amounts in legal fees. The Arbitrator’s findings of fact in relation to this outstanding issue remain intact. As such, it appears to me that this court is in a position to substitute its own award to that of the Arbitrator, based on the Arbitrator’s clear findings of fact. This said, I am not prepared to take on the task of quantifying the retroactive support award (for the years 2011 onwards) without further submissions from the parties, should this be the way in which they prefer to proceed.

[107] If the parties are unable to resolve this issue between themselves, or agree on a private process to have this issue determined, they may reach out to me to arrange a case management hearing to discuss whether the matter should be remitted to the Arbitrator for determination, or whether the parties wish to have me determine that issue after a further hearing during which both parties will have an opportunity to make further representations on this single issue.

[108] Either way, the parties may reach out to me directly to seek directions as to next steps.

Costs

[109] If the parties are unable to resolve the issue of costs for this appeal, I will accept written submissions from them not exceeding five (5) pages each, double-spaced, plus Bills of Costs and relevant Offers to Settle, to be submitted in accordance with the following timelines:

• The appellant (Mr. Maxwell) to serve and file by May 23;
• The respondent on appeal (Ms. La Fontaine) to serve and file by May 30;
• A brief reply may be filed by Mr. Maxwell by June 6.

Justice Marie-Josée Audet
Date: May 13, 2025

Footnotes

[1] Other relief was sought, but it is not relevant for the purpose of this appeal.

[2] This legal framework was adopted in Michel v. Graydon in relation to applications to retroactively vary child support under s. 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp), but it is equally applicable (save for the need to find a material change in circumstances) to applications to establish a new child support order, as was the case in D.B.S.

[3] As will be discussed more thoroughly below, I conclude that the Arbitrator failed to conduct a proper assessment of the children’s condition, means, needs and other circumstances during the relevant years in the context of her determination as to whether the presumptive approach mandated by s. 3(2)(a) was appropriate in the circumstances of this case.

[4] There is confusion in relation to the exact dates at which each child was living away from home while attending a post-secondary education institution. The dates set out in the Arbitration Award, starting at para. 506, do not seem to accord with the summary provided at para. 59 of Mr. Maxwell’s Factum or the Residency Schedule included by Mr. Maxwell in his Appeal Book (Volume I, Split C, Tab 18 – at Master B2565). I have done my best trying to accurately reflect these periods of time here, but there may be errors.

[5] These are described in detail at paras. 568-69 of the Arbitration Award.