



COURT OF APPEAL FOR ONTARIO

CITATION: J.J. v. C.C., 2017 ONCA 357

DATE: 20170504

DOCKET: C62292

Juriansz, Pepall and Miller JJ.A.

BETWEEN

J.J.

Applicant (Respondent)

and

C.C.

Respondent (Appellant)

Hilary Goodman and Timothy P. Gronfors, for the
    appellant

Peter Harrison, for the respondent

Heard: April 27, 2017

On appeal from the order of Justice Clayton Conlan of the
    Superior Court of Justice, dated May 25, 2016, with reasons reported at 2016
    ONSC 3444.

ENDORSEMENT

[1]

The appellant father and respondent mother, who had never married, had a
    child. They consented to a detailed 17-page final order dated September 19,
    2012 that provided for joint custody, set out parenting principles, and
    provided for a parenting coordinator. An earlier final order dated August 20,
    2009 ordered the father to pay child support in the amount of $220 a month.
    Both orders were issued by the Superior Court of Justice, Family Court in
    Barrie.

[2]

The mother brought a motion to change the 2009 order to increase the
    child support payments. The father brought a motion to change the 2012 order to
    alter the childs primary residence from the mothers home in Owen Sound to his
    apartment in Toronto, and to give him final decision-making authority on all
    matters concerning the child. The motions to change were brought in Owen Sound,
    as the mother with whom the child lived had moved to Grey County. After a
    seven-day trial, the trial judge granted the mothers motion and dismissed the
    fathers. The father has appealed to this court.

[3]

This court has jurisdiction over the appeal, as under rule 15 (4) of the
Family Law Rules
a motion to change is considered a new case. Conlan
    J.s order, despite the way it is styled, is a final order of the Superior
    Court of Justice. Owen Sound is not a Family Court location.

[4]

The father submitted that the trial judge erred by conducting a judicial
    interview with the 10-year-old child. We do not agree. The father amended his
    motion on the third day of trial to change the childs residence. The mother
    sought an adjournment. The trial judge refused the adjournment, considering any
    additional delay to be against the best interests of the child, and proposed
    interviewing the child himself. The father consented. The trial judge ordered
    the transcript of the judicial interview sealed. The father requested it be
    unsealed but we found it unnecessary to do so. Given the fathers late
    amendment, that determining the childs views in some other fashion would have
    occasioned delay not in her best interests, and the fathers consent, we reject
    the fathers contention the trial judge erred in interviewing the child
    himself.

[5]

The father submitted that the trial judge erred by finding there had
    been no material change in circumstances that justified a variation in custody
    or residency. The father argued that the end of Parenting Coordination and the
    friction between the parents constituted the change in circumstances. In
    finding no material change in circumstances, the trial judge considered and
    applied the correct test as described in
Gordon v. Goertz
, [1996] 2
    S.C.R. 27.

[6]

As the trial judge noted, the 2012 order contemplated the end of
    Parenting Coordination. It provided that the parents should return to the
    Parenting Coordinator for mediation/arbitration after parenting coordination
    had expired. We agree with the trial judge that the end of Parenting
    Coordination was not a material change and this argument fails.

[7]

The father submitted that this courts decisions in
Litman v.
    Sherman
, 2008 ONCA 485, and
Goldman v. Kudelya
, 2017 ONCA 300, do
    not absolutely foreclose a change of circumstances arising out of continued
    conflict between the parents. He submitted that where the level of conflict has
    increased and has changed the nature of how it impacts the child, continued
    conflict should be recognized as a change in circumstances. We note that
    Benotto J.A. in the
Goldman
case left open the possibility that a
    change of circumstances could arise in a case of continuing conflict where the
    parenting plan had outright failed.

[8]

In this case, it could not be said the parenting plan had failed as the
    father had not resorted to the avenues for resolving conflict that the 2012
    order provided. We do not accept the fathers submission that the trial judge
    erred by finding there had not been a change of circumstances in the custody
    and residency of the child.

[9]

In relation to child support, the father had conceded at trial there had
    been a change in circumstances because his income had increased. He submits,
    however, that the trial judge erred in ordering the increased child support
    retroactive to January 2012 rather than to June 3, 2014, the date of the motion
    to change. He points out that in this case he has diligently complied with the
    2009 support order, there is no evidence he did not disclose the increases in
    his income, and the mother made no earlier request for an increase in the
    support payments.

[10]

In
S. (D.B.). v. G. (S.R.)
,
2006 SCC 37, at para. 134, the court stated that generally a court should
    make the award retroactive to the date when effective notice was given to the
    payor parent. But where the payor parent has engaged in blameworthy conduct,
    the date when circumstances changed materially will be the presumptive start
    date of the award. The court described the date of effective notice as the
    default option. Once effective notice has been given, the peer parent can no
    longer assume that the status quo is fair, and his/her interest in certainty becomes
    less compelling, at para. 121. The court added that awarding child support
    from the date of effective notice maintains a fair balance between certainty
    and flexibility, at para. 122. At paragraph 125, the court summarized its
    conclusions: payor parents will have their interest in certainty protected
    only up to the point when that interest becomes unreasonable. In the majority
    of circumstances, that interest will be reasonable up to the point when the
    recipient parent broaches the subject, up to three years in the past.

[11]

The court, at para. 99, did leave open the possibility that retroactive
    support could be ordered where a payor parent engages in no blameworthy
    conduct." However, the court described that outcome as conceivable.

[12]

In paragraph 133, the court summed up its discussion of retroactive
    child support awards by saying:

In determining whether to make a retroactive award, a court
    will need to look at all the relevant circumstances of the case in front of it.
    The payor parents interest in certainty must be balanced with the need for
    fairness and for flexibility. In doing so, a court should consider whether the
    recipient parent has supplied a reasonable excuse for his/her delay, the
    conduct of the payor parent, the circumstances of the child, and the hardship
    the retroactive award might entail.

[13]

In this case, the trial judge did not find any blameworthy conduct on
    the part of the father and did not find effective notice was given before the
    date of the mothers motion to change. Rather, the judge made the award
    retroactive based on the unrepresented fathers apparent acquiescence with the
    total child support arrears calculation that the mothers counsel put to him on
    the stand. However, the transcript indicates the questions that were put to him
    did not indicate the start date on which the calculations were premised. We
    accept the father did not acquiesce in the payments being made retroactive
    beyond the date of the mothers motion to change.

[14]

This was a case in which the general principle applied: the award should
    have been made retroactive to the date when effective notice was given to the
    payor parent.

[15]

In making the final order, the trial judge set off against the
    retroactive child support arrears owed by the father an unpaid $27,000 costs
    award made against the mother by the court in Barrie in January 2009.
    Subsequently, the mother had filed for bankruptcy in 2010, and the Bankruptcy
    Court had ordered her to pay 50% of that outstanding costs order. The trial
    judge had no basis for setting off the entire costs award, rather than 50% of
    the costs award, against the total retroactive child support arrears.

[16]

We would allow the appeal and vary the order below so that increased
    child support payments are retroactive to June 3, 2014, the date of the motion
    to change, and set off only 50% of the outstanding costs award against those
    arrears. In other respects, the appeal is dismissed.

R.G. Juriansz
    J.A.

S.E. Pepall
    J.A.

B.W. Miller
    J.A.


