Ontario Court of Appeal affirms child support order based on material change in circumstances

The parties implemented the first phase of the planned transition to equal shared parenting time in 2016. The father alleged he had 41 percent of the parenting time by 2017, but the mother refused to implement equal parenting time in September 2018.

The father filed a motion seeking shared parental decision-making, equal parenting time, and a retroactive adjustment to child support for 2017 onward based on the parties’ incomes as required by s. 9 of the Federal Child Support Guidelines, S.O.R./97-175.

The father earned around $160,000 per year, while the mother earned about $200,000 yearly, which was significantly more than she did before the divorce. In response to his motion, she requested sole decision-making and a continuation of the current shared parenting time arrangement.

In September 2023, a judge of the Ontario Superior Court of Justice partly granted the motion and ordered the mother to pay the father retroactive and ongoing child support. However, the motion judge denied the father’s request for equal parenting time and the mother’s request for sole decision-making.

The mother appealed and tried to set aside the judge’s child support determination.

Material change of circumstances

First, the mother alleged the judge made an error in finding a material change in circumstances. The Court of Appeal for Ontario disagreed, dismissed her appeal, and awarded the father $10,000 in agreed costs.

The appeal court affirmed the motion judge’s finding of a material change of circumstances since the 2015 child support orders and his variation of those orders.

The appeal court noted that the judge determined that the father had less than 40 percent of the parenting time and the mother occupied the position of primary parent at the time of the making of the underlying child support orders.

Guidelines’ threshold met

The appeal court also rejected the mother’s second argument that the motion judge erred in finding the father’s parenting time met the annual 40 percent threshold since at least Jan. 1, 2018, as required by s. 9 of the guidelines.

The appeal court upheld the judge’s approach to this issue, refused to intervene with his finding that the father’s parenting time exceeded 40 percent from 2017 onward, and found him entitled to prefer the father’s evidence over the mother’s on this issue.

The appeal court noted that the judge preferred the father’s evidence because it was based on actual rather than prospective parenting times, counted specific overnights, included summer holidays and professional development days in the calculations, and showed a good recollection of specifics during the holidays.

Quantum of support

Lastly, the appeal court disagreed with the mother’s third argument that the motion judge improperly determined the quantum of retroactive child support.

The appeal court saw no error on an extricable legal question, palpable and overriding error, or fundamental mischaracterization or misapprehension of the evidence. The appeal court ruled that the judge properly applied the framework in Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217.

The appeal court stressed that determining retroactive child support is a highly discretionary process. The appeal court added that the judge’s choice to use Jan. 1, 2018 as the start date in assessing the quantum of support benefited the mother.

The appeal court noted that the judge looked at the evidence and considered the following circumstances when determining this issue:

• This was not an initial support order – the parties operated under a child support arrangement for years, knew the childcare expenses, and addressed those expenses in their financial statements and affidavits
• The negotiated amount of support in the mother’s favour in the 2015 order was significantly less than the table amount the father otherwise would have paid, which was a concession since she was not under financial hardship
• The parties were well educated
• The households of both parties had incomes well above the median family income in Canada
• The children’s standard of living in either household was not significantly different
• There was no substantial risk of a differential developing in the future