Cassidy v. McNeil,

• Jurisdiction: Ontario
• Judge: Feldman, Lang and MacFarland, JJ.A.
• Neutral Citation: 2010 ONCA 218
• Citation: 2010 ONCA 218,(2010), 266 O.A.C. 62 (CA),99 OR (3d) 81,[2010] CarswellOnt 1637,[2010] OJ No 1158 (QL),266 OAC 62,[2010] O.J. No 1158 (QL),99 O.R. (3d) 81,(2010), 266 OAC 62 (CA),266 O.A.C. 62
• Date: 08 October 2009
• Court: Court of Appeal (Ontario)

Cassidy v. McNeil (2010), 266 O.A.C. 62 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. AU.078

Daniel Cassidy (applicant/appellant/respondent by way of cross-appeal) v. Carol McNeil (respondent/respondent/appellant by way of cross-appeal)

(C48352; 2010 ONCA 218)

Indexed As: Cassidy v. McNeil

Ontario Court of Appeal

Feldman, Lang and MacFarland, JJ.A.

March 23, 2010.

Summary:

After the parties' separation in 2003, no formal arrangement was entered into respecting custody of their three children, child support or spousal support. The children resided with the husband. The wife paid expenses for the children directly, but paid no periodic child support. The husband paid no spousal support. The husband applied for prospective and retrospective ss. 3 and 7 Guideline support. The wife applied for prospective and retrospective spousal support. The parties agreed that a divorce should issue. At the time of trial, the two oldest children, who had both completed their undergraduate studies and were employed in jobs commensurate with their education, continued to reside with the husband.

The Ontario Superior Court, in a decision reported at [2008] O.T.C. Uned. 69, granted a divorce. The court ordered the wife to pay Guideline child support for the youngest child (aged 15). The parties were to share future special or extraordinary expenses under s. 7 of the Guidelines in proportion to their respective incomes. The court dismissed the husband's claim for retrospective periodic child support and s. 7 child support, including his claim for support for the two oldest children. The court also dismissed the wife's claim for retrospective spousal support, but awarded her prospective spousal support of $1,200 per month for five years. The court ordered the husband to pay the wife's costs fixed at $24,590.35. The husband appealed, seeking to substitute an order awarding him child support retrospective to the separation and dismissing the wife's claim for spousal support. He also sought an order overturning the costs award and awarding him costs of the trial. The wife cross-appealed, seeking to increase the amount of spousal support and to increase its duration to 12 years.

The Ontario Court of Appeal varied the order to provide for monthly spousal support of $950 without a set termination date. The court otherwise dismissed the appeals.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - A trial judge denied a husband's claim for retrospective periodic child support and s. 7 child support - The husband appealed, asserting that the judge wrongly categorized his claim as "retroactive" rather than "retrospective" - The husband asserted that as a result the judge misapprehended the nature of his claim and wrongly placed the burden on him to show entitlement, instead of recognizing the wife's freestanding obligation to pay child support from the time of his demand at separation - The Ontario Court of Appeal rejected the assertions - The trial judge's "retroactive" language simply reflected the language used by the husband's trial counsel - The same terminology was commonly used by family law counsel and at all levels of courts - While references to "retroactive" support might lack precision, the experienced trial judge's use of that term could not be taken to signal that he misapprehended the nature of the husband's claim or the applicable legal principles - Moreover, the judge's reasons showed no misapprehension of the principle that a non-custodial parent had an obligation to pay child support irrespective of a specific demand for a particular payment by the custodial parent - The case was not about the wife's obligation, which was apparent, but about whether she had met that obligation - It was open to the judge to interpret the parties' pretrial conduct as evidence of an informal agreement to maintain the status quo (i.e., neither party demanding support) - Moreover, it did not appear that the children had suffered as a result of the parties' arrangement or that their needs were not met from their own resources and those of the parties - Finally, a retrospective award of 4.5 years of child support might have entailed hardship for the wife in light of the parties' respective circumstances and the wife's ongoing obligation to pay prospective support for the youngest child - See paragraphs 43 to 50.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - A husband appealed an award of child and spousal support, asserting that the trial judge erred in notionally setting off retrospective spousal support from the wife's retrospective s. 3 child support obligation - The Ontario Court of Appeal rejected the assertion where the husband's position was fatally flawed in two respects - First, he failed to demonstrate any palpable and overriding error in the trial judge's implicit conclusion that the wife's contributions, at least to some extent, provided support for the children additional to her proportionate share of s. 7 expenses - The judge also realized that any overpayment by the wife would not have satisfied the full amount of retrospective periodic child support - Because the husband had a disproportionate share of the children's everyday expenses, the judge observed that the husband was not in a position to pay retrospective spousal support, nor was the wife in need of support - The judge considered the wife's obligation for retrospective child support to be off set, at least in part, by the dismissal of her claim for retrospective spousal support - Second, the judge specifically observed that the parties had no "formal" arrangement for child and spousal support - That observation recognized the parties' apparent informal agreement not to pursue either interim child or spousal support - Viewed that way, the refusal to award retrospective child support arose, in part, from the parties' informal understanding or mutual acquiescence to the pre-trial status quo - Acceptance of the parties' understanding was open to the judge, particularly where their mutual strategy did not result from a power imbalance or impose hardship on the children - Even absent the benefit of calculations for child and spousal support, and their tax consequences, the trial judgment, at least on the issue of the retrospective child and spousal support, appeared to provide a reasonable result - See paragraphs 56 to 60.

Family Law - Topic 4006

Divorce - Corollary relief - Maintenance awards - Effect of agreements - [See second Family Law - Topic 4001.1 ].

Family Law - Topic 4006.1

Divorce - Corollary relief - Maintenance awards - To children - Effect of agreements - [See second Family Law - Topic 4001.1 ].

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance awards - Periodic payments - A trial judge ordered a husband to pay monthly spousal support of $1,200 for five years - The husband appealed - The wife cross-appealed - The Ontario Court of Appeal noted, inter alia, the deference owed to the trial judge's decision - However, the trial judge erred by not directly addressing the important threshold issue and pre-condition of entitlement - The only explanation the judge gave for the award was that the wife had established a need at least until the youngest child (Louise) either completed her education (in an estimated five years) or went out on her own - Need did not encompass the other objectives and factors that the Divorce Act mandated the court to consider - The court had to consider whether the wife had established necessity - The court noted that during the marriage, the wife had subordinated her teaching career to that of the husband's career - Additionally, she took three years out of the workforce to care for their first two children and a further year to set up the family's home - The evidence also suggested that the parties' circumstances might have required her to forego graduate studies - She also suffered health issues, including pregnancies that resulted in miscarriages - The wife also pointed to the consequences of a joint decision that she accept her current private school position, a decision made in the best interests of the children, but with long-term consequences to her - Although there was no shortfall between the wife's income and her expenses, her post-separation lifestyle was lower than that of the husband - The argument that she had not enjoyed an elevated lifestyle during the marriage ignored the fact that she still would have benefited from the parties' joint incomes - Additionally, there would have been the expectation that, once the children were grown, their joint incomes would benefit them both - Over the 23 year marriage, the parties' expectations and interdependency would have evolved into an economic merger of their interests - That merger, together with the wife's somewhat compromised career path, met the threshold of entitlement - Given that merger, uncertainties surrounding the wife's employment, and the husband's security of employment (a tenured university professor), there was no basis to time limit support - The applicable range under the Spousal Support Advisory Guidelines provided for a monthly payment of $838 to $1,117 - An award at the high end of the range would have been appropriate but for the husband's obligations for the youngest child who resided with him and the wife's relatively high level of income - An appropriate award was $950 per month - See paragraphs 62 to 75.

Family Law - Topic 4014.2

Divorce - Corollary relief - Maintenance awards - Separation of spousal and children's maintenance - [See second Family law - Topic 4001.1 ].

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum awards - [See second Family Law - Topic 4001.1 ].

Family Law - Topic 4021.2

Divorce - Corollary relief - Maintenance awards - Considerations - Leaving labour market for family responsibilities - [See Family Law - Topic 4010 ].

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines - [See Family Law - Topic 4010 ].

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines - The Ontario Court of Appeal stated that "a 'full' argument on the application of the [Spousal Support Advisory Guidelines] would generally include provision of calculator worksheets for various scenarios. Those scenarios should be provided to the trial judge and marked as exhibits or aids to the court so that they are available on appeal. When counsel do not provide the trial court with worksheets, or fail to have those calculations before the appellate court, the court cannot be expected to do the calculations on their behalf." - See paragraph 61.

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - To wife - Considerations - [See Family Law - Topic 4010 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - [See Family Law - Topic 4010 ].

Family Law - Topic 4027

Divorce - Corollary relief - Maintenance awards - Effect of income or potential income of claimant - [See Family Law - Topic 4010 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - A husband appealed an award of child support, asserting that the trial judge improperly placed the onus on him to prove that the wife had failed to meet her ss. 3 and 7 Guideline obligations - The husband based the assertion on the judge's statement that the husband had failed to provide an adequate "evidential basis by way of his calculations" - The Ontario Court of Appeal rejected the assertion - At issue at trial was whether the wife's contributions had met her ss. 3 and 7 obligations - The husband provided a list of his s. 7 contributions and asserted that they offset the wife's contributions - Based on that evidence, the judge concluded that the wife's contributions were more than sufficient to meet her obligations - The reference to an "evidential basis" meant only that the husband's calculations had not persuaded him to a contrary result - Particularly, the husband had not explained the specifics of the children's expenses or how they contributed to those expenses from their significant earnings and revenue - Since the husband, and not the wife, was privy to that information, it fell to the husband to establish the baseline of the relevant expenses - The husband's list of his contributions, without more, was insufficient to establish the claim - It was particularly important for him to have explained the children's expenses and contributions in light of the wife's stated position that the two oldest children were virtually self-supporting - See paragraphs 51 to 55.

Family Law - Topic 4045.17

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Evidence and proof - [See Family Law - Topi 4045.4 ].

Family Law - Topic 4134

Divorce - Practice - General - Pleadings - Maintenance - After the parties' separation in 2003, no formal arrangement was entered into respecting custody of their three children, child support or spousal support - The children resided with the husband - The wife paid expenses for the children directly, but paid no periodic child support - The husband applied for retrospective child support and payment of extraordinary expenses - The trial judge ordered the wife to pay Guideline child support for the youngest child (aged 15) - The parties were to share future s. 7 expenses in proportion to their respective incomes - The court dismissed the husband's claim for retrospective periodic child support and retroactive s. 7 support, including his claim for support for the two oldest children - The husband appealed, asserting that the trial judge erred by setting off the wife's contribution to the s. 7 expenses for the older two children when set-off was not pleaded - The husband asserted that the wife only claimed a proportionate share of the youngest child's expense - The Ontario Court of Appeal rejected the assertion - In her Answer, the wife specifically addressed "support for a child(ren) - other than table amount" and set out in detail her contributions to the children's expenses - From the wife's October 2003 letter, and continuing throughout the pre-trial period, it was clear that she was of the view that her contributions offset any claim by the husband for s. 3 and s. 7 child support - It would also have been obvious to the husband that the wife expected that her contributions to the children's expenses would be taken into account - Finally, the husband did not advance any argument of prejudice at trial - That supported the conclusion that he suffered no prejudice - In any event, there was no evidence that he suffered either surprise or prejudice from any technical deficiency in the wife's Answer - See paragraphs 40 to 42.

Family Law - Topic 4176

Divorce - Practice - Costs - Party and party costs - A husband applied for prospective and retrospective ss. 3 and 7 Guideline support for the parties' three children - The wife applied for prospective and retrospective spousal support - The trial judge ordered the wife to pay Guideline child support for the youngest child - The parties were to share future s. 7 expenses in proportion to their respective incomes - The judge dismissed the husband's claim for retrospective support, including his claim for support for the two oldest children - The judge also dismissed the wife's claim for retrospective spousal support, but awarded her prospective spousal support of $1,200 per month for five years - The judge ordered the husband to pay the wife's costs fixed at $24,590.35 - The husband appealed the costs award, asserting that the judge erred in finding that the wife was the successful party at trial - The Ontario Court of Appeal rejected the assertion - The amount of s. 3 support was presumptively in the Guideline amount - There was no dispute about the wife's income - One of the primary issues was the amount of s. 7 expenses and whether the wife had met her support obligations - The trial judge concluded that she had - In the result, the judge denied the husband retrospective child support and the wife retrospective spousal support, but awarded the wife prospective spousal support - In those circumstances, it was open to the judge to conclude that the wife was the more successful party and to award her costs - See paragraphs 79 and 80.

Family Law - Topic 4176

Divorce - Practice - Costs - Party and party costs - A husband applied for prospective and retrospective ss. 3 and 7 Guideline support for the parties' three children - The wife applied for prospective and retrospective spousal support - The trial judge ordered the wife to pay Guideline child support for the youngest child - The parties were to share future s. 7 expenses in proportion to their respective incomes - The judge dismissed the husband's claim for retrospective support, including his claim for support for the two oldest children - The judge also dismissed the wife's claim for retrospective spousal support, but awarded her prospective spousal support of $1,200 per month for five years - The judge ordered the husband to pay the wife's costs fixed at $24,590.35 - The husband appealed the costs award, asserting that the burden of litigating child support should not fall on the custodial parent - The Ontario Court of Appeal dismissed the appeal - The court noted that the court had previously observed that a relevant consideration was the financial circumstances of an unsuccessful custodial parent and particularly the impact of a costs awards on the interests of the child - However, a parent was not absolved from a costs disposition simply because he or she was the custodial parent, particularly where the child's best interest would not be negatively affected - Here, the impact of a costs disposition on the children was, at most, minimal - See paragraph 81.

Family Law - Topic 4176

Divorce - Practice - Costs - Party and party costs - A husband applied for prospective and retrospective ss. 3 and 7 Guideline support for the parties' three children - The wife applied for prospective and retrospective spousal support - The trial judge ordered the wife to pay Guideline child support for the youngest child - The parties were to share future s. 7 expenses in proportion to their respective incomes - The judge dismissed the husband's claim for retrospective support, including his claim for support for the two oldest children - The judge also dismissed the wife's claim for retrospective spousal support, but awarded her prospective spousal support of $1,200 per month for five years - The judge ordered the husband to pay the wife's costs fixed at $24,590.35 - The husband appealed the costs award, asserting that it was excessive as the wife's bill of costs had improperly included attendances at conferences and other court appearances where no costs were allowed - The assertion was based on rule 24(1) of the Family Law Rules which required a judge who dealt with a step in a case to decide the question of entitlement to costs - The Ontario Court of Appeal rejected the assertion - The trial judge did not explain either explicitly or inferentially why the wife was entitled to costs of conferences and appearances where costs were not awarded or reserved - However, the husband did not provide an amount attributable to such appearances, nor could one be discerned from the record before the court - Additionally, the wife's bill of costs was already substantially reduced to reflect the bifurcated nature of the custody and support proceedings - See paragraph 84.

Family Law - Topic 4176

Divorce - Practice - Costs - Party and party costs - A husband applied for prospective and retrospective ss. 3 and 7 Guideline support for the parties' three children - The wife applied for prospective and retrospective spousal support - The trial judge ordered the wife to pay Guideline child support for the youngest child - The parties were to share future s. 7 expenses in proportion to their respective incomes - The judge dismissed the husband's claim for retrospective support, including his claim for support for the two oldest children - The judge also dismissed the wife's claim for retrospective spousal support, but awarded her prospective spousal support of $1,200 per month for five years - The judge ordered the husband to pay the wife's costs fixed at $24,590.35 - The husband appealed the costs award, asserting that the trial judge erred in awarding the wife costs that were essentially on a substantial indemnity basis - The Ontario Court of Appeal rejected the assertion - The award was not equivalent to substantial indemnity costs in light of the bifurcated bill submitted at trial - The trial judge alone was in a position to observe the parties and weigh the factors set out in rule 24(11) of the Family Law Rules - Those factors included the reasonableness of the parties' behaviour as well as attempts to settle - On the record, the husband appeared to have held the upper hand throughout - He chose not to provide the wife with a list of s. 7 expenses until a few days before the trial and tacitly accepted their pre-trial informal arrangement not to demand support from each other - He did not respond to the wife's offer to settle despite that the case cried out for a reasonable settlement - In the circumstances, it was open to the judge to arrive at his disposition of costs - There was no basis to interfere with his exercise of discretion - See paragraph 85.

Family Law - Topic 4188

Divorce - Practice - Costs - Appeals from costs order - [See fourth Family Law - Topic 4176 ].

Family Law - Topic 4189

Divorce - Practice - Costs - Settlement offers - [See fourth Family Law - Topic 4176 ].

Practice - Topic 7030

Costs - Party and party costs - Entitlement to - Where success or fault divided - [See first Family Law - Topic 4176 ].

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - [See fourth Family Law - Topic 4176 ].

Cases Noticed:

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 38].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 39].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 44].

Fisher v. Fisher (2008), 232 O.A.C. 213; 88 O.R.(3d) 241 (C.A.), refd to. [para. 61].

Calvert v. Stewart, [2009] O.T.C. Uned. 295 (Sup. Ct. Fam. Ct.), dist. [para. 66].

C.A.M. v. D.M. (2003), 176 O.A.C. 201; 67 O.R.(3d) 181 (C.A.), refd to. [para. 81].

Islam v. Rahman (2007), 228 O.A.C. 371 (C.A.), refd to. [para. 82].

Boucher et al. v. Public Accountants Council (Ont.) et al. (2004), 188 O.A.C. 201; 71 O.R.(3d) 291 (C.A.), refd to. [para. 83].

Authors and Works Noticed:

Canada, Department of Justice, Spousal Support Advisory Guidelines - see Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines.

Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines (2008), generally [para. 36].

Counsel:

Patrick D. Schmidt and Joanna Harris, for the appellant/respondent by way of cross-appeal;

Gerald P. Sadvari, for the respondent/appellant by way of cross-appeal.

This appeal and cross-appeal were heard on October 8, 2009, by Feldman, Lang and MacFarland, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Lang, J.A., on March 23, 2010.