“Parenting orders are inherently exercises of discretion: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13. A trial judge’s exercise of discretion and factual findings in connection with it are entitled to deference on appeal: A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, at para. 4. The caution an appellate court must show before interfering with a parenting order by a trial judge is all the more pronounced where, as here, the decision has already been implemented and we are asked to interfere with the trial judge’s step by step process mid-course, but without current information.”
Author: dawi
December 21, 2022 – Determining Child Support: Actual vs Estimated Income
“In our view, where the amount of child support that should have been paid in a prior year is under consideration, the payor’s actual income for that year is the amount that should be used to calculate support for the prior period, so long as the payor’s actual income for the prior period is known.
When calculating prospective child support, income from the previous year is used to calculate future support, essentially as a matter of convenience, because actual income for the upcoming year is incapable of exact determination. However, where, as here, the actual amount of income earned in a prior year is known, it is that amount that should determine the quantum of support that should have been paid.
Our conclusion in this regard is rooted in common sense – but also in s.2(3) of the Child Support Guidelines, SOR/97-175, which states, “[w]here, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used.”
Further, we agree with the following comments of Baltman J. in Desjardins v. Bart, 2006 CanLII 33701 (ON S.C.) at para. 17:
Although the normal practice, based on convenience, is to address child support going forward based on the previous year’s income, once the court is intervening and looking backwards at a particular period, it makes sense to adjust child support retroactively for the relevant period, which in this case is 2004.”
December 20, 2022 – Compensatory Support
“Compensatory support is intended to compensate a spouse upon the breakdown of the marriage for contributions made to the marriage, such as sacrifices made for a spouse’s career and loss of economic opportunity sustained as a result of raising children. This is primarily applicable where a property division is unable to achieve this result. Where a spouse has the capacity to be self-sufficient but the spouse’s ability to enjoy the same standard of living as during the marriage has been negatively impacted as a result of the marriage breakdown, compensatory support helps to ensure that the economic impact of this breakdown is equitably shared. Non-compensatory support arises where there is an economic dependency that may be due to a variety of factors such age, illness or disability. These factors need not necessarily be connected to the marriage.”
December 19, 2022 – Motions & The Role of “Status Quo”
“As I have previously emphasized in Kerr v. Kerr, the Court of Appeal statement in Papp v. Papp that clear and compelling evidence is typically required to disrupt the status quo on a motion for temporary relief did not establish a presumption that the status quo should continue absent clear and compelling circumstances that make a change absolutely necessary. On motions dealing with temporary custody, residence and access there is no presumptive rule in favour of the status quo that must be rebutted by the party seeking to change the existing arrangements. As the Court of Appeal emphasized in Papp v. Papp, the applicable test remains the best interests of the child. In applying that test, there is an obligation on the part of the court to carefully scrutinize and weigh the quality, magnitude, and strength of the evidence adduced in support of a change to the status quo arrangements, and to ensure that the evidence is sufficiently compelling before acting upon that evidence to vary the existing arrangements. The Ontario Divisional Court highlighted the importance of avoiding presumptive rules on motions relating to temporary custody and access in the case of Holt v. Anderson, 2005 CarswellOnt 5158, (Div. Ct.). It emphasized that the overriding consideration in such cases is the best interests of the child, and that the maintenance of the status quo arrangements as of the time of the hearing should not be elevated into an immutable principle.
The Supreme Court of Canada has also highlighted the importance of avoiding rigid rules and presumptions in carrying out the best interests analysis in custody and access cases.
In determining the issue of whether the status quo respecting decision-making and timesharing should be changed in the context of a motion for temporary relief, it is important to maintain a focus on what is meant by “the status quo.” The courts have clarified that the phrase “status quo” with respect to timesharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. (Irwin v. Irwin(1986), 3 R.F.L. (3d) 403 (H.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (S.C.J.); Horton v. Marsh, 2008 Carswell NS 371 (S.C.)) I agree with this proposition. This court has held in many cases that the status quo that is relevant on temporary custody and access motions is that which existed prior to the separation between the parties. (see, for example Howard v. Howard (1999), 1 R.F.L. (5th) 375 (S.C.J.)). In my view, for the purposes of applying the principles set out in Papp v. Papp regarding the strength of the evidence required to disrupt the status quo arrangement, the status quo that is relevant is that which existed just prior to the parties’ separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp.”
December 16, 2022 – Compensatory Support Principles
“…it is important to observe, as the trial judge did, that spousal support is driven by both compensatory and non-compensatory, or needs-based, considerations: Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, at para. 201. The appellant’s argument focuses only on errors in assessing need, despite the fact that the respondent’s strongest entitlement to support was compensatory: to “recognize any economic advantages” arising from the marriage (Divorce Act, s. 15.2(6)(a)), to compensate her for her partnership role during a marriage of nearly 25 years, and to give her a continued share of the fruits of that partnership.
In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at 870, the Supreme Court of Canada explained how a court should evaluate the compensatory grounds for spousal support:
Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), supra, and Linton v. Linton, supra). Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.
The trial judge was entitled to approach the question of the respondent’s entitlement by referring to the standard of living the parties enjoyed during their marriage. The trial judge was also entitled to determine that “without spousal support, Ms. Plese w[ould] have suffered economic hardship as a result of the end of the marriage.” The respondent’s contribution to the parties’ financial security in the early years of the marriage enabled the appellant to take business risks that might otherwise not have been possible. Coupled with the respondent’s role as the primary caregiver to their three children, the trial judge properly concluded that there was a firm basis on which to make a compensatory spousal support award.”
December 15, 2022 – Implying A Term in a Contract: Oh, Of Course.
“A contractual term may be implied on the basis of the presumed intention of the parties where it meets the “officious bystander” test. The test is set out as follows in Energy Fundamentals Group Inc. v. Veresen, 2015 ONCA 514, at para. 31, quoting from Shirlaw v. Southern Foundries (1926) Ltd., [1939] 2 K.B. 206 at 227, [1939] 2 All E.R. 113 at 124 (C.A.):
Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying. Thus, if while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common: “Oh, of course.”
Implication of a contractual term does not require a finding that a party actually thought about it or expressly agreed to it. Often terms are implied to fill gaps to which the parties did not turn their minds: Energy Fundamentals, at para. 35. On the other hand, a court will not imply a term that contradicts the express language of the contract or is unreasonable: Energy Fundamentals, at para. 36. The analysis of whether to imply a term must be done on an objective basis but having regard to the specific parties and specific contractual context: Energy Fundamentals, at para. 38. See also Banerjee v. Mathoo, 2021 ONCA 140, in which the officious bystander test was applied in the family context.”
December 14, 2022 – How To Interpret a Contract
“In interpreting a contract, a judge must determine the intent of the parties and the scope of their understanding: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, at para. 47. To do so, a judge “must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract”.
At para. 57 of Sattva, the Supreme Court of Canada considered how a judge may use evidence of the circumstances in which a contract was signed. Although a judge may consider the surrounding circumstances, “they must never be allowed to overwhelm the words of that agreement”. The goal of examining surrounding circumstances is rather “to deepen a decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract” [emphasis added]. A court cannot use to the surrounding circumstances “to deviate from the text such that the court effectively creates a new agreement”.
The Court further limited the use of evidence of surrounding circumstances as seen at para. 58 of Sattva. Such evidence “should consist only of objective evidence of the background facts at the time of the execution of the contract (…) that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting”.”
December 13, 2022 – Duty to Disclose
“It is well-established that the most basic obligation in family law is the parties’ duty to disclose financial information and that this requirement is immediate, automatic, and ongoing. As a result, it should not require a court order to enforce: see Roberts v. Roberts, 2015 ONCA 450 (CanLII), 65 R.F.L. (7th) 6, at paras. 11-14. As this court warned in Manchanda v. Thethi, 2016 ONCA 909 (CanLII), 84 R.F.L. (7th) 374, at para. 13: “Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.”
This is because, as this court recognized in Roberts, at para. 12, breach of the disclosure obligation causes real harm:
Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.”
December 12, 2022 – Undoing Family Trusts
“Central to Mr. Karam’s submissions is the fact that the trust was set up for a legitimate objective and that at no time was he acting with the intention of avoiding the rules of the family patrimony. According to him, to include the value of the residence in the family patrimony in the absence of bad faith or fraudulent intention would be to transform unduly a rule of protective public order into a rule of directive public order (R.F., at para. 36). In my view, this reasoning is based on a misunderstanding of the difference between protective and directive public order rules and on the operation of such mandatory rules more generally.
I would agree with Mr. Karam that the rules of the family patrimony are protective public order rules, in that they are imposed by the legislature to safeguard the interests of vulnerable parties and to insure a certain equity within the institution of marriage (C. Dubreuil and B. Lefebvre, “L’ordre public et les rapports patrimoniaux dans les relations de couple” (1999), 40 C. de D. 345, at p. 351). However, it does not follow from this characterization that the operation of these rules will depend on the behavior, intention or good faith of the parties during their contractual relationship, as Mr. Karam suggests (R.F., at para. 32).
In Garcia Transport Ltée v. Royal Trust Co., 1992 CanLII 70 (SCC), [1992] 2 S.C.R. 499, at pp. 528‑30, Justice L’Heureux‑Dubé explained that the difference between protective and directive public order rules arises from the possibility, in the case of protective public order rules, to renounce the protection offered by the law once the right is acquired. This is consistent with art. 423 C.C.Q., which provides that spouses can renounce their rights in the family patrimony only upon the death of the other spouse, the judgment of divorce, separation from bed and board or nullity of marriage. As the Court of Appeal recently stated, [translation] “[t]he courts recognize that ‘any renunciation made otherwise than in the form prescribed by article 423 C.C.Q. is prohibited and contrary to public order’. Such a renunciation ‘must be clear, precise and explicit’. Moreover, a spouse may withdraw his or her renunciation as long as the court has not recorded it” (Droit de la famille — 19582, 2019 QCCA 647, at para. 24 (CanLII) (footnotes omitted); see also Droit de la famille — 131166, 2013 QCCS 2194, at paras. 70-76, conf. by Droit de la famille — 1487, 2014 QCCA 123, at paras. 60-62 (CanLII); Droit de la famille — 112467, 2011 QCCS 4229, at paras. 45-48 (CanLII), conf. by Droit de la famille — 121301, 2012 QCCA 1018, at paras. 44-48 (CanLII)).
It does not follow, as Mr. Karam suggests, that spouses are free to organize their affairs in a way that displaces the mandatory rules imposed by the legislature, provided that they did not intend to avoid these rules or did not act in bad faith. If we were to include this subjective element as a requirement for the operation of mandatory rules, it would necessarily put the burden on the party claiming the protection of the law to demonstrate that the co‑contracting party knew about this rule and was trying to evade it. This would run contrary to the purpose of protective public order rules. I am not aware of any authority, jurisprudential or doctrinal, suggesting that mandatory rules are triggered only by one’s intention to evade them.
I therefore share the view of the trial judge when he writes that the [translation] “question is thus not so much what the Defendant’s objective was in creating the trust, but rather whether the interposition of the trust patrimony would here have the consequence of avoiding the imperative family patrimony rules” (para. 55 (emphasis in original)). Having regard to the contrary opinion, this is also how we should understand the comment made by the Court of Appeal in Droit de la famille — 13681, at para. 31, where Fournier J.A. writes that [translation] “[t]he creation of a trust must not have the consequence of avoiding the application of public order provisions, such as those pertaining to the family patrimony”. In this case, the spouses had transferred all their assets to two trusts constituted based on the advice of their accountant and their tax lawyer in an effort to protect their assets and minimize their taxes (see Droit de la famille — 121905, 2012 QCCS 3977, at paras. 48, 54 and 71 (CanLII)). The remark of Fournier J.A. was made in that context and is not limited, as St‑Pierre J.A. suggests, to spouses who deliberately attempt to avoid the rules of the family patrimony (C.A. reasons, at para. 81).”
December 9, 2022 – Parenting In the Age of COVID
“When the pandemic started in March 2020, case law came out stating that in most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to. There is a presumption that all orders should be respected and complied with. The onus, therefore, is on the party seeking to restrict the other’s parenting time to provide specific evidence or examples of behaviour or plans by the other party that are inconsistent with COVID-19 protocols and expose the child to risk. See: Tessier v. Rick, 2020 ONSC 1886.
However, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 raises sufficient concerns about parental judgment that direct parent-child contact is not in a child’s best interests. In Ribeiro v. Wright, 2020 ONSC 1829, Justice Alex Pazaratz wrote at paragraph 14 that there should be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.
Justice Pazaratz went on to write at paragraph 23 of Ribeiro that “judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. …”
Since the release of Ribeiro, other courts have held that parties must follow COVID-19 protocols, including handwashing, physical distancing, and limiting exposure to others. See: Skuce v. Skuce, 2020 ONSC 1881, at para. 85.
In A.T. v. V.S., 2020 ONSC 4198, the court made an order for no in-person parenting time for a father who refused to follow COVID-19 health protocols.
In Balbontin v. Luwana, 2020 ONSC 1996, Justice David Jarvis wrote that parents cannot ignore the other parent’s inquiries about how they would comply with government directions. All levels of government in Canada, national, provincial and local, he said, have issued public health notices dealing with preventing infection which include guidelines for physical distancing and, where appropriate, self-isolating. Good parents will be expected to comply with the guidelines and to reasonably and transparently demonstrate to the other parent, regardless of their personal interests or the position taken in their parenting dispute, that they are guideline-compliant. Justice Jarvis suspended the parenting time of a parent who was not responsive to the other parent’s inquiries.
In determining a suspension of face-to-face contact the court must assess the medical vulnerabilities of children in the home, the ability of the parents to follow COVID-19 health protocols and the risk to the child of diminishing their relationship with one parent. See: C.L.B. v. A.J.N., 2020 ONCJ 213. The court must balance the harm of COVID-19 exposure with harm to children being denied face-to-face contact with a parent. See: Pollard v. Joshi, 2020 ONSC 2701.
In A.G., supra, where the mother sought to terminate the in-person parenting time of a parent who had only had a single vaccination, Justice Spence wrote that there were competing interests at stake. On the one hand, the father’s parenting time with his child increased the child’s risk of infection for COVID-19. On the other hand, all other things being equal, the child should be entitled to have her parent in her life in a meaningful way – in-person contact being more meaningful than virtual contact. Justice Spence balanced these considerations by reducing the father’s parenting time from two hours to one hour each week and requiring that it take place outdoors.
In L.S. v. M.A.F., supra, the mother only learned at trial that the father was unvaccinated. The mother did not seek to reduce the father’s parenting time of three hours each week but sought additional safety precautions. This court made the following orders to reduce the child’s chances of contracting the virus during the father’s parenting time:
a) The father’s parenting time shall be exercised either outdoors or in the paternal grandmother’s home.
b) The child shall not attend the father’s home. This is because both the father and the paternal grandfather, who reside together, are unvaccinated.
c) The child and the father shall wear masks at all times during the father’s parenting time.
d) Other than the father, the child shall not be exposed to any adult who is not fully vaccinated during the father’s parenting time. This means that the paternal grandfather, if he is not fully vaccinated, cannot have in-person parenting time with the child at this time.
e) If the father, or any person that the child will be exposed to during the father’s parenting time is experiencing any cold, flu or other COVID-19 symptoms, or has been in close contact with someone who has had such symptoms, or tests positive for COVID-19, within the prior 5 days, the father is to notify the mother and rearrange the visit.
f) If the father breaches any of these conditions, the mother may bring a motion to court on an urgent basis to suspend his in-person parenting time.”