



COURT OF APPEAL FOR ONTARIO

CITATION:
Crosbie v. Crosbie, 2012 ONCA 516


DATE:
    20120726
DOCKET: C54415

Simmons, Juriansz and Epstein JJ.A.

BETWEEN

Michelle Ernestine Crosbie

Applicant (Respondent in appeal)

and

Stephen Mark Crosbie

Respondent (Appellant)

Maurice W. Pilon, for the appellant

Jeffrey R. Robles, for the respondent

Heard: July 18, 2012

On appeal from the judgment of Justice Peter Z. Magda of
    the Superior Court of Justice, dated September 15, 2011.

ENDORSEMENT

[1]

The appellant father,
Mr. Crosbie, appeals an
    order that he pay the following: (1) child support arrears plus interest on
    those arrears in the amount of $49,650.78, (2) child support adjusted
    retroactively to start January 1, 2005  by an amount that would add $37,063.20
    to the arrears, (3) ongoing monthly child support of $611.00 commencing January
    1, 2010 based on imputed income of $66,131.00, (4) 43% of section 7 expenses,
    and (5) costs in the amount of $30,428.06 to the respondent mother, Ms.
    Crosbie.

[2]

The parties only child was born in 1990. The
    parties separated in 1993. Ms. Crosbie returned to Canada from Jamaica while
    Mr. Crosbie remained. The original child support order, made in 1995, ordered
    Mr. Crosbie to pay monthly child support of $300. He made no payments under
    this order until after his return to Canada in late 1999.  From April 2000
    until June 2008, when the child turned 18 and left school, Mr. Crosbie paid
    $300 monthly.

[3]

On October 7, 2009, Mr. Crosbie brought an
    application: (1) to change his child support obligations retroactively from
    July 2008 to May 2009 by an amount that would yield a balance owing of $1,489,
    (2) to establish his support payments from May 2009 based on an imputed annual
    income of $38,000 plus an additional $1,000 per year for extraordinary
    expenses, and (3) to fix arrears at $8,400 with all interest forgiven.

[4]

Ms. Crosbie opposed the application and brought
    a cross-application:  (1) for payment of arrears of $25,489.00 plus accrued
    interest of $24,161.78 for a total of $49,650.78, (2) for increased child
    support from January 1, 2005 of $27,892, (3) for payment of section 7 expenses
    of $1,604, and (4) for a tax gross-up on arrears to March 2000 of $3,360.

[5]

The application judge dismissed Mr. Crosbies
    application and granted the relief requested by Ms. Crosbie.  Mr. Crosbie
    appeals.

[6]

For the reasons that follow, the appeal is
    allowed, in part.

(1)

Mr. Crosbies claims for relief

[7]

The dismissal of Mr. Crosbies application to change
    his child support obligations was based on the motion judge conclusion that
    Mr. Crosbie had not established that a change in child support was warranted. This
    conclusion was available to the application judge on this record and we see no
    reason to interfere.
It is unfortunate that the application judge did
    not acknowledge the need to reconsider support in the light of the coming into
    force of the 1997
Child Support Guidelines
. 
    However, there is no evidence to sustain the conclusion that consideration of
    the
Guidelines

would have
    assisted Mr. Crosbies arguments concerning child support.

[8]

In considering Mr. Crosbies request that
    arrears be rescinded, the application judge

made
    the following findings, supported by the evidence:  that Mr. Crosbie earned
    income in Jamaica, that his efforts to seek a change were delayed, that paying
    the arrears would not cause him to suffer undue hardship, and that his son was
    in need of support. The application judges conclusion not to rescind the
    support arrears involved an application of the analysis recommended in
DiFrancesco
    v. Couto
(2001), 56 O.R. (3d) 363 (C.A.)
to
    those facts.
There is no reason to interfere.

[9]

We are concerned however about the application
    judges failure to exercise his discretion to relieve Mr. Crosbie of the
    obligation to pay interest at the rate of 10% on the arrears from 1995 onwards.

[10]

The statutory post-judgment interest rate should
    apply unless there are compelling and exceptional reasons to change the
    interest rate:
Robert McAlpine Ltd. v. Byrne Glass Enterprises Ltd.
,
    116 A.C.W.S. (3d) 441 (Ont. C.A.), [2001] O.J. No. 3208.

[11]

The statutory post-judgment rate of interest when
    the order was made in 1995 was 10%. It has steadily fallen since then and is
    now 3%.

[12]

In our view, the application judge erred in
    failing to view the dramatic decline in interest rates since 1995, combined
    with the extensive passage of time during which arrears have accumulated, as
    amounting to exceptional and compelling circumstances warranting a change in
    the rate of post-judgment interest:  see

MacKinnon v. Duffy
(2000), 10 R.F.L. (5th) 336 (Ont. S.C.).  Allowing arrears to
    continue to attract an interest rate of 10% would be unfair to Mr. Crosbie and
    provide an excessive return to Ms. Crosbie but might also be perceived as an
    incentive for a party in Ms. Crosbies position to delay enforcement.

[13]

We would set aside the amount of interest on the
    arrears established by the application judge and replace it with an amount
    calculated on the basis of the average rate of post-judgment interest between
    the date of the 1995 order and the order under appeal.

(2)

Ms. Crosbies claims for relief

[14]

Mr.
    Crosbie challenges the application judges decision to grant the relief sought
    by Ms. Crosbie on the following bases:

1.    The
    application judge erred in failing to consider Ms. Crosbies delay in pursuing
    child support claims;

2.    The
    application judge erred in awarding an increase in child support that was made
    retroactive for five years from the date of notice
;
and

3.    The
    application judge erred in his analysis of Mr. Crosbies income.

[15]

While
    the payees delay is a valid consideration, it is mitigated in these
    circumstances by the fact that during the period of non-payment, Mr. Crosbie
    was in Jamaica and Ms. Crosbie was in Canada.  The challenges of pursuing
    collection of child support in these circumstances are obvious.

[16]

Retroactive
    increases in child support should be limited to three years except where there
    is a finding of disreputable conduct by the payor spouse:
D.B.S. v. S.R.G
.
, 2006 SCC 37, [2006]
    2 S.C.R. 231.
Such conduct is implicit in the finding at para. 21 that
    Mr. Crosbie threatened Ms. Crosbie to try to prevent her from re-opening the
    issue of child support. Again, we see no basis to interfere.

[17]

Central to the relief sought by both parties, was Mr. Crosbies
    income from 2005 to 2011. Unfortunately, the evidence relevant to this issue
    was unsatisfactory, as noted by the application judge when he commented that
    Mr. Crosbie provided no documentary proof whatsoever of his income or that of
    his spouse, and rejected the only evidence Mr. Crosbie did proffer  his
    testimony.

[18]

Section
    19(1) of the
Guidelines
provides that the court may impute such amount
    of income to a spouse as it considers appropriate in the circumstances.  These
    circumstances include where the spouse has failed to provide income information
    when under a legal obligation to do so.

[19]

The
application judge arrived at an income
    figure for Mr. Crosbie based on the information the parties provided, primarily
    being Ms. Crosbies reconstruction of Mr. Crosbies gross income. While, the
    important task of imputing income is extremely difficult, the reasons should
    demonstrate that, notwithstanding the paucity of evidence, some degree of rigor
    has been applied in arriving at the amount. Here, g
iven Mr. Crosbie was
    self-employed, the application judge should have indicated that he took other
    factors into account such as legitimate business expenses and taxable and
    non-taxable benefits.

[20]

That said, Mr. Crosbie failed to provide evidence to support the
    business expenses he now argues the application judge should have taken into
    account. The application judge used the information the parties provided him to
    arrive at an amount of imputed income. A payor such as Mr. Crosbie, who does
    not disclose income information as required runs the risk that income will be
    attributed to him  accurately or otherwise. The application judges decision
    is entitled to deference. We would not interfere.

[21]

For these reasons, Mr. Crosbies appeal of the relief granted Ms.
    Crosbie in her cross-application, is dismissed.

(3)

Motion to Adduce Fresh Evidence

[22]

Finally,
Mr. Crosbies
    motion to introduce fresh evidence relating to his income for 2008 and 2010 in
    the form of CRA reassessments, is dismissed as the proposed evidence satisfies
    none of the requirements of the test established in
R
. v. Palmer,

[1980] 1 S.C.R. 759
[1]
.
    While the reassessments were from 2012, after the hearing of this application,
    Mr. Crosbie gave no explanation for his failure to produce the income
    documentation he had at the time of the hearing. Further, given the nature of
    Mr. Crosbies business, as noted, we are not persuaded that this proposed
    evidence would have affected the result.

(4)

Consent Amendment

[23]

The parties agree that para. 24 3. of the reasons contains an
    error in the date for the commencement of increased child support.  To avoid
    double-counting, the paragraph should provide that [o]ngoing child support
    payable by [Mr. Crosbie] to [Ms. Crosbie] shall be $611 per month from
    September 1, 2011,  , and the parties have consented to a variation of the
    judgment, accordingly.

(5)

Disposition

[24]

The
    appeal is, therefore, allowed, in part.  The judgment will be varied in accordance
    with these reasons.

[25]

While
    success has been divided, Ms. Crosbie was, for the most part, successful and is
    therefore entitled to her costs.  We would fix those costs in the amount of $3,000
    inclusive of disbursements and applicable taxes.

Janet
    Simmons J.A.

Russell Juriansz
    J.A.

Gloria
    Epstein J.A.





[1]

In civil cases, this court has used two different tests to
    determine the admissibility of fresh evidence  the
Palmer
test (used in criminal cases) and the test established in
Sengmueller 
    v. Sengmueller
(1994), 17 O.R. (3d) 208 (C.A.):

Chiang
    (Re),
2009 ONCA 3, 93 O.R. (3d) 483 at paras. 72-77.   As
    the evidence in this case does not meet either test, it is unnecessary that we
    decide which is correct.


