Child support-variation-Olaitan v. MacDougall 2014 PECA 5
DAVID OLATUNDE OLAITAN ( APPELLANT)
SARA ANNE MacDOUGALL ( RESPONDENT)
Reasons for judgment:
BY THE COURT:
 This is an appeal from an order for variation of child support to include provision for contribution to expenses for child care.
 The appellant father and respondent mother are the parents of a child, [*], who turned three in September 2013. The parents lived together for about a year, and they separated in 2011 shortly before the child was born. After the parents separated, they entered into mediated parenting and support agreements, on consent, which provided for joint custody, shared parenting with the child living primarily with the mother and the father having gradually increasing access with the child, and basic child support in accordance with the Child Support Guidelines (“Guidelines”). The obligation to pay basic child support was set out in a Supreme Court order dated November 8, 2012, and filed in the Supreme Court on November 15, 2012 (the “Child Support Consent Order”).
Notice of Motion: Proceedings in the Supreme Court
 On August 5, 2013, the mother filed a Notice of Motion seeking a variation of the Child Support Consent Order to require the father to contribute 50% of the cost of daycare for the child, which had increased from $137. per month to $508. per month. In her accompanying affidavit, the mother deposed that she was moving under the Family Law Act for sharing of child care expenses of $508. per month because the child resided with her on a full-time basis; her child care subsidy had been reduced since she was working more hours and she needed support; following completion of her maternity leave her income from employment would be increasing from $25,000. to about $39,000. per year; the father’s income from full-time employment as a Licensed Practical Nurse was $36,000.-$38,000. per year; and that she would bring a child care receipt to the hearing of the motion.
 The mother’s motion was heard in the Supreme Court on November 13, 2013. Both parties appeared in person. Neither party was represented by counsel. The hearing was short. The hearing judge invited the mother to provide any additional information or testimony that she wished to provide. She produced a daycare invoice/receipt, which was shown to the father and then made an exhibit. The mother mentioned the fact of a subsidy, and her preference that the father pay the daycare service provider through the Director of Maintenance Enforcement. In addressing the father, he commenced by observing that there was a year-old notice to file financial information on file, from the original application, but there was no notice to file accompanying the Notice of Motion. He then asked whether, in any event, the father had brought financial information with him. The father responded he did not see a notice and that he had not brought such information, because he didn’t know he had the obligation. The motions judge then moved on to confirming that the father’s income had increased from $36,000. by about 1%. He asked the father if he had any other information about his income, and advised him he had the same options as the mother about giving testimony or providing documents. The father said he had none. The hearing judge asked the mother if she had anything else to say. She didn’t. The hearing judge then rendered his decision and reasons, which stated:
The Court: .... Okay, based on information that’s been presented to me, it appears to me that Mr. Olaitan has received a small, a modest increase in pay since 2011 when he earned 36,513 and I estimate his income for thirty-seven– for, for 2013 will be $37,000. Ms. MacDougall estimates her income for 2013 will be $39,000 and I accept that figure and I find there has been a material change in circumstances, in particular the greatly increased cost of care for, is it [*]– for [*] and I order Mr. Olaitan to pay section 7 expenses for cost of care for [*] based on the percent of the two incomes and 37,000 versus 39,000 means that Mr. Olaitan will pay 48% of the cost of daycare and Ms. MacDougall will be responsible for the remainder. Payments are to be made through the Director of Maintenance Enforcement and–all other provisions in the Child Support Consent Order dated November 8th, 2012 will remain in full force and effect.
The hearing judge determined that the order for payment of child care expenses would be effective August 22, 2013, and payments would be due on the 22nd day of each month.
 This judgment was recorded in a Child Support Variation Order filed in the Supreme Court on November 15, 2013 (the “Variation Order”).
Appeal from the Variation Order
 The father filed a Notice of Appeal on December 13, 2013. He seeks to nullify the portion of the Variation Order that requires him to pay 48% of the child care cost of the mother commencing August 22, 2013. The father’s grounds of appeal are that the hearing judge made errors by: 1) not ascertaining whether the father understood the English language, including particularly the word “testimony;” 2) not hearing from the father, who did not understand the hearing judge; 3) listening only to the mother’s testimony; 4) failing to find out that the father was a full-time university student in nursing and would have undue hardship.
 On January 17, 2014, the father brought a motion to present new evidence on the appeal, on the grounds that: (a) he did not have opportunity to present evidence on the hearing of the motion; (b) as an international student with double tuition he will suffer undue hardship; (c) he has shared custody and parenting potential that should be considered; and (d) his spending more time with his child would be in the child’s best interest.
 On February 25, 2014, the father brought a motion to stay the operation of the Variation Order pending determination of the appeal. His grounds state that: (a) he did not understand the need to give evidence; (b) the mother did not provide material information to the court about the father’s contribution to child support; (c) the mother’s failure to consult the father about opportunities for him to provide parenting in lieu of daycare; (d) the mother’s living expenses are reduced as she lives at home; and (e) the father’s annual tuition as a foreign student is $25,000. per year.
 The appeal is allowed on its merits, because the Variation Order was not made in compliance with the requirements of section 7 of the Guidelines. The criteria for determining whether an amount to cover child care should be awarded was not taken into account. The Variation Order is declared a nullity; it is void ab initio. Accordingly, the Child Support Consent Order filed in the Supreme Court on November 15, 2012 continues to be in effect, without variation. It is thereby unnecessary to consider and determine the appellant’s motions for new evidence or for a stay.
Appellant’s right of appeal
 An appeal lies to the Court of Appeal from a variation order of the Supreme Court made pursuant to the Family Law Act.
Child Support for child care expenses
 An order for special expenses for child care may be made pursuant to section 7(1), which states:
s.7(1) Special or extraordinary expenses – In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; . . . . .
(f) extraordinary expenses for extracurricular activities.
. . . . .
7.(3) Subsidies, tax deductions, etc. – Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.
 A variation order must be made in accordance with the applicable provisions of the Family Law Act and the applicable Guidelines (Family Law Act, s.37(2.2); Guidelines, s.2(4)(b); MacDonald and Wilton, 2014 Annotated Divorce Act (“MacDonald and Wilton”), at pp.608-610).
 The s.7 provision for special expenses is discretionary. Where it is determined that an amount for child care should be awarded, sharing of the expense in proportion to the incomes of the parents may, but not necessarily will, prevail. However, the three stated conditions must be met before the discretion to award an amount is exercised: MacDonald & Wilton, at p.187.
 The Variation Order in question was not made in compliance with s.7 of the Guidelines.
 In deciding whether or not to make the Variation Order, the hearing judge did not take the statutory criteria into account. This was an error of law that vitiates the Variation Order. In particular:
1) he did not take into account “the necessity of the expense in relation to the child’s best interests.” This would involve consideration at least of both the purpose of the daycare and the opportunity for the father and mother to provide care. Although this is a proceeding under the Family Law Act, the principle of maximum contact with each parent stated in s.17(9) of the Divorce Act always applies (MacDonald and Wilton, at p.608).
2) he did not take into account “the reasonableness of the expense in relation to the means of the parents.” This would involve consideration of at least the living arrangements and special expenses, e.g. university tuition, two households, of both parents. Once a material change of circumstances is established, the court is entitled to and should consider all the relevant facts of the case afresh, and should not restrict itself to considering only the change of circumstances or only the income from employment of each parent. Consideration of the means of the parents involves much more than consideration of their incomes (MacDonald and Wilton, p.611-612).
3) he did not take into “account the reasonableness of the expense in relation to ... the family’s spending pattern prior to the separation“ of the mother and father.
4) In addition, he did not take into account the daycare subsidy as is required under s.7(3), the existence of which the mother mentioned on the record.
 It can be inferred from the paucity of information in the record that the hearing judge was not aware of the relevant circumstances that would have enabled him to take the statutory conditions for the judicial exercise of discretion into account.
 One reason the statutory criteria could not have been taken into account is that the mother’s Notice of Motion for child support did not comply with sections 37(2.2) and 41 of the Family Law Act. Those provisions require both parties to comply with the Guidelines, and to serve and file a financial statement. Similarly, the mother’s Notice of Motion did not comply with section 21 of the Guidelines, which states particular requirements for filing of both an applicant’s and a respondent’s income information.
 The father was not served with a notice to file financial information on the motion for variation. Accordingly, he was not in breach of any such obligation.
 Further, the hearing judge treated the daycare expense as an “extraordinary expense.” Daycare expense is a “special” expense under s.7(1)(a); it is not an “extraordinary” expense under s.7(1)(f) of the Guidelines. The considerations that enter into the exercise of judicial discretion on whether to order “special” and “extraordinary” expenses are different.
 Having been made without consideration of the statutory criteria, the Variation Order is not properly made and cannot stand.
 It is important to keep in mind the objectives of subsection 33(8) of the Family Law Act and s.1(a) of the Guidelines which require both a fair standard of support for the child and a fair contribution from both parties based on their financial means. There is no need to resort to section 10, undue hardship application, as requested by the appellant, on a section 7 application. The exercise of discretion directed by s.7 involves consideration of the means of both parents and the related reasonableness of the expense. When considering ability to pay, it is necessary to focus on the means of the parents, not just on their incomes. This involves consideration of all the financial resources of both parents. This is an important distinction from the straightforward test for calculating basic child support under s.3 of the Guidelines. A summary of the caselaw on s.7 considerations is provided in Julien D. Payne, Child Support Guidelines in Canada, Some landmark cases, Part 5 – Extraordinary Expenses. Section 7 of the Child Support Guidelines, The Advocates Quarterly, Vol.42, No.3 February 2014, p.309 at pp.350-355.
 On hearing an application, a hearing judge needs to ensure that all the statutory criteria are all taken into account. The determination of whether an amount to cover child care should be awarded may involve some additional administration or inquiry. In Contino v. Leonelli-Contino, 2005 SCC 63 (CanLII), the Supreme Court of Canada dealt with the need for effective court management of applications for child support where the parents have shared custody of a child or children. Sections 9 and 7 are analogous in the sense that they are both provisions that authorize a judge to order child support, and both list criteria that must be taken into account. Instruction on effective court management of the process can be taken from the Contino judgment. Bastarache J., for a seven of eight judge majority, provided extensive directions regarding the optimal and minimum information that is required to make an informed decision, and on the associated role and responsibility of the hearing judge. It is important that the parties lead evidence relating to each statutory criterion (para.56). The hearing judge should demand information from the parties when it is deficient. The court has a broad discretion; however, the discretion is to be exercised based on the objectives of the Guidelines and the criteria of the particular provision under consideration (para.68). Bastarache J. concluded:
 The determination of an equitable division of the costs of support for children in shared custody situations is a difficult matter; it is not amenable to simple solutions. Any attempt to apply strict formulae will fail to recognize the reality of various families. A contextual approach which takes into account all three factors enunciated by Parliament in s. 9 of the Guidelines must be applied.
These directions can be applied, with appropriate modifications, to the case management and analysis of the hearing judge on a s.7 application.
 It can be also expected that the responsibility of the hearing judge to ensure a fair process and to prevent unfair disadvantage may be increased where one or both of the parties are not represented by counsel (Canadian Judicial Council Policy on Self-represented Litigants).
 As well, a hearing judge needs to be alert that when the facts in issue are contentious, sometimes it may not be feasible to supplement the documentary evidence with viva voce evidence either before or upon hearing the application, such that it will be advisable to invoke Rule 38.11(1)(b) and order the whole application proceed to trial.
Rules of Civil Procedure
 Apart from these legal errors, the Notice of Motion was never properly before the Supreme Court, and it followed that the hearing for the relief sought was not properly conducted.
 The mother’s request for variation of the original child support order proceeded as a notice of motion, while it should have proceeded as a notice of application. This is an important distinction. Civil Procedure Rule 71.08.1 Variation of an Application in a family law proceeding adopts Rule 70.23Variation of a Final Order for Corollary Relief in a divorce proceeding. Rule 70.23 states that a person who wishes to vary a final order for support shalldo so by notice of application.
 That Rule stipulates particular procedures that aspire to assure sufficient information will be before the court and that the parties will be fully heard. It requires an applicant to file and serve a financial statement in prescribed form, for the respondent to file a financial statement whether or not he or she intends to defend the application, and it provides that where the respondent does not comply an applicant can move for an order to require it.
 The Rule directs that the Registrar of the court shall not accept the Notice of Application or appearance, as applicable, without the financial statement. As well, an application for variation is an application to vary a final order, and it too is an application for final relief.
 The directions in Rule 70.23(1) are mandatory. As such an application for variation “shall” proceed and be heard and decided as an application for final relief under Rule 38; it could not proceed and be heard as a motion under Rule 37, which would be only for interim relief.
 The variation order cannot stand. It should be declared a nullity and rendered void ab initio. Accordingly:
1) we declare the Variation Order a nullity because it does not comply with section 7 of the Guidelines, and order it be quashed;
2) we remit the Respondent’s Notice of Motion for variation back to the Supreme Court, to be heard as an Application, and to be decided in compliance with the Guidelines.
 Regarding costs, this appeal came about as a result of non-compliance with the Guidelines and Civil Procedure Rules within the court system. There being no fault attributable to either party, there will be no order for costs of the appeal.
Chief Justice David H. Jenkins
Justice Michele M. Murphy
ustice John K. Mitchell
 The following meaning for “means” by Payne, Julien D., and Marilyn A. Payne: Canadian Family Law. Toronto: Irwin Law, 2001, was adopted in Leskun v. Leskun, 2006 SCC 25 (CanLII),  S.C.J. No. 25:
In Strang v Strang, 1992 CanLII 55 (SCC),  2 S.C.R. 112, the Court stated that the traditional understanding of the word “means” includes, “all pecuniary resources, capital assets, income from employment or earning capacity, and other sources from which the person receives gains or benefits” (p.119). J. Payne and M. Payne elaborate as follows:
The word means includes all pecuniary resources, capital assets, income from employment or earning capacity, and any other source from which gains or benefits are received, together with, in certain circumstances, money that a person does not have in possession but that is available to such person.”
FAMILY LAW - Child Support - Child Support Guidelines - Section 7 child care expenses - Application for variation of a final child support consent order - Declaration that the variation order is a nullity because the hearing judge did not take into account the section 7 criteria for determining whether an amount to cover child care should be awarded.
CIVIL PROCEDURE - Family law - Child support variation order - Under the Rules of Civil Procedure, an application for variation of a final order for corollary relief shall proceed and be heard as a notice of application in accordance with Rules 71.08.1, 70.23, and 38, and not as a motion under Rule 37.
TEXTS CONSIDERED: MacDonald & Wilton: The 2014 Annotated Divorce Act and Federal Child Support Guidelines; Payne, Julien D.: Child Support Guidelines in Canada, Some landmark cases, Part 5 –Extraordinary Expenses; Child Support Guidelines, The Advocates Quarterly, Vol.42, No.3 February 2014; Payne, Julien D., and Marilyn A. Payne: Canadian Family Law. Toronto: Irwin Law, 2001