Patton-Casse v. Casse

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: O'Connor, A.C.J.O., Armstrong and Juriansz, JJ.A.
• Citation: 2012 ONCA 709,(2012), 298 O.A.C. 111 (CA)
• Date: 09 October 2012

Patton-Casse v. Casse (2012), 298 O.A.C. 111 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. OC.033

Kathleen Patton-Casse (applicant/appellant) v. Mark Casse (respondent/respondent in appeal)

(C55108-C55110; 2012 ONCA 709)

Indexed As: Patton-Casse v. Casse

Ontario Court of Appeal

O'Connor, A.C.J.O., Armstrong and Juriansz, JJ.A.

October 25, 2012.

Summary:

The parties divorced after a nine year marriage. They had three children. They resolved financial and custody/access issues in a 2001 consent order. The former wife sought to vary the 2001 order. The matter proceeded by way of arbitration. An arbitrator awarded the wife retroactive and prospective child support in amounts greater than those provided in the 2001 order. He also awarded retroactive spousal support from the date of the commencement of the motion and prospective spousal support until December 31, 2014 and subject to further extension if appropriate. The husband appealed.

The Ontario Superior Court, in a decision and supplementary decision reported at [2011] O.T.C. Uned. 4424 and [2011] O.T.C. Uned. 6182, allowed the appeal in part. The wife was awarded costs (see [2011] O.T.C. Uned. 6188). Both parties sought and obtained leave to appeal parts of the appeal judge's order.

The Ontario Court of Appeal dismissed the appeals.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - The parties divorced after a nine year marriage - They had three children - They resolved financial and custody/access issues in a 2001 consent order - The mother sought to vary the 2001 order - An arbitrator awarded the mother, inter alia, retroactive and prospective child support - The father appealed - The appeals judge set aside the award - The Ontario Court of Appeal dismissed the mother's appeal - The court agreed with the appeal judge that the arbitrator did not properly apply the analysis required by the Supreme Court of Canada in D.B.S. v. S.R.G. in making the award - In particular, the arbitrator's reasons made it unclear how the four factors set out by the majority in D.B.S. affected his decision - One of those factors was the conduct of the payer parent (blameworthy conduct) - In the appeal judge's view, the arbitrator might have attached weight to the father's failure to disclose his income in 2003 despite the fact that a court order provided that he did not have to disclose tax returns - The court agreed with the appeal judge that it would have been incorrect for the arbitrator to have in any way considered the father's failure to disclose in reliance on a court order as blameworthy - While it was not necessary in every case in which a court made an order for retroactive child support pursuant to a DBS analysis that some element of wrongdoing or blameworthiness be shown on the part of the payor, there was no basis to interfere with the appeal judge's decision to set aside the retroactive child support award in the circumstances of this case - See paragraphs 14 to 18.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 10].

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. 10].

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. 14].

Authors and Works Noticed:

MacLeod, James G., Annotation to Rozen v. Rozen, 2003 CarswellBC 1564 (C.A.), generally [para. 26].

Counsel:

Sarah M. Boulby, for the applicant/appellant;

Gary S. Joseph and Kristy A. Maurina, for the respondent.

These appeals were heard on October 9, 2012, before O'Connor, A.C.J.O., Armstrong and Juriansz, JJ.A., of the Ontario Court of Appeal, who released the following decision on October 25, 2012.