Siegel's Family Court Calendar

“The starting point for determining a parent’s annual income is the total income in the party’s Income Tax Return (s. 16 Guidelines). However, that is not the end of the inquiry. Section 19 of the Guidelines lists non-exhaustive circumstances in which the court may impute income to a payor as it considers appropriate. The applicant relies specifically on ss. 19(1)(d) and (f) of the Guidelines, which permit imputation where it appears that income has been diverted which would affect the level of child support to be determined, or where the parent or spouse has failed to provide income information when under a legal obligation to do so. As the Court of Appeal for Ontario held in Bak v. Dobell 2007 ONCA 304, 86 O.R. (3d) 196 at para. 36: “When considering whether a circumstance is an appropriate one in which to impute income, a court will bear in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution.”

The exercise of imputing income is to be done in order to come to a fair and reasonable assessment of income, not to punish the payor. Cormier v. Vienneau, 2022 NSSC 98 at para. 26. It is a fact-specific and discretionary exercise. Of course, there has to be some evidence grounding the imputation figure. The court cannot select an arbitrary figure (Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 at para. 44) The onus is on the party requesting that income be imputed to establish an evidentiary basis for the finding: Homsi v. Zaya, 2009 ONCA 322 at para 28.

Gifts are not included in income imputation as a matter of course, but may be included in certain circumstances. Factors to consider when determining whether to include the receipt of unusual gifts in income were set out by the Court of Appeal in Bak v. Dobell at para. 75 as follows:

… Those factors will include the regularity of the gifts; the duration of their receipt; whether the gifts were part of the family’s income during cohabitation that entrenched a particular lifestyle; the circumstances of the gifts that earmark them as exceptional; whether the gifts do more than provide a basic standard of living; the income generated by the gifts in proportion to the payor’s entire income; whether they are paid to support an adult child through a crisis or period of disability; whether the gifts are likely to continue; and the true purpose and nature of the gifts.

Housing benefits may fall into the class of gifts constituting income Malkov v. Stovichek-Malkov, 2017 ONSC 6822 paras. 69-72, appeal dismissed 2018 ONCA 620, 15 R.F.L. (8th) 255.”

            Amid v. Jones, 2023 ONSC 1855 (CanLII) at 8-11

“In R. v. Cunningham, 2010 SCC 10 (CanLII), the Supreme Court of Canada outlined a set of principles on which a lawyer may be permitted to withdraw from acting for a client in criminal matter. The Court also commented that refusing to allow counsel to withdraw should be a remedy of last resort (for obvious reasons). The principles were confirmed as applicable to civil and family law matters by Faieta J., in Froom v. Lafontaine, 2020 ONSC 5650 (CanLII) at paras 20-21).”

            Altman v. Altman, 2024 ONSC 1793 (CanLII) at 3

“The contractual basis for spousal support is based on the undertaking that the Applicant signed when he sponsored the Respondent as a permanent resident to Canada.  That undertaking says:

I undertake to provide for the basic requirements of the sponsored person and his or her family members who accompany him or her to Canada, if they are not self-supporting. I promise to provide food, clothing shelter, fuel, utilities, household supplies, personal requirements, and other goods and services, including dental care. eye care, and other health needs not provided by public health care. I understand that the money, goods or services provided by me must be sufficient for the sponsored people to live in Canada.

I promise that the sponsored person and his or her family members will not need to apply for social assistance.

I make these promises so that the sponsored person and his or her family members listed on this undertaking can be admitted to Canada as permanent residents. understand that the sponsored person and his or her family members will be admitted solely on the basis of their relationship to me as sponsor] and that they do not need to have the financial means to become established in Canada.

I understand that the validity period of this undertaking begins on the day on which the sponsored person enters Canada if that person enters Canada with a temporary resident permit or, If already in Canada, on the day on which the sponsored person obtains a temporary resident permit following an application to remain in Canada as a permanent resident, and in any other case on the day on which the sponsored person becomes a permanent resident The length of the undertaking will wary according to the relationship of the sponsored person and his or her family members to me las sponsor and their age and it ends:

if the sponsored person is my spouse, common law partner, or conjugal partner, on the last day of the period of 3 years following the day on which they become a permanent resident;

The undertaking goes on to say that it continues to be binding even if the circumstances change and the parties separate and divorce.  The law has accepted that these undertakings are “very much relevant” to the determination of spousal support.  As a result, Courts have found them to be agreements that can be considered under section 15.2(4)(c) of the Divorce Act.  Segal v. Qu 2001 CanLII 28201 (ONSC).

In this case, the agreement was signed on August 24^th, 2018.  The matter was previously the subject of a motion before Trimble J.  His Honour issued an endorsement on February 8^th, 2021 in respect of dental and other benefit coverage.

Trimble J. determined that the undertaking required the Applicant to maintain benefits coverage for the Respondent until August 24^th, 2021, three years after the agreement was signed.  I understand that this was done.  Certainly, the Respondent has not provided any evidence to show that she is out of pocket for any benefits expenses in this time period.

As a result, the undertaking applies until August 24^th, 2021.  The question is what does this undertaking require of the Applicant?  A number of cases were relied upon by the parties in respect of what the legal effect of this clause is.  I have considered all of these cases.

One of the earliest cases, Samy v. Samy 2000 BCSC 1211.  In that decision, the Court stated (at para. 13):

[13]      There is no doubt that the sponsorship agreement is a contractual arrangement between the husband and the Government of Canada.  It imposes an obligation on the husband to provide for and maintain his wife for a maximum period of ten years.  The husband has agreed by way of an undertaking to provide for the “essential needs … including shelter, food, clothing and other goods or services necessary for day to day living” for his wife.  I have no doubt that the wife relied on that agreement in that she left Fiji for Canada knowing that her husband would provide for her.  In determining entitlement, the undertaking cannot be ignored.  To do so would render it meaningless.  Moreover, it would be contrary to public policy to permit a person who has given an undertaking to provide support for a spouse to simply ignore the legal obligation to do so.  Obviously, the Government of Canada in requiring such stringent undertakings from prospective sponsors has taken into consideration the inherent difficulties that some persons experience in making the necessary adjustments in coming to a new country and becoming self-sufficient.  It should also be noted that the agreement specifically states that separation or divorce from a sponsored spouse does not cancel sponsorship obligations.  Therefore, the agreement is very much relevant in determining entitlement.  However, the agreement that would otherwise bind the husband for ten years cannot supersede the specific laws that deal with maintenance.  In other words, sponsorship agreements cannot impose obligations greater than those imposed by the family law.  The sponsorship agreement must be considered together with the general principles applicable to spousal maintenance.  In the circumstances the provisions of both the Divorce Act and the Family Relations Act are nevertheless applicable.

There are two points that emerge from this passage.  First, the immigration undertaking can trigger contractual obligations for support.  Second, that the undertaking is not intended to go beyond statutory entitlements.”

            Nijher v. Dhaliwal, 2024 ONSC 1591 (CanLII) at 27-33

“In order to find duress, “there must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement”: Ludmer v. Ludmer, 2013 ONSC 784, 33 R.F.L. (7^th) 331, at para. 53. Duress involves coercing the will of, or directing pressure to, a party so that “they have no realistic alternative but to submit”: Ludmer, at para. 53. It can include “coercion, intimidation or the application of illegitimate pressure”: Toscano v. Toscano, 2015 ONSC 487, 57 R.F.L. (7th) 234, at para. 72.”

            Albaum v. Albaum, 2024 ONSC 1595 (CanLII) at 76

“While the parties’ NFP statements must be considered by the trial judge, as with any evidence presented to the court, the trier of fact can accept none, some, or all of it: Sagl v. Sagl, 1997 CanLII 12248 (ON SC), 31 R.F.L. (4th) 405 (Ont. S.C.), at para. 30; Qaraan v. Qaraan, 2012 ONSC 6017, at para. 35. In this case, there were numerous NFP statements prepared before, during and after the trial, along with oral and documentary evidence from both parties. As the evidence was adduced during the trial, updated NFP statements were produced. This is not unusual, and indeed, may helpfully respond to the court’s resolution of certain key factual disputes, such as the separation date, and so assist the parties and the court in focussing on the outstanding issues.

In this case, the parties did not follow the trial judge’s directions, rending their updated NFP statements unhelpful. The trial judge issued reasons for decision after the trial, asking the parties to prepare new NFP statements reflecting his determinations of various asset values. This is a common and sensible approach, which reflects the fact that it is not the responsibility of the court to prepare such statements. It is up to the parties to prepare and submit their NFP statements: Cong v. Cong, 2007 CanLII 7994 (Ont. S.C.), at para. 38. However, where, as here, the parties fail to accept the trial judge’s determinations, the revised NFPs do not assist.”

            Cronier v. Cusack, 2023 ONCA 178 (CanLII) at 20-21

“Indeed, Marta acknowledges that Greg’s promise in the October 18 email would not have been legally enforceable without the delivery of the subject matter of the promise. The law is clear that regardless of intention, a promise to give a future gift does not create an effective gift at law. An effective gift requires delivery of the subject matter of the trust: Rubner v. Bistricer, at para. 46; Teixeira v. Markgraf Estate, 2017 ONCA 819, 137 O.R. (3d) 641 at paras. 38, 40-44.”

            Burwell v. Wozniak, 2023 ONSC 1685 (CanLII) at 101

“Section 18 of the FLA provides as follows:

Every property in which a person has an interest and that is or, if the parties have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.

The definition of matrimonial home in s. 18 of the FLA indicates that four conditions must exist for a property to qualify as a matrimonial home:

1. 1.    One of the spouses must have an interest in the property;
   2.    The property was ordinarily occupied by both spouses;
   3.    The joint occupation existed at the time of separation; and
   4.    The property was occupied as a family residence.

Section 18 of the FLA clearly contemplates that spouses can have more than one matrimonial home at the same time.  Deciding whether a property qualifies as a matrimonial home within the definition of s. 18 of the FLA is a fact specific analysis focused on determining whether the parties ordinarily occupied the property as a family residence at the time of separation.

…

To determine if a property is “ordinarily occupied”, the court in Farnsworth v. Chang, 2014 ONSC 1871, noted the following:

[55] In Oliver Estate v. Oliver, 2012 ONSC 718, at paras. 47-49, the court recognized the flexible and even minimal occupation requirement of the designation of a matrimonial home:

…the jurisprudence also makes clear that the court must engage in flexible and contextual analysis of ordinary occupation…In Goodyear v. Goodyear, 1999 CanLII 20759 (ON SCDC), [1999] O.J. No. 29 (C.J.) at para. 46, Perkins J. noted that “to occupy something does not require constant or continual occupancy, nor does it require occupancy of every square metre”.  In MacFarland v. MacFarland, 2009 CanLII 26349 (ON SC), [2009] O.J. No. 2149 (S.C.), Mackinnon J. found that the parties need not be physically together when occupying the family home; they simply must both treat it as a family home.

Where usage is minimal or sporadic, the courts have focused on the intent of the parties.  In LeCouter, H.A. Vogelsang J. held that, despite spending only five days at the property in dispute, ordinary occupation was found because the family’s “clear intent and purpose was to live there as a family”.

I find that the preponderance of evidence in this case establishes that the Colonization Rd. home is a matrimonial home within the meaning of s. 18 of the FLA.  The word “ordinarily” is synonymous with “normally”, “commonly” and “regularly”.  In my view, this residence was “regularly” occupied by the parties between 2012 and 2018 and was “regularly” occupied by them at the time of separation.”

            Peters v. Peters, 2024 ONSC 1526 (CanLII) at 108-110, 121-122

“For some time, cases suggested that there was limited jurisdiction under s. 17 [of the Divorce Act] to make temporary changes to a final order for support:  see for example Andries v. Andries, 1998 CanLII 14093 (MB CA), [1998] M.J. No. 196 (C.A.) and Vipond v. Vipond, [1990] O.J. No. 3292 (S.C.J.).  There have been cases since then which suggest that there is jurisdiction to change support orders on a temporary basis.  In Hayes v. Hayes, 2010 ONSC 3650 for example, Spies J. suggested that a support order could be temporarily varied on the same basis for which a stay could be granted (prima facie case; urgency; hardship) and in Berta v. Berta, 2019 ONSC 505, Kurz J. suggested further refined the test for an interim variation to add a further requirement for the moving party to have clean hands.  Therefore, the cases now state that, for there to be a temporary change in support, the moving party must address four issues:

1. 1. 1. 1. 1. 1.    Is there a good prima faciecase for a variation of support;
               2.    Would continuation of support result in a hardship to the payor?
               3.    Is the matter sufficiently urgent to vary support on a temporary basis; and
               4.    Does the moving party come to court with clean hands?”

Raaflaub v. Gonosch, 2020 ONSC 1578 (CanLII) at 7

“A lawyer owes no duty of care to clients of opposing counsel in court proceedings. Lawyers owe a duty of care to their own clients. Suing opposing counsel because of the manner in which they litigate is generally an abuse of process: Ahsan v. Minden Gross LLP, 2024 ONSC 1307 at paras 5 and 6. If a lawyer owed a duty to both their own client and to the opposing party, the lawyer would be in a conflict of interest: Robins v. 2758729 Ontario Inc. et al, 2023 ONSC 4367, at para. 25.

To allow a claim against an opposing party’s counsel would be against public policy. Such a claim would interfere with the loyalty between a solicitor and their client and encourage re-litigation and collateral attacks on decisions reached in the disputes between litigants. It would fundamentally alter the adversarial legal system for a lawyer for one party in a legal proceeding to be accountable to the other party to conduct the proceeding in good faith: Crown Crest Financial Corp. v. Sabbah, 2019 ONSC 7114, 61 C.C.L.T. (4th) 292, at paras. 26-28; Chuvalo v. Worsoff, 2022 ONSC 4079, 75 R.F.L. (8th) 94.

In Chuvalo, at paras. 32-33, Chown J. noted the following:

In our system, the lawyer gives advice, and the client makes decisions and instructs the lawyer. A lawyer’s advice as to strategy is typically subject to privilege and cannot be disclosed by the lawyer without the client’s consent. An adverse party who feels wronged by the strategy taken is not entitled to know if the strategy was taken in accordance with or against the adverse lawyer’s advice. Parties cannot get around this by suing the adverse lawyer.

Our system requires that any complaint over the strategy taken by an adverse party must be resolved in the litigation where that strategy was taken, and not in a further lawsuit. If our system was without this feature, serial lawsuits could spawn from a single underlying dispute. “There would be a temptation, which many would find irresistible, to relitigate in actions against their opponent’s counsel the issues which they have lost in the main litigation, or to attempt to handicap the other side by eliminating experienced and knowledgeable counsel from the case.” [Footnotes omitted.]”

Spasiw v. Law Society of Ontario, 2024 ONSC 1486 (CanLII) at 47-49

“The respondent agreed that he is often the recipient of cash from his mother.  During the years 2016 – 2020, he received between $2,000 to $5,350 per year in cash from her.  In addition, the respondent has received money from his mother to assist with his legal fees in this proceeding.

The applicant says that these payments are gifts that should be included in the respondent’s income for the purposes of child support.  She relies on the judgment of the Court of Appeal in Bak v. Dobell, supra, where Lang J.A. wrote as follows:

[74] Although it seems the legislature intentionally did not include the receipt of gifts given in the normal course in presumptive income, or as an example of an appropriate circumstance under s. 19(1), a court will consider whether the circumstances surrounding the particular gift are so unusual that they constitute an “appropriate circumstance” in which to impute income.

[75] In considering whether it is appropriate to include the receipt of unusual gifts in income, a court will consider a number of factors. Those factors will include the regularity of the gifts; the duration of their receipt; whether the gifts were part of the family’s income during cohabitation that entrenched a particular lifestyle; the circumstances of the gifts that earmark them as exceptional; whether the gifts do more than provide a basic standard of living; the income generated by the gifts in proportion to the payor’s entire income; whether they are paid to support an adult child through a crisis or period of disability; whether the gifts are likely to continue; and the true purpose and nature of the gifts [emphasis added].

…

As Lang J.A. said in Bak v. Dobell, supra, gifts are not typically included in income, but may be added where given in unusual circumstances which suggest they are appropriately considered income.

            A.J. v. D.C., 2023 ONSC 1629 (CanLII) at 85-86, 88