Wright v. Zaver, (2002) 158 O.A.C. 146 (CA)

• Judge: Carthy, Charron, Feldman, Sharpe and Simmons, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 26, 2002
• Jurisdiction: Ontario
• Citations: (2002), 158 O.A.C. 146 (CA)

Wright v. Zaver (2002), 158 O.A.C. 146 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. MR.051

Deborah Ann Wright (respondent) v. William Michael Zaver (appellant)

(C34650)

Indexed As: Wright v. Zaver

Ontario Court of Appeal

Carthy, Charron, Feldman, Sharpe and Simmons, JJ.A.

March 26, 2002.

Summary:

The biological father of a teenage boy never had access nor paid support other than under a 1985 consent agreement to pay a $4,000 lump sum. The mother, who was never married to the boy's biological father, married another man (her husband) in 1990, who treated the boy as his own. The mother and her husband separated in 1999 and the husband consented to an order in divorce proceedings requiring him to pay child support in accordance with the Federal Child Support Guidelines. The mother subsequently applied to have the biological father pay child support under the Ontario Child Support Guidelines, notwithstanding the 1985 consent agreement, his noninvolvement with the child and the fact that her husband was supporting the child.

The Ontario Superior Court, in a decision reported [2000] O.T.C. 478, allowed the application and ordered the biological father to pay $509 per month as child support. The biological father appealed, arguing that the motions judge erred: (1) in holding that neither the 1985 agreement for child support nor the resulting court order limited his ability to award child support; (2) in finding that there was a material change in circumstances that permitted him to award support in accordance with the Ontario Guidelines; (3) in failing to consider s. 37(2.3) of the Family Law Act, which allowed the court to depart from a strict application of the Ontario Guidelines where they would result in an amount of child support that was inequitable having regard to special provisions made for the child; and (4) in failing to exercise the discretion contained in s. 5 of the Ontario Guidelines to apportion child support between the husband and the biological father in order to prevent duplicative child support.

The Ontario Court of Appeal dismissed the appeal. The court held that: (1) the Supreme Court of Canada in Willick v. Willick had stated that although a court is not bound by the terms of a child support agreement, a court dealing with an application to vary an order incorporating its terms must treat the prior order as being correct and may only exercise its powers of variation if satisfied that the pre-condition to variation has been satisfied. Therefore, the applications judge in this case erred by failing to treat this application as an application to vary and by failing to treat the 1985 order as being correct; (2) it had been unnecessary for the motions judge to apply the material change in circumstances test in determining whether the mother was entitled to apply to vary the 1985 order because the enactment of the Guidelines created a right to a variation of a prior child support order, and the motions judge was correct in finding that the pre-condition to variation was satisfied in this case; (3) the court interpreted s. 37(2.3) and held that it would not be inequitable within the meaning of that section to apply the Child Support Guidelines in this case (i.e., the judge did not err in applying the guidelines); and (4) the motions judge was correct not to apportion child support between the husband and the biological father because s. 5 applied only to a spouse who stood in the place of a parent or to a parent who was not the natural or adoptive parent of the child.

Family Law - Topic 2346.1

Maintenance of wives and children - Maintenance of children - Concurrent obligations of natural parent and step-parent (incl. apportionment) - The biological father of a teenage boy never had access nor paid support other than a $4,000 lump sum pursuant to a 1985 court order incorporating minutes of settlement - The boy's mother married another man who treated the child as his own and when the marriage ended, agreed to pay child support under the Federal Child Support Guidelines - The mother then applied to have the biological father pay child support under the Ontario Child Support Guidelines - A motions judge allowed the application - The biological father appealed, arguing that the motions judge erred by failing to apportion child support in accordance with s. 5 of the Ontario Guidelines - The Ontario Court of Appeal rejected this ground of appeal - The court affirmed that s. 5 applied only to a spouse who stood in the place of a parent or to a parent who was not the natural or adoptive parent of the child - See paragraph 30.

Family Law - Topic 2347

Maintenance of wives and children - Maintenance of children - Jurisdiction - [See all Family Law - Topic 2360.1 ].

Family Law - Topic 2360.1

Maintenance of wives and children - Maintenance of children - Variation of award or agreement - The biological father of a teenage boy never had access nor paid support other than a $4,000 lump sum pursuant to a 1985 court order incorporating minutes of settlement - The boy's mother married another man (her husband) - Her husband treated the child as his own - When they separated, the husband consented to pay child support under the Federal Child Support Guidelines - The mother then applied to have the biological father pay child support under the Ontario Child Support Guidelines - A motions judge allowed the application - The biological father appealed, arguing that the motions judge erred in holding that neither the 1985 agreement for child support nor the resulting court order limited his ability to award child support - The Ontario Court of Appeal noted that the Supreme Court of Canada in Willick v. Willick stated that although a court was not bound by the terms of a child support agreement, a court dealing with an application to vary an order incorporating its terms must treat the prior order as being correct and may only exercise its powers of variation if satisfied that the pre-condition to variation has been satisfied - Therefore, the applications judge in this case erred by failing to treat this application as an application to vary and by failing to treat the 1985 order as being correct - See paragraphs 27 to 29.

Family Law - Topic 2360.1

Maintenance of wives and children - Maintenance of children - Variation of award or agreement - The Ontario Court of Appeal held that the enactment of the Child Support Guidelines created a right to a variation of pre-existing orders for child support - See paragraphs 1 to 126.

Family Law - Topic 2360.1

Maintenance of wives and children - Maintenance of children - Variation of award or agreement - The biological father of a teenage boy never had access nor paid support other than a $4,000 lump sum pursuant to a 1985 court order - The boy's mother married another man who treated the child as his own and when the marriage ended, agreed to pay support under the Federal Child Support Guidelines - The mother then applied to have the biological father pay child support under the Ontario Child Support Guidelines - A motions judge allowed the application - The biological father appealed, arguing that the motions judge erred in finding that there was a material change in circumstances justifying an order under the Ontario Guidelines - The Ontario Court of Appeal held that the enactment of the Ontario Guidelines created a right to a variation of pre-existing orders for child support and that the court did not retain a residual discretion not to vary once the pre-condition to variation was satisfied - It was therefore unnecessary for the motions judge to consider the material change in circumstances test - The court also stated that the court's discretion not to apply the Ontario Guidelines was limited to the circumstances set out in ss. 37(2.3) and (2.5) of the Family Law Act - See paragraphs 32 to 82.

Family Law - Topic 2360.1

Maintenance of wives and children - Maintenance of children - Variation of award or agreement - Section 37(2.1) of the Family Law Act (Ont.) provided that "in the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may , (a) discharge, vary or suspend a term of the order, prospectively or retroactively; ... (c) make any other order for the support of a child that the court could make on an application under section 33." - The Ontario Court of Appeal held that the word "may" in s. 37(2.1) and in its counterpart, s. 17(1) of the Divorce Act, meant "must", i.e., once the pre-condition requisite to variation was met and there was no residual discretion in the court not to vary - The court stated that "in the case of s. 17(4) of the Divorce Act and s. 37(2.1) of the Family Law Act, the three methods of satisfying the pre-condition to variation are prescribed by s. 14 of the respective Guidelines. Once the requirements of one of those methods have been satisfied, the duty to act is clear." - The material change in circumstances test no longer forms part of the pre-condition to vary - See paragraphs 43 to 82.

Family Law - Topic 4045.1

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - General (incl. interpretation) - [See second, third and fourth Family Law - Topic 2360.1 and second Family Law - Topic 4045.6 ].

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Exceptions and exemptions - The biological father of a teenage boy never had access nor paid support other than a $4,000 lump sum pursuant to a 1985 court order incorporating minutes of settlement - The boy's mother married another man who treated the child as his own and when the marriage ended, agreed to pay child support under the Federal Child Support Guidelines - The mother then applied to have the biological father pay child support under the Ontario Child Support Guidelines - A motions judge allowed the application - The biological father appealed, arguing that the motions judge in failing to consider s. 37(2.3) of the Family Law Act, which allowed the court to depart from a strict application of the Ontario Guidelines where they would result in an amount of child support that was inequitable having regard to special provisions made for the child - The Ontario Court of Appeal rejected this ground of appeal, holding that applying the Child Support Guidelines in this case would not be inequitable within the meaning of s. 37(2.3) - See paragraphs 1 to 126.

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Exceptions and exemptions - Section 37(2.3) of the Family Law Act, allowed the court to depart from a strict application of the Ontario Child Support Guidelines where they would result in an amount of child support that was inequitable having regard to special provisions made for the child - The Ontario Court of Appeal interpreted s. 37(2.3), in particular, discussing the meaning of the word "inequitable" and the phrase "special provisions" as used in s. 37(2.3) - The court referred to the relevant considerations in determining what would constitute "inequitability" - With respect to the phrase "special provisions", the court set out a three part test for applying the special provision exception - See paragraphs 83 to 126.

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Changed circumstances - [See second, third and fourth Family Law - Topic 2360.1 ].

Statutes - Topic 2417

Interpretation - Interpretation of words and phrases - "May" and "Shall" - [See fourth Family Law - Topic 2360.1 ].

Words and Phrases

Inequitable - The Ontario Court of Appeal discussed the meaning of the word "inequitable" as used in s. 37(2.3) of the Family Law Act, R.S.O. 1990, c. F-3 - See paragraphs 100 to 107.

Words and Phrases

May - The Ontario Court of Appeal discussed the meaning of the word "may" as it was used in s. 17(1) of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 and s. 37(2.1) of the Ontario Family Law Act, R.S.O. 1990, c. F-3 - See paragraphs 32 to 82.

Words and Phrases

Special provisions - The Ontario Court of Appeal discussed the meaning of the phrase "special provisions" as used in s. 37(2.3) of the Family Law Act, R.S.O. 1990, c. F-3 - See paragraphs 83 to 98 and 109.

Cases Noticed:

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81; 6 R.F.L.(4th) 161, refd to. [para. 28, footnote 2].

Wang. v. Wang (1998), 110 B.C.A.C. 302; 178 W.A.C. 302; 58 B.C.L.R.(3d) 159 (C.A.), not folld. [para. 35, footnote 4].

Pelletier v. Parent (1999), 219 N.B.R.(2d) 102; 561 A.P.R. 102 (C.A.), not folld. [para. 35, footnote 5].

Laird v. Laird (2000), 250 A.R. 193; 213 W.A.C. 193; 182 D.L.R.(4th) 357 (C.A.), not folld. [para. 35, footnote 6].

Dergousoff v. Dergousoff, [1999] 10 W.W.R. 633; 177 Sask.R. 64; 199 W.A.C. 64 (C.A.), folld. [para. 35, footnote 7].

MacKay v. Bucher (2001), 196 N.S.R.(2d) 293; 613 A.P.R. 293 (C.A.), folld. [paras. 35, 112, footnote 8].

Sherman v. Sherman (1999), 146 O.A.C. 342; 44 O.R.(3d) 411 (C.A.), not folld. [para. 36, footnote 9].

Bates v. Bates (2000), 133 O.A.C. 319; 49 O.R.(3d) 1 (C.A.), folld. [para. 36, footnote 10].

Julius v. Oxford (Lord Bishop) (1880), 5 App. Cas. 214 (H.L.), refd to. [para. 53].

Nouveau-Brunswick (Ministre de la Santé et des Services communautaires) v. M.L. et R.L., [1998] 2 S.C.R. 534; 230 N.R. 201; 204 N.B.R.(2d) 1; 520 A.P.R. 1, refd to. [para. 54].

New Brunswick (Minister of Health and Community Services) v. M.L. - see Nouveau-Brunswick (Ministre de la Santé et des Services communautaires) v. M.L. et R.L.

R. v. Southwark Crown Court; Ex parte Customs and Excise Commissioners, [1990] 1 Q.B. 650 (D.C.), refd to. [para. 55].

Danchuk v. Danchuk (2001), 151 B.C.A.C. 297; 249 W.A.C. 297; 88 B.C.L.R.(3d) 116 (C.A.), refd to. [para. 81, footnote 11].

R. v. Perka, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 83].

Hall v. Hall, [1997] B.C.T.C. Uned. 770; 30 R.F.L.(4th) 333 (S.C. Master), refd to. [para. 89].

Burns v. Burns (1998), 70 O.T.C. 147; 40 R.F.L.(4th) 32 (Gen. Div.), refd to. [para. 102].

Wang v. Wang, [1997] B.C.T.C. Uned. A60; 41 B.C.L.R.(3d) 375 (S.C. Master), refd to. [para. 102].

Wanstall v. Walker, [1998] B.C.T.C. Uned. A72 (S.C.), refd to. [para. 112].

Cane v. Newman, [1998] O.J. No. 1776 (Gen. Div.), refd to. [para. 112].

Statutes Noticed:

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

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 17(1), sect. 17(4), sect. 17(6.1), sect. 17(6.2), sect. 17(6.4) [para. 24].

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 14(a), sect. 14(b) , sect. 14(c) [para. 24].

Family Law Act, R.S.O. 1990, c. F-3, sect. 31(1), sect. 33(1), sect. 33(4)(a), sect. 33(7), sect. 33(11), sect. 33(12), sect. 33(14)(a), sect. 37(1), sect. 37(2.1), sect. 37(2.2), sect. 37(2.3), sect. 37(2.5)(a), 37(2.6) [para. 23].

Family Law Act Regulations (Ont.), Child Support Guidelines, O. Reg. 391/97, sect. 1, sect. 3(1)(a), sect. 5, sect. 14 [para. 24].

Federal Child Support Guidelines - see Divorce Act Regulations (Can.).

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

Counsel:

Corina Anghel Bachman, for the respondent;

Thomas G. Bastedo, Q.C., for the appellant.

This appeal was heard on April 11, 2001, before Carthy, Charron, Feldman, Sharpe and Simmons, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was delivered on March 26, 2002, when the following opinions were filed:

Simmons, J.A. (Feldman, J.A., concurring) - see paragraphs 1 to 108;

Sharpe, J.A. (Carthy and Charron, JJ.A., concurring) - see paragraphs 109 to 126.