



COURT OF APPEAL FOR ONTARIO

CITATION:
Selznick v. Selznick, 2012
    ONCA 686

DATE: 20121012

DOCKET: C55060

Doherty, Hoy and Pepall JJ.A.

BETWEEN

Mirilyn Rachel Selznick (now Mirilyn Rachel
    Sharp)

Applicant/Appellant
    in Appeal

and

Stephen Selznick

Respondent/Respondent in Appeal

Stephen Grant, for the appellant

Diane E. Klukach, for the respondent

Heard: September 19 and 20, 2012

On appeal from the order of Justice Susan E. Greer, of
    the Superior Court of Justice, dated November 9, 2011 and January 21, 2012.

ENDORSEMENT

Background

[1]

The parties, both of whom are lawyers, were married in 1992, separated
    in 2001, and divorced in 2005. They have three children, aged 18, 16, and 14.

[2]

The appellant brought a motion for child support to be paid by the
    respondent, her former husband, commencing in January 2011. The motion was
    heard on October 10, 2011. On November 9, 2011, the motion judge released an
    endorsement that was supplemented by additional endorsements dated January 21,
    2012 and July 19, 2012. The order that was the subject matter of these
    endorsements bore two dates: November 9, 2011 and January 21, 2012 and was
    signed on July 26, 2012 (the Order). It addressed monthly child support, s. 7
    expenses under the
Federal Child Support Guidelines
, SOR/97-175

(the
    Guidelines), enforcement by the Family Responsibility Office (FRO), and
    income disclosure.

[3]

The appellant appeals from this Order.

[4]

The record before this court included eight facta and ten compendia. Given
    the state of the record, counsel were asked at the commencement of court to
    identify the issues to be argued on this appeal. Counsel identified the
    following five issues: i) the calculation of the appellants income for the
    purpose of determining the appellants share of the childrens s. 7 expenses
    under the Guidelines; ii) the nanny expense; iii) the Cornell University
    expense; iv) enforcement of the Order by the FRO; and v) the respondents motion
    to file fresh evidence.

Standard of Review

[5]

The Supreme Court of Canada addressed the standard of review for appeals
    of support orders in
Hickey v. Hickey
,
[1999] 2 S.C.R. 518, 172 D.L.R. (4th) 577. As stated in that decision, at para.
    11, appeal courts should not overturn support orders unless the reasons
    disclose an error in principle, a significant misapprehension of the evidence,
    or unless the award is clearly wrong.

Analysis

(i) Appellants Income

[6]

The appellant submits that the motion judge erred in determining her
    2011 income by averaging the appellants income from the years 2008, 2009 and
    2010, when the appellants income was higher than her projected 2011 income.
    The appellant further argues that the motion judge erred in attributing to her $60,000
    in income for the purpose of determining the appellants share of the childrens
    s. 7 expenses under the Guidelines.

[7]

The motion judge noted that the appellants income fluctuated. She
    arrived at the appellants 2011 income figure by averaging the appellants
    income for the three preceding years to reach a figure of $210,615. To this
    figure, she added $60,000 to reach $270,615 because she found that the
    appellant had deliberately chosen to remain home and to only work on a
    part-time basis.

[8]

In the evidence before the motion judge, the respondent contended that
    the appellant worked part-time and could easily earn much more. The appellant
    contended that she worked full-time, albeit from home. No evidence was led on the
    hours docketed by the appellant at her law firm, nor was there any independent confirmation
    of the appellants status at her firm. It was open to the motion judge to
    prefer the respondents evidence. As of October 5, 2011, the date of the
    appellants sworn financial statement, the appellant had a net worth of
    $5,896,137.40, of which $3,551,670.40 represented savings in bank accounts.

[9]

The motion judge did not misapprehend the evidence before her, nor its
    effect. Having regard to the appellants income as a lawyer of significant
    experience at a mid-sized Toronto law firm, the motion judge made no error in
    principle in averaging the appellant's yearly income and attributing to her
    $60,000 in additional partnership income for the purpose of calculating the s.
    7 expenses. We therefore do not give effect to this ground of appeal.

(ii) Nanny Expense

[10]

Secondly,
    the appellant submits that the motion judge erred in denying the cost of the
    nanny as a s. 7 expense.

[11]

Section
    7 of the Guidelines provides the motion judge with discretion to order the payment
    of certain expenses by a party, taking into account the necessity of the
    expense in relation to the childrens best interests and the reasonableness of
    the expense in relation to the means of the spouses and to the familys
    spending pattern prior to the separation.

[12]

It
    was open to the motion judge to exercise her discretion and refuse to treat the
    cost of the nanny as a s. 7 expense. She noted that the children were all
    teenagers. They attended school and had after-school activities. The nanny did
    not drive the children to those activities. The appellant continued to work
    from home and was available to drive the children to activities if necessary. We
    do not give effect to this ground of appeal.

(iii) Cornell University Expenses

[13]

The
    appellant submits that the motion judge erred in her treatment of the eldest
    childs university expenses. We disagree.

[14]

When
    the motion was heard, the eldest child was still in high school and both the
    university she would attend and its location were unknown. As is clear from the
    motion judges January 21, 2012 endorsement, the parties were to agree on the
    university and related expenses, failing which a motion was to be brought. In
    June 2012, when the parties re-attended before the motion judge, the appellant
    estimated the costs for one year at Cornell University to be US$64,145. No
    agreement between the parties was reached and no motion was ever brought.
    Accordingly, there was an inadequate evidentiary record before the motion judge
    and she was not prepared to deal with the eldest childs s. 7 expenses past
    June 30, 2012. This was reasonable in the circumstances. Either of the parties
    may still bring a motion to address the eldest childs university expenses. In
    the meantime, the respondent continues to pay child support for the eldest
    child based on the Guidelines. We do not give effect to this ground of appeal.

(iv) Enforcement by the FRO

[15]

The
    appellant submits that the motion judge erred by permitting the respondent to
    pay his share of the s. 7 expenses directly to third parties or to the
    appellant rather than to the FRO.

[16]

In
    her July 19, 2012 endorsement, the motion judge stated that the s. 7 expenses
    were no longer to be subject to collection by the FRO. The Order contemplated
    that the monthly Guideline child support payments would be paid to the FRO but
    the s. 7 expenses would be paid directly to the third parties or to the
    appellant. It is evident from the motion judges July 19, 2012 endorsement that
    this was done because of a need for tax and other receipts and because the
    amounts were in a state of flux. Section 13(e) of the Guidelines provides that
    where the amount of the s. 7 expense cannot be determined, the proportion to be
    paid by the parties is to be set out in the order. This was done here. We see
    no basis on which to give effect to this ground of appeal.

(v) Respondents Motion to File Fresh Evidence

[17]

The
    respondent brought a motion to file fresh evidence. He abandoned his
    cross-appeal and therefore, apart from the s. 7 claims, his 2011 income was not
    a live issue before this court. The evidence he proposed to file was either
    already before us, was irrelevant and unnecessary, or its absence from the
    record reflected a lack of due diligence.

Disposition

[18]

For
    the reasons given, the appeal is dismissed as is the respondents motion to
    file fresh evidence.

[19]

The
    parties are to make written costs submissions of no more than 3 pages in length.

Doherty
    J.A.

Alexandra Hoy
    J.A.

S.E. Pepall
    J.A.


