Horner v. Horner, (2004) 191 O.A.C. 28 (CA)

• Judge: Weiler, Rosenberg and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 21, 2004
• Jurisdiction: Ontario
• Citations: (2004), 191 O.A.C. 28 (CA);2004 CanLII 34381 (NS CA);2004 CanLII 34381 (ON CA);72 OR (3d) 561;245 DLR (4th) 410;6 RFL (6th) 140;[2004] CarswellOnt 4246;[2004] OJ No 4268 (QL);191 OAC 28

Horner v. Horner (2004), 191 O.A.C. 28 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. OC.084

Irene Ballantyne Horner (applicant/appellant) v. Ronald Bruce Horner (respondent)

(C39173)

Indexed As: Horner v. Horner

Ontario Court of Appeal

Weiler, Rosenberg and Blair, JJ.A.

October 21, 2004.

Summary:

The parties began cohabiting in 1983, married in 1984 and separated in 1993. A 1995 separation agreement provided that the husband would pay spousal support of $400 per month until April 2005 and continuing thereafter if either child of the marriage was attending an educational institute full-time. The agreement also provided that the husband would pay total child support of $1,000 per month for the parties' daughter and son. A 1997 court order increased child support to $1,156 per month. In 1999, the son went to live with the husband and the parties signed an amending agreement which provided that the husband's child support obligation would reduce by 50% to $578 per month. In 2001, the wife applied for increased spousal and child support retroactive to January 1, 2000. She also sought to set aside the time-limited spousal support provision in the separation agreement.

The Ontario Superior Court ordered the husband to pay child support of $1,374 per month and spousal support of $1,750 per month, both retroactive to May 1, 2001, the date when the wife requested increased support. The court declined to set aside the time-limited spousal support provision of the separation agreement. The wife appealed, arguing that the court erred with respect to the amount of child and spousal support awarded and the extent of the retroactivity of the awards. She also argued that the court erred in not setting aside the time-limited aspect of spousal support.

The Ontario Court of Appeal allowed the appeal in part. The court held that the amount of spousal support awarded was clearly wrong and it fixed spousal support at $2,445 per month. However, the court declined to interfere with the trial judge's findings with respect to the time-limited aspect of spousal support or the extent of the retroactivity of the spousal support award. The court ordered that the award of child support be made retroactive to January 1, 2000.

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - A 1995 separation agreement provided that the husband would pay spousal support of $400 per month - In 2001, the wife applied for increased support retroactive to January 1, 2000 - The trial judge ordered the husband to pay support of $1,750 per month retroactive to May 1, 2001, the date of the wife's request for increased support - The Ontario Court of Appeal held that the trial judge's award was clearly wrong and it fixed support at $2,445 per month - However, the court held that there was no error in principle in the trial judge's decision not to order retroactive support beyond May 1, 2001 - The wife was not justified in relying on the husband for disclosure - Nor did the wife submit that, had the husband made proper financial disclosure, she would have brought her application earlier - See paragraphs 55 to 60.

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - A 1995 separation agreement provided that the father would pay support of $1,000 per month for the parties' daughter and son - A 1997 court order increased child support to $1,156 per month - In 1999, the son went to live with the father and the parties signed an amending agreement which reduced the father's child support obligation by 50% to $578 per month - In 2001, the mother applied for increased child support retroactive to January 1, 2000 - The trial judge ordered the father to pay child support of $1,374 per month retroactive to May 1, 2001, the date of the mother's request for increased support - The Ontario Court of Appeal held that the trial judge erred in not making the award retroactive to January 1, 2000 - The father knew that the support that he provided for his daughter was not commensurate with the support he provided to his son who lived with him and he acted in his own self-interest in not paying appropriate support for his daughter although he had the ability to pay - The father had not made full financial disclosure - An award of support retroactive for a further 16 months would not cause an unreasonable or unfair burden on the father or fail to benefit the daughter - The mother's delay in seeking increased support was explained by the father's financial nondisclosure - Further, a parent's inaction in requesting disclosure and seeking increased child support could not trump the making of an order predating the application that would be in the child's interests - See paragraphs 73 to 93.

Family Law - Topic 3248

Separation agreements, domestic contracts and marriage contracts - Terms - Release or waiver - A 1995 separation agreement provided that the father would pay total child support of $1,000 per month for the parties' daughter and son - A 1997 court order increased child support to $1,156 per month - In 1999, the son went to live with the father and the parties signed an amending agreement which reduced the father's child support obligation by 50% to $578 per month - In 2001, the mother applied for increased child support - The trial judge ordered that the father pay support of $1,610 for the daughter and that the mother pay $236 per month for the son, to be set off against the father's payment - The result was that the father was required to pay $1,374 per month - The mother appealed - She argued that the 1999 amending agreement stated that the father waived any right to claim support for the son - The Ontario Court of Appeal dismissed the ground of appeal - The wording of the amending agreement suggested that the waiver of financial support for the son only applied provided the mother accepted the support the father was paying for the daughter as stipulated in the agreement - Once the mother did not accept the amount for the daughter and sought support in accordance with the Guidelines, the court saw no reason why the father's waiver would apply - See paragraphs 69 to 72.

Family Law - Topic 3375

Separation agreements, domestic contracts and marriage contracts - Variation - Of maintenance - A 1995 separation agreement provided that the husband would pay spousal support of $400 per month until April 2005 and continuing thereafter if either child of the marriage was attending an educational institute full-time - In 2001, the wife applied for increased spousal support - The trial judge ordered the husband to pay spousal support of $1,750 per month, but declined to set aside the time-limited portion of the agreement - The wife appealed - The Ontario Court of Appeal held that the trial judge's award of support was clearly wrong and it fixed support at $2,445 per month - However, the court held that the trial judge did not err in not setting aside the time-limited aspect of spousal support - The trial judge considered that the wife had received a greater share of the parties' net worth under the separation agreement because she agreed to time-limited spousal support - He concluded that time-limited support was part of the fundamental bargain between the parties that should not be varied absent unusual circumstances - The trial judge also considered that the parties knew that the husband's income was likely to increase when they signed the agreement, but the wife nevertheless agreed to time-limited support - The court was not prepared to interfere with the trial judge's conclusion - However, the court did not read the trial judge's reasons as indicating that the time-limited provision in the agreement could never be varied - The wife was therefore not precluded from bringing a further application to extend the duration of support based on a different change of circumstances - See paragraphs 61 to 68.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - [See both Family Law - Topic 2211 ].

Family Law - Topic 4021.1

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Financial consequences of child care and household responsibilities - The parties began cohabiting in 1983, married in 1984 and separated in 1993 - The wife stayed home to look after the two children of the marriage - The husband worked and attended school part-time - His improvements to his education led to advancement in his career - A 1995 separation agreement provided that the husband was to pay spousal support of $400 per month premised on an annual income of $75,000 - In 2001, the wife applied for increased spousal support - The trial judge ordered the husband to pay spousal support of $1,750 per month - The wife appealed - The Ontario Court of Appeal held that the trial judge's award of support was clearly wrong where: (1) the amount awarded was predicated on the husband's income being $149,000 U.S. rather than his acknowledged income of $184,119 U.S.; (2) the wife's proposed budget was reasonable yet the trial judge rejected the amount of support she requested without commenting on it; and (3) the economic consequences arising from the wife undertaking the bulk of the work in the home did not appear to be reflected in the amount awarded by the trial judge nor did he indicate how he considered the wife's need and the husband's standard of living in assessing economic loss - The amount awarded by the trial judge also fell considerably below the median of support awards in comparable cases - The court fixed spousal support at $2,445 per month - See paragraphs 44 to 54.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance and awards - Awards - To spouse - Extent of obligation - [See Family Law - Topic 3375 ].

Family Law - Topic 4023

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of delay or laches - [See second Family Law - Topic 2211 ].

Cases Noticed:

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 4].

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. 42].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 51].

Ross v. Ross (1995), 168 N.B.R.(2d) 147; 430 A.P.R. 147; 16 R.F.L.(4th) 1 (C.A.), refd to. [para. 52].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211; 44 R.F.L.(4th) 1, refd to. [para. 52].

Bemrose v. Fetter, [2003] O.T.C. 408; 2003 CarswellOnt 1725 (Sup. Ct.), refd to. [para. 53].

McInnes v. McInnes, [2002] O.J. No. 3154 (Sup. Ct.), refd to. [para. 53].

Aguanno v. Aguanno, [2002] O.T.C. 300; 30 R.F.L.(5th) 14 (Sup. Ct.), refd to. [para. 53].

Brownstein v. Hanson, [2003] O.T.C. 720; 45 R.F.L.(5th) 67 (Sup. Ct.), refd to. [para. 53].

French v. French, [2002] O.T.C. Uned. 29 (Sup. Ct.), refd to. [para. 53].

Hart v. Hart, [2003] O.T.C. 647; 41 R.F.L.(5th) 80 (Sup. Ct.), refd to. [para. 53].

Masztics v. Masztics, [2003] O.T.C. Uned. 328; 2003 CarswellOnt 1452 (Sup. Ct.), refd to. [para. 53].

Royston v. Royston, [2003] O.T.C. Uned. 179 (Sup. Ct.), refd to. [para. 53].

Savidis v. Savidis, 2003 CarswellOnt 4042 (Sup. Ct.), refd to. [para. 53].

S.E.C. v. G.P., [2003] O.T.C. Uned. 535; 41 R.F.L.(5th) 250 (Sup. Ct.), refd to. [para. 53].

Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201; 224 D.L.R.(4th) 193; 2003 SCC 24, refd to. [para. 56].

Marinangeli v. Marinangeli (2003), 174 O.A.C. 76; 66 O.R.(3d) 40 (C.A.), dist. [para. 59].

Hartshorne v. Hartshorne, [2004] 1 S.C.R. 550; 318 N.R. 1; 194 B.C.A.C. 161; 317 W.A.C. 161; 2004 SCC 22, refd to. [para. 64].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 65].

Walsh v. Walsh (2004), 183 O.A.C. 179; 46 R.F.L.(5th) 455; 69 O.R.(3d) 577 (C.A.), consd. [para. 75].

Underwood v. Underwood (1994), 3 R.F.L.(4th) 457; 113 D.L.R.(4th) 571 (Ont. Gen. Div.), refd to. [para. 77].

Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1; 7 R.F.L.(3d) 304; 38 D.L.R.(4th) 699; 17 C.P.C.(2d) 104, refd to. [para. 78].

Malcovitch v. Malcovitch (1978), 21 O.R.(2d) 449 (H.C.), refd to. [para. 78].

Hansford v. Hansford, [1973] 1 O.R. 116 (H.C.), refd to. [para. 78].

Dal Santo v. Dal Santo (1975), 21 R.F.L. 117 (B.C.S.C.), refd to. [para. 78].

Mercer v. Mercer (1978), 5 R.F.L.(2d) 224 (Ont. H.C.), refd to. [para. 78].

Collins v. Collins (1978), 10 A.R. 214; 5 Alta. L.R.(2d) 315; 2 R.F.L.(2d) 385 (T.D.), refd to. [para. 78].

Krueger v. Taubner (1974), 17 R.F.L. 86 (Man. Q.B.), refd to. [para. 78].

MacMinn v. MacMinn (1995), 174 A.R. 261; 102 W.A.C. 261; 17 R.F.L.(4th) 88 (C.A.), refd to. [para. 79].

L.S. v. E.P. (1999), 126 B.C.A.C. 28; 206 W.A.C. 28; 50 R.F.L.(4th) 302 (C.A.), refd to. [para. 79].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 80].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 82].

Louie v. Lastman et al. (2002), 164 O.A.C. 161; 61 O.R.(3d) 449 (C.A.), refd to. [para. 82].

Rizzo and Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 82].

Chartier v. Chartier, [1999] 1 S.C.R. 242; 235 N.R. 1; 134 Man.R.(2d) 19; 193 W.A.C. 19, refd to. [para. 82].

Tedham v. Tedham (2003), 188 B.C.A.C. 297; 308 W.A.C. 297; 44 R.F.L.(5th) 204; 2003 BCCA 600, refd to. [para. 85].

Brett v. Brett (1999), 19 O.A.C. 94; 44 O.R.(3d) 61 (C.A.), refd to. [para. 89].

Whitton v. Shippelt (2001), 293 A.R. 317; 257 W.A.C. 317; 23 R.F.L.(5th) 437; 2001 ABCA 307, refd to. [para. 91].

B.N.D. et al. v. M.K.M. (2002), 166 B.C.A.C. 220; 271 W.A.C. 220; 2002 BCCA 216, refd to. [para. 91].

Authors and Works Noticed:

Payne, Julien D., Child Support in Canada (4th Ed. 2003), Part 11-11 [para. 78, footnote 3].

Counsel:

George F. McFadyen, for the appellant;

Denis E. Burns, for the respondent.

This appeal was heard on May 21, 2004, before Weiler, Rosenberg and Blair, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Weiler, J.A., and was released on October 21, 2004.