Park v. Thompson, (2005) 197 O.A.C. 158 (CA)

• Judge: Catzman, Rosenberg and Goudge, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 07, 2005
• Jurisdiction: Ontario
• Citations: (2005), 197 O.A.C. 158 (CA);2005 CanLII 14132 (NS CA);2005 CanLII 14132 (ON CA);77 OR (3d) 601;252 DLR (4th) 730;13 RFL (6th) 415;[2005] CarswellOnt 1632;[2005] OJ No 1695 (QL);138 ACWS (3d) 1118;197 OAC 158

Park v. Thompson (2005), 197 O.A.C. 158 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. MY.018

Penelope Dawn Park (applicant/respondent) v. Philip Robert Allen Thompson (respondent/appellant)

(C42585)

Indexed As: Park v. Thompson

Ontario Court of Appeal

Catzman, Rosenberg and Goudge, JJ.A.

May 2, 2005.

Summary:

A mother's application for child support was granted. The father appealed from those aspects of the order which required him to pay: (1) child support retroactive to November 1, 2002; (2) certain expenses under s. 7 of the Child Support Guidelines; and (3) the Table amounts for child support and s. 7 expenses for the period after the child turned 18 years of age.

The Ontario Court of Appeal allowed the appeal. The court set aside the parts of the order concerning retroactivity, the s. 7 expenses and ongoing support and directed a new trial of those issues.

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - [See both Family Law - Topic 2353 ].

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - A mother applied for child support - The father was ordered to pay support retroactive to November 1, 2002 - The Ontario Court of Appeal held that the application judge erred in his application of the factors regarding retroactive support orders adopted in Walsh v. Walsh (Ont. C.A.) and the order for retroactive child support could not stand - The court held, inter alia, that the application judge's finding that the delay was not unreasonable, because the father knew that a claim for support would be pursued, was not supported by the evidence - There was no indication from the mother that she intended to pursue child support - While the father could reasonably expect an application at some point, there was no explanation for the delay by the mother in seeking child support - See paragraph 17.

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - A mother applied for child support - The father was ordered to pay child support retroactive to November 1, 2002 - The Ontario Court of Appeal held that the application judge erred in his application of the factors regarding retroactive support orders adopted in Walsh v. Walsh (Ont. C.A.) and the order for retroactive child support could not stand - The court held, inter alia, that the application judge did not consider relevant Walsh factors such as whether the mother had been required to encroach on capital or incur debt - Most importantly, he did not consider the father's present ability to pay given the responsibilities of his new family and whether, in all of the circumstances, an order for retroactive support would cause an unfair burden on the father - While the judge did not have to expressly refer to all of the Walsh factors, he should refer to those factors clearly raised by the circumstances of the case and that were not obviously neutral in their application - See paragraphs 14 to 19.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - [See both Family Law - Topic 2353 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - A father appealed from an order which required him to pay certain expenses under s. 7 of the Child Support Guidelines - The Ontario Court of Appeal set aside the order concerning s. 7 expenses - The judge who made the order did not provide any reasons for his conclusion that the expenses claimed by the mother were reasonable other than to say that the various expenses were consistent with the activities participated in prior to separation - It was not sufficient to find that the expenses were reasonable - The judge was also required to find that they were necessary and that they came within one of the paragraphs in s. 7(1) - See paragraph 22.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - A father appealed from an order which required him to pay certain expenses under s. 7 of the Child Support Guidelines, including the cost of a cell phone - The Ontario Court of Appeal held that there was nothing in the record to support a finding that a cell phone was an "extraordinary" expense - The use of the word "extraordinary" in s. 7 implied that ordinary expenses were intended to be covered by the basic table amounts - Given the incomes of the parents in this case, there was nothing to support the conclusion that a cell phone was an extraordinary expense - The same could be said for many of the other expenses claimed in this case, such as club fees and music lessons - See paragraph 24.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - A father appealed from an order which required him to pay certain expenses under s. 7 of the Child Support Guidelines - The Ontario Court of Appeal set aside the order concerning s. 7 expenses - The judge who made the order did not take into account that the father had not been consulted about any of the expenses before they were incurred; the possible contribution by the child to these expenses; and any available income tax credits, such as for tuition fees - Section 7 required the judge to take those matters into account in determining the amount of the expenses - See paragraph 26.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Children over the age of majority - A mother applied for child support - The father was ordered to pay the full table amounts for child support notwithstanding that the child was 18 years of age and attending university in another city - The father appealed - The Ontario Court of Appeal set aside the order - The court held that before making the order, the application judge should have considered the provisions of s. 3(2) of the Guidelines (child over the age of majority) - The application judge erred in failing to consider whether the table amount was inappropriate within the meaning of s. 3(2)(b) - See paragraphs 27 to 29.

Cases Noticed:

Marinangeli v. Marinangeli (2003), 174 O.A.C. 76; 66 O.R.(3d) 40 (C.A.), consd. [para. 14].

Walsh v. Walsh (2004), 183 O.A.C. 179; 69 O.R.(3d) 577 (C.A.), consd. [para. 15].

L.S. v. E.P. (1999), 126 B.C.A.C. 28; 206 W.A.C. 28; 50 R.F.L.(4th) 302; 1999 BCCA 393, refd to. [para. 14].

D.B.S. v. S.R.G. (2005), 361 A.R. 60; 339 W.A.C. 60; 7 R.F.L.(6th) 373; 2005 ABCA 2, refd to. [para. 16].

L.J.W. v. T.A.R., [2005] A.R. Uned. 002; 9 R.F.L.(6th) 232; 2005 ABCA 3, refd to. [para. 16].

Henry v. Henry (2005), 357 A.R. 388; 334 W.A.C. 388; 7 R.F.L.(6th) 275; 2005 ABCA 5, refd to. [para. 16].

McLaughlin v. McLaughlin (1998), 113 B.C.A.C. 224; 184 W.A.C. 224; 167 D.L.R.(4th) 39 (C.A.), refd to. [para. 24].

Luftspring v. Luftspring, [2004] O.A.C. Uned. 242 (C.A.), refd to. [para. 26, footnote 2].

Merritt v. Merritt (1999), 98 O.T.C. 321 (Sup. Ct. Fam. Div.), refd to. [para. 28].

Statutes Noticed:

Family Law Act Regulations (Ont.), Child Support Guidelines, Reg. 391/97, sect. 3(2) [para. 27]; sect. 7 [para. 21].

Ontario Child Support Guidelines - see Family Law Act Regulations (Ont.), Child Support Guidelines.

Counsel:

Philip M. Epstein, Q.C., for the appellant;

W. Douglas R. Beamish, for the respondent.

This appeal was heard on April 7, 2005, before Catzman, Rosenberg and Goudge, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Rosenberg, J.A., and was released on May 2, 2005.