2013 ONSC 2327, 2013 ONSC 2327

CITATION: More v. Ross, 2013 ONSC 2327 COURT FILE NO.: 244/11 DATE: 20130422 SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT RE: Mayer More (Appellant/Applicant) AND: Fern Elaine Ross (Respondent) BEFORE: MOLLOY, HAMBLY and HERMAN JJ. COUNSEL: Avy Jordan Ben-Zvi, for the Appellant Dani Z.

Frodis, for the Respondent HEARD: April 18, 2013 at Toronto MOLLOY J: ENDORSEMENT Introduction [1] This is an appeal from the Order of Perkins J. dated April 13, 2011 ordering payment of arrears for child support($29,000.00) and orthodontic expenses ($1750.00) and varying a prior Consent Order for support in several respects. The Order wasmade following a three day trial with reasons for decision delivered orally at the conclusion of the trial. The trial judge further orderedMr. More to pay $5000.00 in costs. Mr.

More now appeals from all aspects of the order that require him to pay anything to his formerspouse, as well as from the costs order. Although unsuccessful in obtaining some of the relief she had been seeking, Ms Ross does notchallenge any aspect of the Order made. [2] For the reasons that follow, I find no error by the trial judge. The appeal is dismissed. Background [3] The parties were married in 1987 and divorced in 1996. There were three children of the marriage: Brittany, Zev andRachel. At the time of the trial, Brittany was 22, Zev was 21 and Rachel was 19. [4] Child support was payable by Mr.

More pursuant to a Consent Order of Benotto J. dated June 10, 1997. Under that Order,Mr. More was required to pay child support in the amount of $200.00/month per child until such time as (

i) the child ceased to residefull-time with the Respondent; (ii) the child turned eighteen and ceased to attend an educational institution full-time; or (ii) the childattained his/her first undergraduate degree or became twenty-two years old. The Order provided that the child support amount would beindexed annually in accordance with the formula in s. 34(5) of the Family Law Act.

The Order also provided that the Appellant wouldpay half of the children’s orthodontic bills and post-secondary schooling. [5] Ms Ross did not claim child support for a period of time after the Consent Order when the children were living with hermother (their maternal grandmother). Ms Ross claimed for arrears after the children returned to live with her, which she said was at theend of January, 2000. She also claimed for payment of 50% of the orthodontic bills and post-secondary education expenses she had paidfor various of the children. Finally, she sought a variation of the Consent Order to require Mr.

More to pay life insurance premiums. [6] Mr. More sought an order cancelling all of the arrears and any future child support payments, claiming an inability to payand maintaining that the children were not in financial need. Standard of Review [7] The parties agree that the standard of review on questions of law is correctness. On questions of mixed fact and law, thiscourt should only interfere where there is a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R.235 at paras. 5, 8 and 10; Stein v. “Kathy K. (The), [1978] 2 S.C.R. 802.

Further, it is not our place, particularly in matters of family law,to substitute our own discretion or conclusion in place of that of the trial judge. Rather, we should only intervene if the reasons of thetrial judge disclose “material error” or “a significant misapprehension of the evidence;” Moge v. Moge (1992), (SCC), 99 D.L.R.(4th) 456 (S.C.C.) at paras. 19-20. Mr. More’s Responsibility to Pay Child Support [8] Mr. More sought to have all arrears under the Consent Order erased and an order that he should not have to pay any childsupport going forward. The trial judge noted that Mr.

More placed “great weight” on the means of the mother and the capital availableto her and the children. The trial judge held that regular child support in Canada is based entirely on the means of the payor spouse and

that the means and income of the recipient spouse have no bearing on whether the other spouse (here, Mr. More) is required to contribute to the support of his own children. That is a correct statement of the law. [ 9 ] The trial judge also held that whatever may have been the income of Mr. More at the time of the Consent Order, he agreed to pay $600 per month in child support, and has lived under that order for 14 years. The trial judge saw no reason to disturb that arrangement. He reasoned that if Mr.

More was in fact only earning an average income of $19,000 per year as a real estate agent in California, he had the capacity to work a few hours a week on another job to help support his children. He stated, “The issue was not so much what he did earn as what he could have earned:” Reasons at Transcript, p. 327. [ 10 ] These conclusions were fully open to the trial judge on the evidence before him, and in particular based on his assessment of Mr. More’s own testimony. There is no basis for this court to interfere. [ 11 ] The trial judge held that the obligation to support Brittany and Zev has now ended.

There is no challenge to that finding. However, the trial judge found an ongoing requirement for Mr. More to support his daughter Rachel who is still in full-time attendance at a Canadian government-funded university. He fixed the amount of monthly support for Rachel at $250.00, without further indexation on a going forward basis. That is an appropriate and reasonable sum based on the evidence and the law and there is no basis to interfere. Education Costs [ 12 ] The trial judge found that Ms Ross had failed to establish the amounts she had claimed relating to the university expenses of the children.

He did not allow any of them. There is no challenge to that decision. [ 13 ] Going forward, Rachel may be entitled to a contribution from her father with respect to her education costs. However, the trial judge held that “this will require proof of the payment of those costs, as well as the source of payments, and Rachel will have to be forthcoming about her own means, whether from employment or estate funds, or any other source of funds:” Reasons, at Transcript, p. 333. That is a reasonable and even-handed way of dealing with the issue, and one that is in accordance with established case law.

Again, there is no basis to interfere. Orthodontic Expenses [ 14 ] Ms Ross produced evidence showing a total cost of $14,000 for the children’s orthodontic treatment. For part of the time while these treatments were ongoing, the children were living with their grandmother. Ms Ross maintained that she paid the “great majority” of the bills, whereas Mr. More claimed she had paid none of them. The trial judge accepted Ms Ross’s evidence that she had paid something. That was a credibility finding that was open to him on the evidence.

However, the trial judge also held that her evidence was not sufficiently reliable as to quantum to base an order on. He therefore, estimated that Ms Ross would have paid only one- quarter of the costs she claimed, or $3500.00, and ordered Mr. More to pay half ($1750.00). The trial judge was in a difficult position in light of the evidence. On the strict wording of the Consent Order, there was no requirement that the orthodontic bills be paid by Ms Ross before Mr. More was required to contribute. The Order merely required him to pay 50% of all orthodontic expenses.

It would, therefore, have been open to the trial judge to order Mr. More to pay $7000.00. In these circumstances, the $3500.00 estimate he arrived at was not unfair to Mr. More and was reasonable based on the evidence. I would not interfere. Cost of Living Increase [ 15 ] The trial judge correctly held that there was an entitlement to a cost of living adjustment in the Consent Order and that this was not dependent upon Ms Ross making a prior claim for it.

The trial judge also accepted the calculation filed by Ms Ross setting out the applicable rates over the years in question and applying that rate to the support amounts required. He found no error in the rates or the calculation and Mr. Ross was unable to show any error at the time of trial, or in this appeal before this Court. In these circumstances, there is no basis for finding that the cost of living component which is part of the arrears order is “clearly wrong” and there is no basis to set it aside.

Starting Date for the Child Support Arrears [ 16 ] Ms Ross testified that she had the children back living with her as of the end of January, 2000. She testified that there was a consent interim custody order to that effect, but did not have a copy of it. The trial judge noted that the court computer has a record of the order itself, dated January 26, 2000, but not its terms. Mr. More maintained that the children did not return to live with their mother until April 20, 2000. The trial judge noted that this date coincided with a pre-trial conference between the mother and grandmother.

The trial judge found that it was “more likely” that the children were returned to the mother’s care on January 26, 2000 under the consent temporary order. That was a rational conclusion, based on the evidence, and it cannot be said to be clearly wrong. It was a conclusion open to the trial judge on the evidence. [ 17 ] The appellant argues that the trial judge fell into error by failing to take into account the October 2002 letter from the FRO to the California Department of Child Support Services, which indicates monthly support of $600.00, but states there is nothing owing for arrears.

This is not a conclusive document, and was addressed by Ms Ross in her evidence. The trial judge was not bound to accept this statement as necessarily accurate and was entitled to rely instead on Ms Ross’s testimony, as corroborated by the existence of an order in the court computer. His conclusion is not clearly wrong and does not amount to a misapprehension of the evidence. Months of January 2005 and May and June 2007 [ 18 ] Mr. More objects to paying support for three months when the children were with him in January 2005 and May-June 2007. The trial judge disallowed such a deduction from the arrears.

He held that parents who have regular access to their children are presumed to incur costs of housing, feeding and clothing them and receive no discount for child support in that regard. He held that there was similarly no basis of the father here to obtain a discount for the three months in question. This was an exercise of discretion based

on evidence and consistent with the law in Ontario. Evidence of Arrears [ 19 ] At trial, Ms Ross produced a chart setting out her calculations of the arrears. On the chart she recorded each payment Mr. More made, from February 2000 through to April 2011. Mr. More admitted that he had made no payments at all since 2008. Ms Ross’s records show no payments at all in 2009, 2010 or 2011, which is acknowledged by Mr. More. Her records also show three missed payments in 2008 and three missed payments in 2007 (including the two months for which Mr. More had sought the discount).

There were also seven missed months in 2000, and one missed month in 2005 (the month of January, for which Mr. More had also claimed a discount). Mr. More maintained that he had all his cancelled cheques showing the payments he had made, but that he had left them in California. It was clear that the trial would involve the issue of arrears claimed by Ms Ross, stretching back over the years. It was unreasonable for him to have failed to produce the cheques prior to trial, and even more unreasonable to have failed to bring them to the trial. Further during the trial, Mr.

More had a friend in California send him some documents, but again did not produce the cancelled cheques. [ 20 ] Although this particular chart introduced at trial had not been presented to Mr. More before, he was aware of the arrears claim and the trial judge was careful to take him through the document and to ensure that he understood its meaning. In these circumstances, the trial judge exercised his discretion to admit the document into evidence.

It was reasonable of him to do so and there is no basis to interfere with that discretion on appeal. [ 21 ] The trial judge made reductions for months after the two older children had reached an ineligible age or were no longer in Canada. There is no challenge to those deductions. [ 22 ] The trial judge concluded that the total arrears were in the amount of $29,000.00. With the exception of the interest claim (to which I will return shortly), I can see no error in that calculation. It is reasonable and supported by the evidence.

Interest on the Arrears [ 23 ] The Consent Order provided for interest at the rate of 5% per year “on any payments in respect of which there is a default, from the date of the default.” The trial judge found that the interest rate of 5% “is a little high today but it is not at all out of line with the period beginning in 1997 or 2000 and so there is not, in principle, a reason to disturb the interest rate.” I agree. There is no basis for interfering with the rate of interest. [ 24 ] However, the Order does not provide for interest to be compounded.

In the chart prepared by Ms Ross, interest is calculated monthly on the arrears, which is not a problem, provided it is accurately computed. However, after each month’s payment, Ms Ross added the interest for that month to the principal, and then calculated the interest for the next month on the combined amount. This is then carried forward from month to month throughout the years. It means that based on these calculations, Mr. More is being charged interest on interest, going back over a considerable time. That is not appropriate, nor is it authorized by the Consent Order.

I also note that the interest starts to run at February 1, 2000, whereas it should have started on March 1, 2000. Since the first payment was due on February 1, it is only at March 1 that there can be one month of arrears giving rise to an entitlement to interest. In my view, this is a clear error by the trial judge. [ 25 ] Unfortunately, although the appellant challenges the compounding of interest, he has not provided any calculation of interest at the correct method of calculation.

Costs Awarded by the Trial Judge [ 26 ] The trial judge found that Ms Ross was substantially successful and awarded her $5000.00 in costs. This is a very modest sum for what was a proceeding extending back over many months, indeed years, and culminating in a three day trial. There is no basis for interfering with the quantum. [ 27 ] The only real object raised by Mr. More is his inability to pay. The trial judge rejected those same arguments on the issue of ongoing support and ability to pay the arrears. He did not believe Mr. More’s evidence that he was unable to earn more and imputed income to him.

As I have already noted, that was a conclusion fully supported by the evidence and law. I note in particular, Mr. More’s own words at trial, as referred to in the respondent’s factum as follows: So, I’m not looking here for any pity from anybody, I just want to live my life in peace back over there in my apartment, and leave me alone. That’s all I am asking for a long time. … And when she is asking for the money, she’s not asking on behalf of the school or on behalf of the orthodontist. She wants the money to her pocket.

And I don’t see, and I might be wrong, I don’t see no reason why I have to pay her money. … [T]here is children that are in need. So, as far as I can see the thing, my children, and I am very happy for them, are well taken care of. They don’t live in poverty. They drive brand new cars. They go to college, which is all paid in full. They get money into their pocket. And their father is very close to become [sic] homeless. So I don’t have money to give them. And they are not living in poverty. So I have to do my decision, to make rational decision.

Transcript, pages 200, 232, and 271 [ 28 ] There is a presumption that a successful party is entitled to costs and a trial judge has considerable discretion as to whether to

award such costs, and if so, in what amount. The trial judge here was more than fair in the costs awarded. Conclusion and Order [ 29 ] The one point on which the appellant has been successful has been the calculation of interest on the arrears, and in particular on his point that only simple, not compound, interest is appropriate. In all other respects this appeal is dismissed. [ 30 ] The appellant has one week to provide to counsel for the respondent a re-calculation of the amounts owing based on simple rather than compound interest.

If the respondent is in agreement with the recalculation, counsel may write to the Court and provide the appropriate number for the arrears owing. If counsel for the respondent is not satisfied with the calculation, he may provide his own calculation within seven days and both calculations shall be provided to the Court. Based on those submissions, this Court may issue an Order varying the amount of the arrears ordered by the trial judge.

If no submissions are received by May 10, 2013, the appeal will simply be dismissed with no variation of the Order of the trial judge. [ 31 ] The respondent has been almost entirely successful and is entitled to costs. Those costs are fixed at $5000.00, payable forthwith to the respondent, which may be enforced as child support. MOLLOY J. HAMBLY J. HERMAN J. Date: April 22, 2013