Author: dawi

“Section 19(1)(a) of the Federal Child Support Guidelines, SOR/97-175 permits the court to impute additional income where a spouse is intentionally underemployed:

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

This section was discussed by the Court of Appeal in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.). The trial judge referred to Drygala v. Pauli and correctly observed that in order to find intentional underemployment and impute income to a parent, there is no need to find a specific intent to evade child support obligations. He also noted that in order for parents to meet the legal obligation to support their children, they must earn what they are capable of earning.

There is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment: Drygala v. Pauli, at paras. 24-37. The reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed.”

Lavie v. Lavie, 2018 ONCA 10 at 23-24 & 26

“Counsel for mother argues that the court requires a trial in order to make a fair and just determination of the issues. He relies on Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 (CanLII), a decision which directs courts of first instance to proceed with caution when entertaining a motion for summary judgment in a child protection matter, having regard to the fact that child protection litigation engages the Charter rights of both parents and the children. (See para 65).

In summarizing and clarifying the approach that courts should take to summary judgment in child protection proceedings Benotto J.A. sets out the following at paragraph 80;

1. Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
2. The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
4. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

In Kawartha, one of the issues was whether and when the court may order access to a child in extended society care, under the newly formulated provisions in the CYFSA. The court concluded that the change in the legislation was not just about semantics but represents a significant shift in the approach to access in extended care. In elaborating on the change in relation to the burden of proof in such an inquiry, the court clarifies that the burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities. The court concludes that it is no longer the case that a parent who puts forward no evidence will not gain access. I do not take this interpretation to mean that in other contexts, under this legislative scheme, a responding parent need not put forward any evidence in support of their position.

The burden of proof rests with the party who moves for summary judgment. (See Sanzone v. Schechter, 2016 ONCA 566 (CanLII) at para.30.) Under Rule 16(4) of the Family Law Rules the moving party must “set out specific facts showing that there is no genuine issue requiring a trial.” The party must satisfy the judge that it is in the interest of justice that the case be decided summarily asking the appropriate questions. (See Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para.48.)

Rule 16 (4.1) then dictates how a party who wishes to resist summary judgment is to respond, as follows:

In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

In Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200 (CanLII), 242 A.C.W.S. (3d) 794, affirmed 2014 ONCA 878 (CanLII), Corbett J. confirmed the continued applicability of the rules requiring the responding party to “put its best foot forward” or “lead trumps or risk losing”. Combined Air Mechanical Services v. Flesch, 2011 ONCA 764 (CanLII) at para 56: Bhakhri, v. Valentin, 2012 CarswellOnt 6667 (S.C.J.), para. 7; Pizza v. Gillespie (1990), 1990 CanLII 4023 (ON SC). The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. See T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665 (CanLII) at para. 30.”

Highland Shores Children’s Aid Society v. J.B. et al., 2020 ONSC 448 (CanLII) at 91-96

“The Supreme Court of Canada stated the following in Michel v. Graydon, 2020 SCC 24, commencing at para. 10:

[10]   In D.B.S., this Court endorsed certain important principles governing orders for child support (including retroactive child support) that merit restating here:

–         Child support is the right of the child, which right cannot be bargained away by the parents, and survives the breakdown of the relationship of the child’s parents (para. 38);

–         Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together (para. 38);

–         The child support owed will vary based upon the income of the payor parent, and is not confined to furnishing the “necessities of life” (paras. 38‑45).

–         Retroactive awards are not truly “retroactive”, since they merely hold payors to the legal obligation they always had to pay support commensurate with their income (para. 2);

–         Retroactive awards are not confined to “exceptional circumstances” or “rare cases” (para. 5); and

–         In determining whether to make a retroactive award, the payor parent’s interest in certainty in his/her obligations must be balanced with the need for “fairness and . . . flexibility”. A court should consider whether the recipient parent’s delay in seeking retroactive support was reasonable in the circumstances, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail (para. 133).

The Supreme Court went on to state at para 32:

[32]   Retroactive child support awards will commonly be appropriate where payor parents fail to disclose increases in their income. Again, D.B.S. is instructive: “a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct” (para. 107). And where the strategy for avoiding child support obligations takes the form of inadequate or delayed disclosure of income, the effect on the child support regime is especially pernicious. This is because the methodology adopted by the Federal Child Support Guidelines, SOR/97‑175, which are expressly incorporated in the FLA, results in information asymmetry. Apart from shared parenting arrangements, the Guidelines calculate child support payments solely from the payor parent’s income. At any given point in time, therefore, the payor parent has the information required to determine the appropriate amount of child support owing, while the recipient parent may not. Quite simply, the payor parent is the one who holds the cards. While an application‑based regime places responsibility on both parents in relation to child support (D.B.S., at para. 56), the practical reality is that, without adequate disclosure, the recipient parent will not be well‑positioned to marshall the case for variation.

…

The Supreme Court stated in Colucci v. Colucci, 2021 SCC 24, stated commencing at para. 4:

[4] The applicable framework must give effect to the objectives and provisions of the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”), particularly the core objective of safeguarding the child’s right to a “fair standard of support” (s. 1). Retroactive variation applications also require courts to weigh the certainty and predictability provided by an existing court order against the need for flexibility in a system that ties support to fluctuating payor income. The framework set out below balances these interests in a way that incentivizes payment of the right amount of child support when it is due and the timely disclosure of financial information — the linchpin of a just and effective family law system. Rules which create perverse incentives to ignore or postpone parental support obligations are to be firmly rejected in favour of legal standards designed with the fundamental purposes of child support in mind.

In Colucci, para. 34 the Supreme Court went on to state:

[34] The enactment of the Guidelines in 1997 marked a paradigm shift in Canadian child support law away from a need-based approach to one which clearly established the child’s entitlement to support commensurate with the payor’s income (D.B.S., at paras. 42-45). The Guidelines rest on the principle that “spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation” (Divorce Act, s. 26.1(2)). Section 3 of the Guidelines provides that the amount of child support is presumptively determined in accordance with the applicable table in Schedule I. Putting aside shared custody arrangements, the tables generally allow parents and courts to calculate the amount of child support owing based on just two numbers: the payor’s income, and the number of children to be supported…”

          Tyndall v. Tyndall, 2022 ONSC 131 (CanLII) at 61-62, 64-65

“Please, Please, Please…don’t use a police station for parenting exchanges.

If you think mere proximity to the cop shop will make unruly adults behave – or protect children from emotional harm – you should have sat in on any one of the 22 days of this nasty trial.

This was a motion to change a consent final order.  Except, clearly the parents never really regarded the order as final.  More like an interlude in a never-ending high-conflict war.  A strategic pause while they assembled better evidence for inevitable motions and cross-motions.

They love their son and hate each other.

They really love their son.

And really hate each other.

We delude ourselves if we think court orders will ever overcome such powerful and conflicting emotions.

1. 1. 1.    All we can really do is try to separate the good from the bad.
      2.    Promote more opportunities for the love.
      3.    And eliminate anyopportunities for the hate.

But routinely sending combative parents with their anguished children to a police station is an abdication of responsibility.

1. 1. 1.    It’s like assembling a bomb every week and driving it to the fire hall.
      2.    Sure, it’s nice to know first responders will be on the scene if there’s an explosion.
      3.    But why set the stage for predictable disaster?
      4.    Wouldn’t it make more sense to defuse the bomb ahead of time?  To keep volatile ingredients – volatile parents– as far apart as possible?

The “safety” rationale for police station exchanges is dubious at best.

1. 1. 1. The police aren’t equipped for this type of service.  The station is not a child-friendly environment.
      2. They don’t know you’re coming.
      3. They don’t want you there.
      4. They don’t know anything about you, or what to watch for.
      5. Generally, they’re so busy with other duties, they may not notice who’s doing what.
      6. At any given time, there may not even be a police officer anywhere in sight.

And if we’re choosing a location intended to intimidate adults – what about scaring the kids?

1. 1. 1. By the time high conflict couples make it to family court, their children have already been exposed to far too much chaos and upset.
      2. Many have experienced significant family violence (with its recently expanded definition).
      3. Painful memories of officers attending their home for family trouble calls may be triggered by the dramatic and hyper-stimulating stationhouse environment (the police cars, the uniforms, the guns, the crackling radios, the commotion, the people in crisis).
      4. We can’t undo the unhappiness these children experienced pre-separation.   But why perpetuate the trauma by exposing them to more negativity and upset in the strange and frightening environment of a police station lobby?
      5. These are emotionally vulnerable children who need rescue from parental conflict.  Not a ringside seat.

What message do police station exchanges convey to the innocent child?

1. 1. 1. That the trouble’s not over?
      2. That their world isn’t safe yet?
      3. That they still need to worry?
      4. That someone they love is dangerous or can’t be trusted?
      5. That something bad could happen every time their parents meet?
      6. That officers with weapons might have to intervene?
      7. That one of their parents might get taken away or hurt or punished?
      8. That every transition between parents will be anxiety-producing?
      9. How is a fragile young mind supposed to process so much upsetting information?

Candidly, far too little thought goes into selecting a police station for pick-ups and drop-offs.  It’s a simplistic, convenient default position.

1. 1. 1. It’s an option if you can’t think of anything else.
      2. It’s always open.  You don’t have to re-arrange your schedule
      3. It’s free.
      4. It’s quick.
      5. There’s no waiting list. It’s available instantly and for as long as you want.
      6. There’s no paperwork or pre-arrangement.
      7. There’s usually free parking or bus service.
      8. It requires little effort and not much parental insight or discipline.
      9. It’s open even during the pandemic.
      10. It checks off a lot of boxes for adults.

But how is any of this child-focused?

1. 1. 1. We are constantly told that the best interests of the child must always prevail over adult preference and convenience.
      2. Why then do we gravitate toward this obviously terrible option, simply because adults lack the creativity or commitment to work at better solutions?
      3. Should children suffer just because parents won’t put more effort into solving the problems they created?

As soon as police station exchanges are proposed, the response should be obvious:

1. 1. 1. If the level of conflict is so great that these parents need armed guards to keep the peace, they shouldn’t be having face-to-face contact anywhere.
      2. Even if actualmisconduct is averted, children who have been exposed to family violence will likely experience heightened anxiety whenever they see their parents together.  The presence of police officers isn’t calming.  To the contrary, it reinforces the child’s perception of imminent danger.

Why am I starting this judgment with such a strong warning?  Because this trial could have been avoided – and a four-year-old boy could have had a much happier life – if only the parents had selected an exchange location better than Hamilton Police Station 30.”

            K.M. v. J.R., 2022 ONSC 111 (CanLII) at 1-15

“Family law litigants are responsible not only for their litigation positions, but also for the financial consequences to both parties of funding those positions. A former spouse who engages in “win at all costs” litigation chooses to be as answerable for the resulting litigation fees to the other side as for one’s own fees.”

            S. v. A., 2022 ONSC 55 (CanLII) at 74

“I want to take this opportunity to wish all of the subscribers to the Siegel Family Court Calendar a peaceful and restful break.

I’ve been doing the Calendar now for 4.5 years (about 2.5 years longer than I ever intended) and, despite the amount of work involved, find it stimulating, challenging, and, especially when I hear from many of you with your feedback, rewarding and fulfilling.

See you in 2023, with all new quotes starting January 4^th.”

         Brahm Siegel

“The leading case on classifying legal issues as questions of law, fact or mixed fact and law is Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 (“Southam“). In Southam, the Supreme Court of Canada commented, at para. 35, that, “[b]riefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.”

The parties agree on the appropriate standards of review. The standard of review on questions of law is correctness, while findings of fact and factual inferences are reviewable for palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10 and 25. A question of mixed fact and law involves the application of a legal standard to a set of facts, and is subject to review for palpable and overriding error, except for extricable questions of law: Housen, at para. 26. A question of law may be extricable from a question of mixed fact and law if, for example, the incorrect legal standard is applied, or a part of a legal test is not considered by the decision-maker. The extricable question of law is reviewed on a correctness standard.

The standard of palpable and overriding error was further articulated by the Ontario Court of Appeal in Waxman v. Waxman, 2004 CanLII 39040 (ON CA), at paras. 296, 297 and 300:

[296] The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result.  A “palpable” error is one that is obvious, plain to see or clear: Housen at 246.  Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

[297] An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact.  Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”.  The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254 at 281.

[300]…First and foremost, as indicated above, the “palpable and overriding” standard applies to all factual findings whether based on credibility assessments, the weighing of competing evidence, expert evidence, or the drawing of inference from primary facts.

In Spadacini-Kelava v. Kelava, 2020 ONSC 5561 (CanLII), at para. 32, Kurz, J. referred to the decision of Desormeau, J. in Rosenberg v. Yanofsky, 2019 ONSC 6886, as offering an excellent review of the law regarding the standard of review of the decision of an arbitrator in a family law proceeding, in which she wrote:

7  The decision of an arbitrator deserves as much deference on appeal as does a decision of a trial judge: Palmer v. Palmer, 2010 ONSC 1565 (Ont. S.C.J.) at para. 3 (cited in Reati v. Racz, 2016 ONSC 1967, at para. 28)

8  In reaching an award, an arbitrator sits in the same position as a judge in a lower court when a decision is appealed to a higher court, and for a decision to be overturned on appeal, the appellate court must find that the reasons amount to an error [in] law and that the decision is not correct, or that a palpable and overriding error was made on a question of mixed fact and law: Gray v. Brusby, 2008 CarswellOnt 4045 (Ont. S.C.J.) at para. 27, and Palmer, supra, at para. 5, cited in Reati v. Racz, 2016 ONSC 1967, at para. 29.

…

13  The Court should not interfere with an arbitrator’s award unless it is satisfied that the arbitrator acted on the basis of a wrong principle, disregarded material evidence, or misapprehended the evidence: O’Connell v. Awada, 2019 ONSC 273, at para. 9, citing with approval Robinson v. Robinson, [2000] O.J. No. 3299 (Ont. S.C.J.), at para. 5.

The issues raised in this appeal involve questions of law; questions of fact; and questions of mixed fact and law. The Arbitrator’s determinations with respect to questions of fact and mixed fact and law are entitled to deference and cannot be interfered with unless they amount to palpable and overriding error in facts or in mixed fact and law. The question is whether, the Arbitrator erred, with respect to identifying the correct legal test (an error of law), or correctly identified the legal test but erred in applying the test to the facts (an error of mixed fact and law).

Due to the fact-based and discretionary nature of family law cases, trial judges and arbitrators must be afforded a high degree of deference: see Wright v. Holmstrom, 2016 ONCA 360.”

         Solcz v. Solcz, 2021 ONSC 8457 (CanLII) at 99-104

“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.”

         W.S. v. P.I.A., 2021 ONCA 923 (CanLII) at 3

“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.”

         Vanos v. Vanos, 2010 ONCA 876 (CanLII) at 13-16

“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.”

Peerenboom v. Peerenboom, 2018 ONSC 7562 (CanLII) at 77