Zhao v. Xiao, 2023 ONCA 453

BACKGROUND

The parties were divorced in 2003 and they have 2 children together. They filed a joint affidavit in the divorce proceeding which sets out the agreement they had reached, including the following provisions:

1. The respondent father would pay $950 per month in child support to the appellant mother;
   1. The amount of child support could be altered based on future changes in the father’s income until the children reached 18 years of age

2. If the mother remarried, the amount of child support would be reduced; and

3. The matrimonial home would be transferred to the mother in exchange for a payment of $74,600 in monthly installments equivalent to the monthly child support commencing May 1, 2006, but to be repaid immediately upon the appellant mother remarrying.

The father did not provide his annual income disclosure as was necessary. After the appellant unsuccessfully sought disclosure from the respondent, she commenced an application. She is now appealing the application judge’s decision.

ISSUES

1. Did the application judge err in dismissing the claim for retroactive child support from 2006 until 2013?
2. Did the application judge err in her approach to the mother’s share of the section 7 expenses?

ANALYSIS

1. Did the application judge err in dismissing her claim for retroactive child support from 2006 until 2013?

The Ontario Court of Appeal agreed with the application judge’s finding that the amount owing for child support from 2006 to 2013 was “offset” by the amount the appellant owed the respondent with respect to his share in the matrimonial home. Essentially, this constituted special provisions that directly benefitted the children. Thus, ordering child support for this period would be unfair and unequitable within the meaning of section 37(2.3) of the Family Law Act.

Further, since the parties’ property agreement was intertwined with the respondent father’s child support obligations, the application judge did not err in considering it when assessing the father’s failure to notify the mother of changes in his income between 2006 and 2013.

Thus, the Court of Appeal found that the application judge did not err.

2. Did the application judge err in her approach to the mother’s share of the section 7 expenses?

The Court found that the application judge did not err by ruling that ongoing special and extraordinary expenses be shared by the parties in proportion to their household incomes.

In this case, the respondent has remarried and is the sole supporter of his children and new wife, who cannot work due to an illness. The appellant, however, can work but has chosen not to. Further, the children were listed as her second husband’s dependents for benefits purposes. For example, the appellant’s second husband covered all the oldest child’s tuition expenses through his benefits as a university employee, along with most of the medical and dental expenses.

Thus, the Court of Appeal ruled that while section 7 expenses are generally shared by parties in proportion to their own income, it was not unreasonable for the application judge to apportion the section 7 expenses based on each party’s household income due to the relevant facts in this case.

CONCLUSION

Appeal is dismissed.