



COURT OF APPEAL FOR ONTARIO

CITATION: Vale v. Vale, 2022 ONCA 278

DATE: 20220407

DOCKET: C69016

Pardu, Paciocco and Thorburn
    JJ.A.

BETWEEN

Lisa
    Michelle Vale

Applicant (Respondent)

and

Michael Vale

Respondent (Appellant)

Anna Towlson, for the appellant

Caroline Kim, for the respondent

Diane McInnis, for the Office of the
    Childrens Lawyer
[1]

Heard: March 22, 2022 by video conference

On
    appeal from the orders of Justice James W. Sloan of the Superior Court of
    Justice, dated December 9, 2020 and December 22, 2020.

REASONS FOR DECISION

[1]

Mr. Vale appeals from the following final orders made on a motion by Ms. Vale:

1.

The
    child E shall primarily reside with the mother.

2.

The
    father shall exercise access to E in accordance with her wishes.

3.

Child
    support, commencing January 1, 2021, shall be in the guideline amount of $1,244.00
    per month, payable by the father to the mother.

4.

Child
    support arrears as of December 9, 2020 are set at $3,678.00, payable by the
    father to the mother.

5.

The mother shall have the right to send medical receipts for the
    children directly to the fathers health insurance company and receive the
    reimbursement money directly from them. The father shall cooperate in setting
    this mechanism up.

[2]

The issue of special or extraordinary expenses under s. 7 of the
Federal Child Support Guidelines
, SOR/97-175 [the
Guidelines
] was adjourned to a later date.

[3]

The parties were married on July 23, 2004. They have three children: Z,
    born in 2002; E, born in 2006; and N, born in 2007. The parties separated on
    December 9, 2016.

[4]

Ms. Vale began divorce proceedings and also claimed custody and child
    support, together with other relief related to the breakdown of the marriage. The
    Office of the Childrens Lawyer [the OCL] became involved and recommended joint
    custody and a shared alternating week parenting schedule.

[5]

The parties entered into a comprehensive separation agreement on
    December 12, 2018. They agreed to the recommendations of the OCL and agreed to
    continue to negotiate the details of a comprehensive parenting plan. The
    agreement indicated that the parties were to try to resolve any future
    differences between them, but if it was unreasonable to expect a difference
    between the parties to be resolved by negotiation or continued negotiations,
    any such difference would be resolved by a court upon application of either
    party.

[6]

The terms of the separation agreement were not incorporated into a final
    order in the divorce proceedings, which were left without any final
    disposition. Ms. Vale filed the separation agreement with the court for
    enforcement.

[7]

Differences arose between the parties about health insurance
    reimbursement for the substantial health care expenses for the children.
    Because of changes in the parties incomes, Ms. Vale also submitted that she
    was entitled to a recalculation of the child support then paid to her, which
    was based on an offset taking into account the alternating week schedule and
    the parties incomes, applying the
Guidelines
.

[8]

In March 2020, E stopped staying with Mr. Vale and began living full
    time with her mother. Her decision was supported by the OCL.

[9]

Ms. Vale brought the motion leading to the orders in dispute on this
    appeal on July 13, 2020. At the hearing of the motion, counsel for the mother
    observed that the father would not acknowledge that E was living with her
    mother. The motion judge responded that there was now that acknowledgement and
    told both counsel that theres going to be an interim without prejudice order
    to take that off the table.

[10]

The
    father would not consent to an order that E reside with her mother but
    indicated that he was not asking that the child be removed from her mothers
    home or be forced to live with each parent in alternating weeks. He accepted
    that his obligations to pay child support had to be recalculated as a result of
    that change. He proposed that the parties engage in some form of dispute
    resolution and argued that the issue of child custody was not properly before
    the court.

[11]

The
    mother requested a change in child support to $1,244.00 per month because of
    the change in Es residence in March 2020. The father had been paying $723.00
    per month based on the circumstances before the change in Es residence,
    without increasing the support payable.

[12]

The
    father acknowledged that the mothers calculation of $1,244.00 per month was
    mathematically correct, based on the parties incomes and the
Guidelines
. He was concerned about future expenses that
    might be required for Zs post-secondary education, although he essentially
    acknowledged that those expenses were covered by other resources available to Z
    for the period then in issue. The fathers income was approximately $116,000
    per annum and the mother earned a little over $55,000 per year. The father said
    because Z was an adult child and because of substantial s. 7 expenses for
    counseling, he wanted to take a holistic approach to child support and pay $1,000.00
    per month instead of $1,244.00.

[13]

The
    mother sought arrears. She proposed that although E had been with her full-time
    since March 2020, arrears should be paid effective from July 2020. Although the
    separation agreement contemplated yearly exchange of income tax information,
    that never occurred. Both parties acknowledged that the separation agreement
    provided that the parties would adjust child support every year beginning July
    1 and would also adjust it to reflect any change in the residence of a child.
    The father agreed that, assuming he was to pay $1,000.00 per month in child support,
    he owed $2,514.00 in arrears. The mother based her calculations on the father
    having to pay $1,244.00 per month, resulting in arrears of $3,678.00.

[14]

The
    mother had incurred over $12,000 in s. 7 expenses for the childrens health
    care. The parties had been unsuccessful in navigating the fathers health
    insurance plan to secure reimbursement for those expenses. The mother stated
    that she was paying over $700 per month just for psychologists, and that the
    father would not submit the bills to his insurer.

[15]

After
    hearing from counsel, the motion judge stated: Therell be an interim without
    prejudice order. I think [Es] principal residence [will be] with mom. She will
    see dad when she wants to. Im going to set the arrears of child support at $3,678
    and I dont see any reason why the ongoing support isnt $1,244 per month. He
    went on to make an order permitting the mother to file claims with the fathers
    health insurer directly and directed the parties to file written submissions regarding
    costs. He adjourned the issue of s. 7 expenses to another date.

[16]

The
    actual endorsement signed by the judge did not specify whether the orders made
    were temporary or final. The parties sought clarification on this point from
    the motion judge and on December 14, 2020, the motion judge clarified that all
    orders made were final orders.

[17]

Ultimately,
    the motion judge awarded costs to Ms. Vale in the amount of $22,541.81.

[18]

This
    is a high conflict family. The motion had been adjourned three times without
    any increase in support by the father.

Analysis

(1)

The Separation Agreement and Relevant Statutory Provisions

[19]

Paragraph
    10(2) of the separation agreement included the following term for adjustment of
    child support on an annual basis:

(2) Commencing June 1,
    2019 and on June 1st in every year thereafter, the parties will exchange their
    income tax information and they will determine the appropriate child support
    payable for the children and such adjustment of child support will commence on
    July 1st in any subsequent year after considering the residence of the
    child(ren) and the income of both parties. If the parties do not agree about
    the adjustment to be made, they will use the section of this Agreement entitled
    Dispute Resolution to resolve the issue.

[20]

Section
    35(1) of the
Family Law Act
, R.S.O. 1990, c. F.3
provides
    that a person who is a party to a domestic contract may file that contract with
    the Family Court of the Superior Court of Justice.

[21]

Section
    35(2) provides that a provision for support or maintenance contained in a
    contract that is filed in this manner may be enforced, varied under s. 37 or
    recalculated under s. 39.1 of the
Act
.

[22]

Section
    39.1 contemplates that a service operated by the government of Ontario will
    recalculate child support according to the
Guidelines
.
    If a party to an order for child support believes that the income information
    on which the order was based has changed, the party may apply to this service
    for a recalculation of the support payable.

(2)

Did the Motion Judge Err by Varying Support?

[23]

We
    do not accept the fathers argument that the motion judge erred by varying the
    support contrary to the terms of the separation agreement. Here, the mother was
    not attempting to vary the provisions for child support contained in the
    separation agreement. She was attempting to enforce them. Contrary to the
    fathers arguments, a motion to change support was not required in these
    circumstances: see
Bouchard v. Sgovio
,
2021 ONCA 709.

(3)

Did the Motion Judge Err in Quantifying Support?

[24]

Nor
    do we agree with the fathers submission that the motion judge erred in
    resolving the issues about the quantum of support payable on an ongoing basis
    and the amount of the arrears. The preamble to the
Family
    Law Act
notes the need for the orderly and equitable settlement of
    the affairs of the spouses and the equitable sharing by parents of
    responsibility for their children. The motion judge had all the information he
    needed to make a decision about these issues. No one asked for a trial of that
    issue or objected to the motion judge deciding that issue. Both parties
    provided their calculations to him. There was no real justification advanced
    for the time period in issue for the discount the father sought to the amount
    of support set out in the
Guidelines
. Section
    3(1) of the
Child Support Guidelines
, O. Reg.
    391/91 provides that unless otherwise provided under those guidelines, the
    amount of an order for child support for children under the age of majority
is
the table amount plus s. 7
    expenses. Section 10 provides that a court may award a different amount of
    support if the payor would otherwise suffer undue hardship. Undue hardship is
    defined to extend to limited circumstances and is only available when the
    payors standard of living would be less than that of the recipient of the
    support. The appellant could not meet that test because of his income. Zs
    circumstances did not justify a deviation from the table amount of support.

(4)

Did the Motion Judge Lack Jurisdiction to Vary Parenting Time?

[25]

We
    do not accept the fathers submission that the motion judge did not have
    jurisdiction to vary parenting time for E because the parties had signed a
    separation agreement. The motion judge had jurisdiction to make an interim
    variation of custody on a motion brought in these proceedings, where the best
    interests of the child demanded it. No final order had been taken out in these
    proceedings. Section 56(1) of the
Family Law Act
provides that in the determination of a matter respecting parenting time with
    respect to a child, the court may disregard any provision of a domestic
    contract where in the opinion of the court, to do so is in the best interests
    of the child. Here, it was obvious and agreed that E was going to remain living
    with her mother, and the motion judge would not have erred in giving effect to
    that reality by making an order that she was to reside with her mother on an
    interim basis.

(5)

Did the Motion Judge Err in Issuing a Final Order?

[26]

We
    do find, however, that the motion judge erred in issuing a final order. To be
    clear, neither party suggested to the motion judge that his disposition of the
    issue of ongoing child support and arrears should be made on an interim basis. The
    motion judges manner of dealing with the issue of ongoing support and arrears
    was proportionate and appropriate to the issues in dispute. The same comments
    apply to the motion judges enforcement of the provision in the separation
    agreement dealing with health care insurance reimbursement.

[27]

The
    motion judge did, however, indicate during the hearing that the change to Es
    living arrangements would be made on an interim basis. For some unexpressed
    reason, he later indicated that the order would be final. The trial judges
    decision to impose a final order was understandable; E was fragile in some respects,
    and to subject her to an ongoing custody dispute in the circumstances seems
    futile. This child has been a subject of ongoing proceedings since she was ten
    years old. She is now sixteen and has been living with her mother for some two
    years and the father indicated that he did not propose to alter that
    arrangement.

[28]

Having
    indicated that he would make the order on an interim basis, the motion judge
    erred in making it final. Procedural fairness was denied to the parties, who
    had no reason to believe that the finality of the order should be addressed
    during the hearing. We would vary the motion judges order that the child [E]
    shall be primarily a resident with the mother and [t]he father shall exercise
    access to E in accordance with her wishes by adding on an interim basis to
    both of those aspects of the order.

(6)

Should Leave to Appeal Costs be Granted, and the Appeal of Costs be
    Allowed?

[29]

Mr.
    Vale also seeks leave to appeal from the costs order made against him in the
    sum of $22,541.81. The motion judges costs endorsement noted:

The applicant was substantially
    successful on almost all points raised in her motion. She served an offer to
    settle which was not accepted and if it had been, there would have been no need
    for the motion.

With respect to the issue of costs
    the father basically tried to re-argue the motion.

[30]

We
    accept that the award of costs in favour of the mother may have been affected
    by the final nature of the disposition of parenting time for E. We would grant
    leave to appeal costs and vary the costs awarded in favour of the mother by
    reducing it by $2,000.00 to $20,541.81, with post judgment interest to run from
    the date of the award of costs by the motion judge.

CONCLUSION

[31]

Success
    has been divided on this appeal. It is difficult to see how the pursuit of this
    appeal will have any practical consequences for the parties, except to increase
    their legal costs. In these circumstances, we award costs of the appeal to the
    respondent Ms. Vale in the sum of $3,000.00 inclusive of taxes and
    disbursements, an amount proportionate to the issues at stake on the appeal.

G.
    Pardu J.A.

David
    M. Paciocco J.A.

J.A.
    Thorburn J.A.





[1]

Ms. McInnis appeared but made no written or oral submissions
    on behalf of the Office of the Childrens Lawyer.


