



COURT OF APPEAL FOR ONTARIO

CITATION: Decaen v. Decaen, 2013 ONCA 218

DATE: 20130408

DOCKET: C54891

Winkler C.J.O., Armstrong and Hoy JJ.A.

BETWEEN

Denise Decaen

Applicant (Appellant/                                                                                           Respondent
    by way of cross-appeal)

and

Marc Decaen

Respondent
    (Respondent/                                                                            
    Appellant by way of cross-appeal)

Kristen Normandin and Arin Tint, for the
    appellant/respondent by way of cross-appeal

Marc Decaen, acting in person

Carolyn Leach, for the Office of the Childrens Lawyer

Heard: March 1, 2013

On appeal and cross-appeal from the orders of Justice M.
    Gregory Ellies of the Superior Court of Justice, dated January 9, 2012 and
    March 13, 2012, with reasons reported at 2012 ONSC 966.

By the Court:

I.

OVERVIEW

[1]

This is an appeal and cross-appeal in a difficult custody case. The
    mother, Denise Decaen, wishes to move the minor children  twins, Isabelle and Kaleb,
    now eight years of age  from Sudbury to Mississauga, where she now resides. Sudbury
    is where the children have always lived, where their father lives, and where a
    warm and involved extended family also resides. Support is also at issue.

[2]

The trial judge awarded custody to the mother, conditional on her return
    to Sudbury, and, failing her return, to the father.

[3]

Below, we address each of the issues raised by the parties. We conclude
    that there is no basis for this court to interfere with the trial judges
    decision on custody of the twins, either to permit the move sought by the
    mother or the joint-parenting arrangement sought by the father. However, we do
    consider it appropriate to vary the mechanics for implementing the trial
    judges order and slightly modify the terms of access. We also make provisions
    intended to protect the mothers entitlement to retirement-period spousal support
    and address the calculation of support in the period leading up to this appeal.
    Otherwise, we are not persuaded that any of the issues raised by the parties
    warrant appellate intervention.

II.

BACKGROUND

[4]

The mother and father separated in 2007. The mother stayed at home as
    the childrens primary caregiver, while the father worked outside the home to
    provide for the family. They have four children: the twins and two older
    daughters, Denyca and Ashley, now 18 and 23 respectively. After separation, the
    parents relationship became high conflict. The mother denied the father access
    to the children when unhappy with his behaviour, and the family suffered financial
    pressures, including the fathers bankruptcy in 2008.  The Office of the
    Childrens Lawyer (the OCL) became involved.

[5]

In May of 2011, the father learned of the mothers plan to move to
    Mississauga with the twins and obtained a restraining order to prevent the
    move. (The parties agreed that Denyca was old enough to choose with whom she
    wished to live, and she wished to live with the mother.) In the summer of 2011,
    the mother moved to Mississauga, where she had obtained a full-time job. She took
    up residence in the home of her aunt and uncle, who were out of the country. 
    Denyca  then entering her last year of high school  joined her. The twins
    stayed in Sudbury with their maternal grandparents pending the trial. Ashley
    was in her last year of university in Sudbury and also stayed with the
    grandparents.

[6]

Following a nine-day trial, custody of the twins was awarded to the
    mother in January of 2012, conditional on her return to Sudbury. If she did not
    return, custody was awarded to the father. In his detailed reasons, the trial
    judge expressed doubt about the credibility of both parties. The trial judge
    ordered that, given the divided success, neither party be awarded costs of
    trial.

[7]

The mother sought and obtained a stay of the trial judges order. She
    has stayed in Mississauga and the twins have been stranded in limbo  living
    with their maternal grandparents (indeed, sharing beds with them) in Sudbury, and
    missing both parents. An arrangement intended to be temporary has dragged on
    for some twenty months.

[8]

The twins see their mother every other weekend, with some visits in
    Sudbury and some in Mississauga. The twins see their father, now re-married,
    every other weekend, from Thursday at 5 p.m. until Monday morning before
    school. They also have an evening visit with him on the alternate Thursdays
    that they do not stay with him.

[9]

Ashley and Denyca have chosen not to have contact with their father.

[10]

At
    trial, the OCL introduced evidence of the childrens wishes and preferences
    through the testimony of a social worker, Marion Roberts, who had observed the
    interactions between the children and the parents. In May of 2011, the twins
    told her they were happy to be going to Mississauga. By November of 2011, Kaleb
    was no longer positive about the move to Mississauga.

[11]

On
    this appeal, the OCL has filed fresh evidence about the twins situation, views
    and preferences. This evidence comes to the court through the affidavit of a
    different social worker, Shelley Lund. The OCL makes no recommendation except
    to say that a decision must be made. The twins love both parents and wish they
    could be with them more. They are torn and conflicted.

[12]

The
    mother did not oppose the admission of this fresh evidence but did raise
    concerns about the weight it should be given when compared to the OCL evidence
    at trial that was based on a more extensive investigation.

[13]

Where
    child welfare is at stake, a more flexible approach to fresh evidence is
    appropriate:
Catholic Children's Aid Society of Metropolitan Toronto v. M.
    (C.)
,

[1994] 2 S.C.R 165. In this case, the evidence bears
    directly on the best interests of the children, is provided by the OCL and is reasonably
    capable of belief. We therefore admit the fresh evidence on the childrens
    current circumstances.

III.

THE ISSUES ON APPEAL

[14]

The
    mother raises seven issues on this appeal.

[15]

The
    first, and the heart of this appeal, is whether the trial judge failed to
    properly consider the best interests of the children and engage in the analysis
    required by
Gordon v. Goertz
, [1996] 2 S.C.R. 27  the leading
    authority on parental mobility.

[16]

The
    other issues raised by the mother are:

1.       Did the
    trial judge fail to impute sufficient income to the father?

2.       Did the
    trial judge err by not ordering support payable from the date of separation to
    the date of trial?

3.       Did the
    trial judge err in terminating child support for Ashley effective upon
    completion of her undergraduate degree?

4.       Did the
    trial judge err in imputing income to the mother of $45,000 per annum for
    purposes of calculating her entitlement to spousal support, effective two and
    one half years after her return to Sudbury, assuming she in fact returns?

5.       Did the
    trial judge err in ordering spousal support, payable on a periodic basis
    post-retirement, as opposed to lump sum support in an amount equal to one-half
    the increase during the parties marriage of the value of the fathers pension,
    an asset unaffected by his bankruptcy?

6.       Did the
    trial judge err by failing to hear cost submissions?

[17]

In
    his cross-appeal, the father, who represented himself, seeks an order
    eliminating the periodic, post-retirement spousal support ordered by the trial
    judge that was calculated with reference to his pension and an order that his
    income for the purposes of calculating any sharing of s. 7 expenses be net of
    spousal support paid. In his factum, he also seeks an order extinguishing the
    arrears the trial judge found payable, and a slight variance of the holiday
    access ordered by the trial judge. In his oral submissions, he renewed his
    request for the shared parenting arrangement, deemed unworkable by the trial
    judge because of the degree of conflict between the parties.

[18]

We
    now address each of the issues raised by the parties.

IV.

DID THE TRIAL JUDGE FAIL TO PROPERLY APPLY THE BEST INTEREST OF THE
    CHILDREN TEST AND ANALYZE THE FACTORS SET OUT IN
GORDON V. GOERTZ
?

(a)

Summary

[19]

As
    indicated above, we conclude that there is no basis for this court to interfere
    with the trial judges decision about custody of the twins.

[20]

It
    must be remembered that appellate courts are to give considerable deference to
    the decisions of trial judges on custody and access. An appellate court is not
    to overturn a custody order in the absence of a material error, a serious
    misapprehension of the evidence or an error in law:
Van de Perre v. Edwards
,
    2001 SCC 60, [2001] 2 S.C.R. 1014.

[21]

In
    detailed reasons, the trial judge carefully reviewed the applicable legal
    principles. He properly considered the best interests of the children in light
    of the factors set out in
Gordon v. Goertz
, reviewed below. He looked
    at the existing arrangements and relationships between each of the children and
    between the children and the mother and father. He considered the desirability
    of maintaining contact with both parents, the emotional ties between the twins
    and Denyca, the preferences of the children as relayed by the OCL, the mothers
    reasons for moving to Mississauga, and the potential disruption to the twins
    under various scenarios. We are not persuaded that the trial judge made a
    material error, seriously misapprehended the evidence or made an error of law.

[22]

Below,
    we review the factors set out in
Gordon v. Goertz,
summarize the
    parties submissions, and provide a more detailed analysis supporting our
    conclusion that there is no basis for this court to interfere with the trial
    judges decision regarding the custody of the twins.

(b)


Gordon v. Goertz

[23]

In
Gordon v. Goertz
, Justice McLachlin (as she then was), writing for the
    majority, identified a number of factors relevant to a childs best interests
    in the context of possible relocation: (a) the existing custody arrangement and
    relationship between the child and the custodial parent; (b) the existing
    access arrangement and the relationship between the child and the access
    parent; (c) the desirability of maximizing contact between the child and both
    parents; (d) the views of the child; (e) the custodial parents reason for
    moving, only in the exceptional case where it is relevant to that parents
    ability to meet the needs of the child; (f) disruption to the child of a change
    in custody; and (g) disruption to the child consequent on removal from family,
    schools, and the community he or she has come to know.

[24]

At
    para. 50 of
Gordon v. Goertz
, McLachlin J. stated that, [i]n the end,
    the importance of the child remaining with the parent to whose custody it has
    become accustomed in the new location must be weighed against the continuance
    of full contact with the childs access parent, its extended family and its
    community.

(c)

The mothers submissions

[25]

The
    mother argues that the move to Mississauga was necessary for Denyca, who, as will
    be explained below, was emotionally fragile and needed to get away from Sudbury.
    The move also permitted the mother to earn an income.  She argues further that
    the trial judges order failed to give sufficient weight to the fact that,
    since birth, the mother had been the childrens main caregiver. If she did not
    return to Sudbury and the father obtained custody of the twins, the twins
    contact with the mother and with Denyca would be affected.  The mother submits
    that Denyca, with whom the twins have a close relationship, would not return to
    Sudbury. The mother contends that the trial judge erred by giving greater
    weight to maximum contact with the father than to contact with her or with
    Denyca.

[26]

The
    mother also argues that the trial judge erred by not giving greater weight to
    the twins stated preference prior to trial to move to Mississauga. She urges
    that more weight should be given to the OCLs position at trial than to its
    current position because Ms. Roberts, the social worker involved prior to
    trial, had more extensive contact with the family and better understood the
    familial dynamic than Ms. Lund.

[27]

In
    addition, the mother submits in her factum, although not in oral submissions,
    that the trial judge erred in doubting her credibility.

(d)

The fathers submissions

[28]

The
    father submits a parenting plan involving a joint-parenting arrangement as his
    preference. In oral submissions he stated that he saw no significant error in
    the order made by the trial judge.

(e)

Analysis

(i)      Reasons for moving

[29]

As
    indicated above, the mother submits that there are two main reasons for the
    move to Mississauga: her daughter Denyca and the mothers job opportunity there.
    To explain the first reason, some background on Denyca is necessary.  In
    2009/2010, Denyca lived with her father with the intent of moving in with him
    permanently. This plan ended abruptly in August of 2010 when the father was
    charged with sexually assaulting one of her friends. While he denies that he
    committed the offence, the father ultimately pled guilty to simple assault and
    received a conditional discharge. The gossip and social pressures that followed
    this event affected Denyca and her relationship with her father.

[30]

In
    his reasons, the trial judge considered this background. He found that living
    in Mississauga was beneficial for Denyca.

[31]

He
    concluded, at para. 156:

I accept that Denycas condition improved after she left
    Sudbury and that she very much does not wish to return. Unfortunately, there is
    more at stake here than just Denycas best interests. I bear in mind that she
    will be undertaking post-secondary education, beginning in September. It is a
    common occurrence for older children to leave their homes to further their
    education. While I would like to maximize the contact Denyca has with the twins
    in the meanwhile, I also bear in mind that both the [mother] and Denyca chose
    to reduce that contact by living in Mississauga despite the orders which
    prevented the twins from being moved.

[32]

Given
    Denycas age, however, the trial judge focussed more on the needs of the twins.
    He did not commit a reviewable error in doing so.

[33]

Denyca
    is now completing her first year of university. In the fresh evidence filed by
    the OCL, Kaleb explains that his mother usually comes to Sudbury once a month
    and that Denyca usually comes with her. He describes Denyca as spending most of
    her time in Sudbury with her friends: a happy picture, and a normal situation,
    given their age differences.  Ms. Lunds interview with Denyca suggests that
    Denyca has been much affected by the family conflict, is hurt by the lack of a
    relationship with her father, and thinks sometimes about going back to Sudbury
    when things are particularly difficult. Her commitment to Mississauga appears
    more equivocal than at the time of trial.

[34]

The
    mother, in her interview with Ms. Lund, described Denyca as improving but still
    emotionally unstable, and expressed the opinion that the eight-year-old twins
    would manage her absence better than would Denyca. The mother also advised that
    Denyca had discontinued therapy because she had not connected well with her
    therapist. No medical evidence in relation to Denyca was filed as fresh
    evidence.

[35]

Time
    has passed since the incident that caused so much distress to Denyca. And while
    we appreciate that the mother would ideally wish to be available to all her
    children, Denyca is now almost nineteen and nothing in the fresh evidence
    warrants re-visiting the trial judges balancing of factors here.

[36]

As
    to the ability to earn an income as a reason for the move, the trial judge
    found that the mother had not demonstrated to this courts satisfaction that
    the job she took in Mississauga is the only real chance she has to re-enter the
    workforce. He described the mothers evidence on this key point as vague and
    unconvincing. We are not persuaded that the trial judges finding amounts to a
    palpable and overriding error.

(ii)      Other factors

[37]

As
    required by
Gordon v. Goertz
, the trial judge considered a wide range
    of factors relevant to the twins best interests in the context of possible
    relocation to Mississauga. He considered that the mother had been the
    childrens main caregiver since birth. Indeed, he concluded, based on all of
    the evidence, that she should be given custody, but subject to an order
    restraining her from removing the twins from the Greater Sudbury area.

[38]

He
    also considered that living in Mississauga would significantly reduce the
    access enjoyed by the twins with their father. The fathers continued
    employment in Sudbury was critical to the financial health of the family. The
    twins had already changed schools three times in Sudbury. They were close to
    their extended families, and especially enjoyed time at the fathers familys farm
    and camp. The Mississauga school was very far away from everything and
    everyone that the twins have known their entire lives (at para. 158).  The trial
    judge concluded that it would be in the twins best interests to remain close
    to their extended families in the Greater Sudbury area.

[39]

As
    for the twins contact with Denyca, the trial judges emphasis on maximum
    contact with both parents was consistent with the findings in the OCL report
    that Denycas current focus was now, as is appropriate for her age, on her own
    peers rather than on her young siblings.

[40]

The
    trial judge considered the twins views and preferences but only to a limited
    extent. One reason for this was the twins young ages for reasons I probably
    do not have to expand upon (at para. 165).  The mother argues that the trial
    judge erred by not explaining why less weight should be accorded to the
    preferences expressed by young children.

[41]

We
    do not agree that the trial judges failure to elaborate amounts to an error,
    but offer this further explanation. It is thought that the expressed
    preferences of young children are more likely to be fleeting, subject to
    external influence, and inconsistent with their actual best interests.  A
    childs request to dine on candy alone is likely inconsistent with her best
    interests.

[42]

In
    assessing the significance of a childs wishes, the following are relevant: (i)
    whether both parents are able to provide adequate care; (ii) how clear and
    unambivalent the wishes are; (iii) how informed the expression is; (iv) the age
    of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the
    length of time the preference has been expressed for; (viii) practicalities;
    (ix) the influence of the parent(s) on the expressed wish or preference; (x)
    the overall context; and (xi) the circumstances of the preferences from the
    childs point of view: See Bala, Nicholas; Talwar, Victoria; Harris, Joanna,
    The Voice of Children in Canadian Family Law Cases, (2005), 24 C.F.L.Q. 221. It
    is apparent that the trial judge considered all of these relevant factors.

[43]

The
    trial judge found that the father was a viable second choice as a custodial
    parent, if the mother chose to live in Mississauga. We are not persuaded that
    he made a reviewable error in so concluding.

[44]

In
    addition, the trial judge found that the childrens wishes were not necessarily
    unambivalent or informed (a finding supported by the fresh evidence), and also
    that the mother had likely influenced the twins. In this context he referenced
    the twins mention of a swimming pool that would be nearby in Mississauga as
    well as their comment that they could still keep in touch with their friends
    via Facebook. The mother argues that there were ways that the children could
    have learned about the swimming pool other than through her deliberate
    interference. That may be so, but it was not unreasonable for the trial judge
    to consider the possibility that the views and preferences expressed by these
    young children were not entirely their own.

[45]

The
    trial judge also discounted the weight of Ms. Roberts testimony about the
    views and preferences of the children for two reasons. The first was that Ms.
    Roberts was aware of the position that the OCL planned to take before she met
    with the parties and the children. The second is that she referred to no notes
    while testifying about numerous meetings conducted over many months.  The trial
    judge felt that it defied logic that she could remember accurately all that
    transpired during those meetings without any reference to notes. We see no
    reversible error in the trial judges careful consideration of this evidence.

[46]

Finally,
    the trial judge gave detailed reasons for his conclusion that the credibility
    of both the mother and the father was in doubt. There is in our view no basis
    for upsetting those findings either.

V.

AMOUNT OF INCOME IMPUTED TO THE FATHER

[47]

The
    mother argues that the trial judge failed to impute sufficient income to the
    father. Specifically, she submits that the trial judge erred in failing to
average
the fathers past three years of income.

[48]

We
    do not accept this argument.

[49]

The
    trial judge found that the father had failed to disclose income and he
    accordingly considered the pattern of the fathers income from 2005 forward.
    Having done so, he determined, for a variety of reasons, that it was
    appropriate to use the fathers projected income for 2011 as a starting point
    for imputing income for the purposes of calculating support.

[50]

Section
    17 of the
Child Support Guidelines,
O.
    Reg. 391/97,
provides that where the court is of the opinion that
    determining a parents income using the T1 General form issued by the Canada
    Revenue Agency would not be the fairest determination of that income, the
    court may have regard to the spouses income over the last three years and
    determine an amount that is fair and reasonable in light of any pattern of
    income, fluctuation in income or receipt of a non-recurring amount during those
    years. The language in section 17 is permissive rather than mandatory,
    allowing the court to look at the spouses income over the last three years in
    appropriate circumstances. Here the trial judge did actually look at the
    fathers income over those three years. What he did not do was average the
    income over those three years. There is no requirement that he do so.

VI.

COMMENCEMENT DATE OF SPOUSAL SUPPORT OBLIGATION

[51]

The
    trial judge ordered the payment of spousal support commencing January 1, 2012. 
    The mother argues that the trial judge erred because he did not order spousal
    support from the commencement of proceedings on October 16, 2007.

[52]

We
    do not agree. The mothers argument ignores the interim, interim support orders
    made prior to trial and the fact that she remained in exclusive possession of
    the matrimonial home  and the father was required to pay all expenses related to
    the home  until it was sold in March of 2009. The parties separated on October
    16, 2007. On November 2, 2007, Gauthier J. ordered the father to pay the mother
    the sum of $5,000 as spousal support, awarded the mother exclusive possession
    of the matrimonial home, and ordered the father to pay all expenses related to
    the home, on an interim, interim basis. On January 31, 2008, Hennessy J. ordered
    the father to pay spousal support at the rate of $1,100 per month, effective
    February 1, 2008.  On June 4, 2009, Hennessy J. ordered that, effective July 1,
    2009, the father pay spousal support at the rate of $1,054 per month, based on
    an annual income of $85,000.  Indeed, the trial judge concluded that the father
    effectively overpaid spousal support for those periods and awarded him a
    credit.

VII.

TERMINATION OF CHILD SUPPORT FOR ASHLEY

[53]

The
    mother argues that the trial judge erred by terminating child support for
    Ashley on April 30, 2012, upon the completion of her final year of
    undergraduate studies. We disagree.

[54]

Again,
    some background is necessary.

[55]

The
    father is not Ashleys biological father. The mother became pregnant with
    Ashley while in high school. The parties met about two years after Ashley was
    born and, after they married, the father adopted her. The father learned that
    Ashleys biological fathers spouse was a professor at Laurentian University,
    where Ashley was studying. After the parties separated, he approached the
    biological father to see if, through that connection, Ashley could obtain free
    tuition. Ashley, who had not had any contact with her biological father since
    shortly before her fourth birthday, was incensed and has not spoken to the
    father since. The trial judge characterized the fathers contact of the
    biological father as ill-advised and Ashleys reaction as predictable.

[56]

At
    trial, Ashley was in the final year of her undergraduate degree and employed
    part-time. She planned to pursue graduate level studies and, since the trial,
    has done so. There was no evidence as to the amount of her expenses at the time
    of trial, and the trial judge did not order s. 7 (special or extraordinary)
    expenses. The trial judge therefore ordered the father to continue to pay child
    support for Ashley until the completion of that school year  April 30, 2012.
    He expressed the hope that the payments had and would be continued to be used
    to assist her with her educational expenses. The trial judge concluded, at
    para. 188, that, it would be unreasonable for her to expect to be supported by
    him during the pursuit of a graduate degree, especially when she refuses to
    even speak to him.

[57]

The
    mother argues that the fact that Ashley is not speaking to her father should
    not disentitle her to continued support during her graduate studies,
    particularly because his conduct was the cause of the alienation.

[58]

Without
    considering whether Ashleys termination of contact with the father would have
    entitled him to cease paying child support, the mothers submission
    mischaracterizes the trial judges reason for ending support for Ashley as of
    the end of her undergraduate degree. There was extensive evidence before the
    trial judge of the familys limited financial resources. While parents of
    significant means may be ordered to pay support for a second degree, support
    for a second degree is very much subject to the parents ability to pay:
N.
    (W.P.) v. N.(B.J.),
2005 BCCA  7, 249 D.L.R. (4th) 352. The trial judge
    concluded that, within the context of this family, it was appropriate that the
    fathers support obligation to Ashley end with her undergraduate studies. We
    agree. While the trial judge adverted to the lack of contact, it was an
    additional, not a determinative, factor.

VIII.

IMPUTATION OF INCOME TO THE MOTHER EFFECTIVE TWO AND ONE- HALF YEARS
    AFTER HER RETURN TO SUDBURY

[59]

The
    mother raised in her factum the issue of imputing income to her effective two
    and one-half years after her return to Sudbury. She did not raise this in oral
    submissions. We will address it briefly.

[60]

The
    trial judge considered spousal and child support payable if the mother stayed
    in Mississauga and if the mother returned to Sudbury.  The evidence was that
    the mother earned $45,000 per annum at her Mississauga-based job.  The trial
    judge first concluded that if the mother remained in Mississauga she would be
    entitled to support for five years, commencing January 1, 2012. For the period
    January through April, 2012, spousal support was fixed at $600 per month. For
    the remainder of the period, spousal support was to be payable at $750 per
    month.

[61]

The
    trial judge then determined that if the mother returned to Sudbury, she was
    capable of returning to the work force within a period of two and one-half
    years. For the first two and one-half years, she would be entitled to support
    of $1,300 per month. Thereafter, she would be entitled to the same support as
    if she had remained in Mississauga, namely the $750 per month that assumed that
    she was earning $45,000 per year.

[62]

The
    trial judge specifically noted, at para. 195, that if there were a material
    change in circumstances, either party could apply to vary his order, and
    failure of the mothers future employment to materialize would constitute a
    material change sufficient to warrant review.

[63]

The
    parents have spent a great deal on legal fees they can ill-afford. Under these
    circumstances, the trial judge strived, admirably, to create a framework that
    addressed the various possibilities and would reduce the need of the mother and
    father to return to court. The trial judge made no error by attempting to
    estimate the mothers future income.

IX.

retirement period SPOUSAL SUPPORT

[64]

The
    mother and father both take issue with the trial judges order for periodic spousal
    support payable when the father retires, calculated with reference to the
    fathers pension.

[65]

Factors
    to consider in determining the amount and duration of support are set out in subsection
    33(9) of the
Family Law Act
, R.S.O. 1990, c. F.3, as amended.

[66]

On
    October 22, 2008, the father made an assignment into bankruptcy. The
    matrimonial home was sold in March of 2009. The fathers share was paid to his
    trustee in bankruptcy; the mothers share was paid to her. The fathers
    employment pension (with the exception of contributions made within 12 months
    of the date of bankruptcy) was an exempt asset under s. 67(1) of the
Bankruptcy
    and Insolvency Act,
R.S.C., 1985,
    c.B-3
and survived bankruptcy. The parties agreed that the mothers
    entitlement to an equalization of net family property became unenforceable as a
    result of the fathers bankruptcy. At trial, the mother sought lump sum support
    in an amount equal to 50 per cent of the fathers pension.

[67]

The
    trial judge ordered the father to pay the mother an amount equal to one-half
    the value by which his pension increased between the date of marriage and the
    date of separation by means of periodic spousal support commencing on the first
    day of the month following the earlier of the date upon which he retires or the
    date upon which he is first eligible to retire.  At trial, there was no
    evidence as to this value, and the trial judge did not indicate the amount or
    duration of the periodic, retirement-period support payments.

[68]

By
    the time of the appeal, the parties had received information that this value is
    $54,000.

[69]

The
    father argues that the trial judge erred in two respects in awarding retirement-period
    support. First, the trial judge did not consider whether the mother would have
    been entitled to an equalization payment, but for the bankruptcy. Second, the
    award of retirement-period spousal support, calculated  with reference to his
    pension, amounted to a re-allocation of capital in the guise of spousal
    support.

[70]

The
    mother argues that the trial judge erred in failing to order immediate payment
    of lump sum support in the amount of $54,000. She requests that this court now
    make that order and suggests that this amount may be available to the father
    from the pension to satisfy a family law award. The mother also argues that the
    trial judge failed to consider the possible impact of the fathers death prior
    to, or early in, his retirement in crafting his support order.

[71]

The
    Supreme Court has stressed the need for significant deference to trial judges
    in relation to support orders, noting that the discretion involved in making a
    support order is best exercised by the judge who has heard the parties
    directly. This approach promotes finality in family law litigation and
    recognizes the importance of the trial judges appreciation of facts in this
    context:
Hickey v. Hickey
, [1999] 2 S.C.R. 518.

[72]

The
    trial judge engaged in a thorough analysis of the interaction between
    bankruptcy and family law as discussed by the Supreme Court of Canada in
Schryer
    v. Schryer
, 2011 SCC 35, [2011] 2 S.C.R. 605 (S.C.C.). In particular, at
    para. 37 of that decision, the Supreme Court of Canada acknowledged the
    inequity that arises where a bankrupt is released from an equalization claim
    and permitted to retain an exempt asset. It also posited that a support order
    might be used to mitigate the inequity.

[73]

The
    trial judge concluded that without a further order of spousal support payable
    at a point in time when the parties will retire, the task of reconciling the
    economic advantages enjoyed by the father and the economic disadvantages
    suffered by the mother as a result of the duties assumed by the mother during
    the course of their cohabitation would not be complete.  While it is true that
    the trial judge, in ordering retirement-period support equal to one-half the
    value by which the fathers pension increased between the date of marriage and
    the date of separation, might appear to have conflated the principles relevant
    to equalization payments versus spousal support awards, the amount awarded for
    spousal support is not unreasonable in this case and we would not disturb the
    order.

[74]

As
    for the mothers argument that the trial judge should have made an order for an
    immediate payment of a lump sum, we see no basis to interfere. The trial judge
    considered the effect of the Supreme Courts decision in
Kerr v. Baranow
,
    2011 SCC 10, [2011] 1 S.C.R. 269 as well as this courts discussion about lump
    sum spousal support payments in
Marriano v. Marriano
, [1992] O.J. No.
    2730 and more recently in
Davis v. Crawford
, 2011 ONCA 294, 106 O.R.
    (3d) 2011.  Ability to pay is one of the factors to consider in making any
    award for spousal support. Here, while the father could apply for an immediate
    transfer of a lump sum from his pension plan for the purposes of satisfying an
    equalization payment order, the eligibility requirements under subsection
    67.3(1) of the
Pension Benefits Act
, R.S.O. 1990, c P.8 do not apply
    to a transfer to satisfy a spousal support order. The
Family Law Act
mirrors this by providing at subsection 10.1(3) that an order to satisfy an
    equalization payment may provide for the immediate transfer of a lump sum out
    of a pension plan, but not for any other division of a spouses interest in the
    plan.

[75]

Absent
    any evidence from the mother that the pension plan
would
allow for an
    immediate transfer to satisfy a spousal support award, we see no error in the
    trial judges assessment that the father would have no ability to immediately
    satisfy an order for lump sum support in the amount of $54,000.

[76]

We
    are, however, persuaded that the trial judge failed to consider the risk to the
    mother if the father dies before he retires or is eligible to retire, or before
    he has paid a total of $54,000 of retirement-period support to the mother. On
    an application for support, the court may make orders requiring that a spouse
    who has an interest in a pension plan designate the other spouse under the plan
    and not change that designation, and securing payment, by a charge on property
    or otherwise. See ss. 34(1) (j) and (k) of the
Family Law Act.


[77]

We
    would accordingly add to the trial judges order that any portion of the total of
    $54,000 of retirement-period support not yet due and payable at the time of the
    fathers death shall become due and payable upon the fathers death and,
    together with any retirement-period support due and unpaid at the time of the
    fathers death, be paid out of any amounts payable out of or in respect of his
    pension as a result of, or subsequent to, his death. (Unfortunately, no details
    were provided to the court with respect to survivor benefits under the fathers
    pension plan.) Further, the father must maintain the mother as a designated
    beneficiary of the pension plan, to the extent of her entitlement to retirement-period
    support totalling $54,000. Any amounts of retirement-period support due but
    unpaid at the time of the fathers death would of course also be liabilities of
    his estate.

[78]

As
    the parties submit, the trial judges order does not specify the amount or
    duration of the periodic, retirement-period support payments. Since the trial,
    the parties were able to quantify the total amount of retirement-period support
    ordered by the trial judge, namely $54,000. Armed with this information not
    available to the trial judge, and in an attempt to avoid a further costly
    attendance by the parties, we also add to the order that periodic retirement-period
    support be paid at the rate of $1,054 per month prior to the fathers death,
    until a total of $54,000 has been paid. This is the amount of monthly spousal
    support that Justice Hennessey ordered the father to pay prior to trial, in
    addition to child support in the amount of $2,500 per month. While the fathers
    income will be presumably reduced in retirement, he will similarly presumably
    have no child support obligations, and the $1,054 will not be an unreasonable
    amount for him to pay. It is of course open to the parties to seek to vary this
    order in the event of a material change in circumstances.

X.

NO OPPORTUNITY TO MAKE COST SUBMISSIONS

[79]

The
    trial judge indicated that, as success in the matter was mixed, neither party
    would be awarded costs.

[80]

The
    mother argues that the trial judge erred because he failed to obtain and
    consider cost submissions before making this order. She argues that there were
    settlement offers that might have affected the costs award.

[81]

Subrule
    24(6) of the
Family Law Rules
provides that where success in a case is
    divided, the court may apportion costs as appropriate. Success, as the trial
    judge found, was divided.

[82]

Subrule
    2(2) of the
Family Law Rules
indicates that the primary objective of
    the rules is to enable the court to deal with cases justly. Subrule 2(3)
    provides:

Dealing with a case justly includes,

(a) ensuring that the process is fair to all
    parties;

(b) saving expenses and time;

(c) dealing with the case in ways that are
    appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case
    while taking account of the need to give resources to other cases.

[83]

Subrule
    18(14) of the
Family Law Rules
does provide that a party who makes an
    offer is, unless the court orders otherwise, entitled to costs to the date the
    offer was served and full recovery of costs from that date so long as a number
    of conditions are met.

[84]

However,
    the burden of proving that the order is as favourable as or more favourable
    than the offer to settle is on the party who claims the benefit of subrule
    (14). In this case, the burden lies with the mother. While it is true that the
    trial judges decision not to solicit cost submissions may have frustrated her ability
    to meet this burden at trial, she also did not file fresh evidence on this
    appeal of any settlement offers. Since the mother has not met her burden of
    proof, we see no reason to interfere with the trial judges order as to costs.

XI.

THE FATHERS REMAINING ISSUES: THE CALCULATION OF SECTION 7 EXPENSES AND
    ARREARS

[85]

With
    the exception of his submissions about the calculation of his share of s. 7
    (special or extraordinary) expenses and the trial judges calculation of arrears,
    we have addressed the fathers submissions in the course of responding to the
    issues raised by the mother.  We now address his two remaining submissions.

[86]

The
    father correctly submits that s. 3.1 of
Schedule III of the Federal Child
    Support Guidelines
, SOR/97-175, provides that spousal support paid shall
    be deducted for the purpose of calculating income for the purpose of
    determining an amount under s. 7 (special or extraordinary expenses) of the
    Guidelines. He argues that the trial judge failed to do so. However, in our
    view, properly read, the trial judges reasons contemplate that this will in
    fact be done.

[87]

The
    trial judge found that, except with respect to Ashley, there was no evidence
    that s. 7 expenses were being incurred. (As noted above, in the case of Ashley,
    the father was not ordered to pay a share, given the absence of evidence as to
    the amount of those expenses). At para. 193, the trial judge wrote that the
    parties should bear any future s. 7 expenses in proportion to their incomes, in
    accordance with the Guidelines.

[88]

The
    Guidelines require deduction of spousal support for the purpose of those
    calculations. The confusion arises from a passage at para. 194 of the trial
    judges reasons. The trial judge required that in the event that the mother
    returned to Sudbury, then commencing two and one-half years after her return,
    the s. 7 expenses, shall be borne in proportion to [the fathers] income of
    $114,762 as against imputed income of the part of [the mother] of $45,000 per
    year. In our view, given the trial judges earlier reference to the
    Guidelines, this should be interpreted as referring to the fathers imputed
    income of $114,762, less amounts then paid for spousal support. In any event,
    the issue does not appear to be significant. By the time that this sharing
    arrangement will come into effect, Denyca should be almost finished university,
    and the twins will still be far away from it. There may well be no s. 7
    expenses during the applicable time. We therefore reject this ground of appeal
    by the father.

[89]

As
    for the calculation of arrears, the trial judge determined what cash payments
    had been made to the mother, and the effect of Justice Hennessys order
    regarding arrears. In addition to not having raised the issue of the arrears in
    his notice of cross-appeal, the father has not established either that the
    trial judge made a palpable and overriding factual error in determining the
    amount that he had paid or erred in law in his interpretation of Justice
    Hennessys endorsement. There is no basis to interfere with his conclusion.

XII.

ADJUSTMENTS TO THE TRIAL JUDGES ORDER AS THE RESULT OF THE PASSAGE OF
    TIME

[90]

As
    a result of the passage of time, several aspects of the trial judges order
    must be adjusted.

(a)

Custody and
    access

[91]

Paragraph
    6 of the trial judges order provides that if the mother is unable or unwilling
    to accept custody of the twins within 14 days of January 9, 2012, the father
    shall have custody of the twins. The father agrees that it would be
    unreasonable for the mother to have only 14 days to assume custody of the twins
    in Sudbury following the release of these reasons: she is working and must give
    notice. In addition, Denyca will finish the school year near the end of April.

[92]

Accordingly:

(1)

the mother shall notify the father in writing within ten days of the
    release of these reasons as to whether she is willing and able to accept
    custody of the twins in Sudbury on or before June 1, 2013, and, if she is
    willing and able to do so, the date on or before June 1, 2013 on which she
    shall do so;

(2)

the father shall have interim custody of the twins pending receipt of
    such notice, and, if the mother advises that she shall assume custody of the
    twins in Sudbury on or before June 1, 2013, until the mother actually assumes
    custody of the twins in Sudbury in accordance with the notice;  and

(3)

if the mother fails to so notify the father, notifies the father that
    she is unable or unwilling to accept custody of the twins in Sudbury on or
    before June 1, 2013, or, having notified the father that she will accept
    custody of the twins in Sudbury on or before June 1, 2013, fails to accept
    custody of the twins in Sudbury on or before June 1, 2013 in accordance with
    her notification to the father, the father shall have custody of the twins.

(4)

while the father has interim custody, the mother shall continue to have
    access to the twins every other weekend, in Sudbury or in Mississauga, in
    accordance with the current pattern of access; and

(5)

otherwise, access shall be as ordered by the trial judge except that (i)
    during summer holidays, the parents shall share the childrens holidays on a
    two weeks about (as opposed to a week about) basis, with the non-custodial
    parents first two weeks to commence on the first Monday after the children
    finish the school year, and (ii) the custodial  parent shall give the
    non-custodial parent at least one months notice of the specific dates on which
    the non-custodial parent shall have the children at Christmas with Christmas
    day to be alternated each year between the custodial and non-custodial parent.

(b)

Support

[93]

The
    stay order applied to the entire order of the trial judge, including the
    provisions relating to support. Accordingly, except for January and February
    2013, for which the father made no payments, the father continued to pay child
    support of $2,500 per month with respect to all four children in accordance
    with the interim order of Justice Hennessy of January 31, 2008, and spousal
    support of $1,054 per month in accordance with Justice Hennessys interim order
    of June 4, 2009.

[94]

The
    period pending appeal, during which the twins were in limbo, created a scenario
    not envisaged by the trial judge and has resulted in further over-payments of
    spousal and child support by the father, for which he should receive credit.

[95]

The
    trial judge determined that for the period during which the mother was employed
    in Mississauga, she should receive spousal support in the amount of $600 per
    month until May 1, 2012, and thereafter at the rate of $750 per month.
[1]
Therefore, the father over-paid spousal support at the rate of $454 ($1,054 - $600)
    per month for the ten months commencing July 1, 2011 and ending April 30, 2012,
    or a total of $4,540 for that ten- month period. For the eight months of May through
    December 2012, the father overpaid at a rate of approximately $304 ($1,054 - $750)
    per month, or a total of $2,432.  He should accordingly be credited a total of
    $6972 ($4540 + $2432) for overpayment of spousal support in respect of the
    period July 1, 2011 through December 31, 2012.

[96]

The
    trial judges order required the father to pay $2,470.02 in support for all
    four children in respect of the period January 1, 2012 to April 30, 2012. The
    father paid support at the rate of $2,500, resulting in a total overpayment in
    respect of that four-month period of $120. Thereafter, child support was
    payable at the rate of $2,076.58 per month, resulting in an overpayment of
    $423.42 ($2,500 - $2,067) per month for the eight months of May through December
    2012, or a total of $3,387 for that eight month period. The father should
    accordingly be credited a total of $3,507 ($120 + $3,387) for overpayment of
    child support in respect of 2012.

[97]

Thus,
    in total, the father should be credited $6,972 + $3,387 = $10,359 for these
    overpayments. This is in addition to the credits for overpayment of child
    support for 2009 and 2010 and spousal support for 2009 the trial judge provided
    for at paras. 228 and 230 of his reasons. As contemplated by the trial judge, these
    overpayments should be deducted from the arrears owing by the father. Should
    the overpayments exceed the arrears, the overpayments shall constitute a credit
    in respect of the spousal support payable in the post-retirement period. We
    understand that no payments have yet been made in 2013.

XIII.

DISPOSITION AND COSTS

[98]

The
    mothers appeal is dismissed, except to the extent of the variation of the
    trial judges order provided for in para. 77 of these reasons to reduce the
    risk to the mother that the periodic, retirement-period support ordered by the
    trial judge would not be paid. The fathers cross-appeal is dismissed. However,
    the trial judges order shall be slightly varied and clarified, as indicated
    above. Given the divided success, there shall be no order as to costs of the
    appeal.

Released: Apr 8, 2013

WKW                                                                Warren
    K. Winkler C.J.O.

Robert
    P. Armstrong J.A.

Alexandra
    Hoy J.A.





[1]
It appears to us that the trial judge made an error at para 231 of his reasons.
    At para. 207 of his reasons, the trial judge fixed support for the period that
    the mother lived in Mississauga prior to May 1, 2012 at the rate of $600 per
    month. He indicated that he would deal with the start date of that rate of
    support below, in his section dealing with retroactive support. In addressing
    retroactive support at para. 231, the trial judge determines that the
    Mississauga rate of support should commence on July 1, 2011. He then,
    however, uses the amount of $454 in his calculations in that paragraph, which
    he describes as roughly in the mid-range of the amount suggested by the Spousal
    Support Advisory Guidelines (SSAG). However, as indicated at para. 207 of his
    reasons, the range called for by the SSAG was between $485 and $1,036 per
    month. $ 454 was outside of the SSAG and is the amount per month by which the
    father had over-paid support if the correct rate was $600 per month. In our
    view, the trial judge intended the $600 per month amount referenced in para.
    201 to apply during this period and we have made our calculations on this basis


