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“When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent. See, for example, Hanson, supra, and Cholodniuk v. Sears (2001), 14 R.F.L. (5th) 9 (Sask. Q.B.). I accept those factors as appropriate and relevant considerations and would add such matters as the availability of job opportunities, the number of hours that could be worked in light of the parent’s overall obligations including educational demands and the hourly rate that the parent could reasonably be expected to obtain.

When imputing income, the court must consider the amount that can be earned if a person is working to capacity while pursuing a reasonable educational objective. How is a court to decide that when, typically, there is little information provided on what the parent could earn by way of part-time or summer employment? If the parent does not provide the court with adequate information on the types of jobs available, the hourly rates for such jobs and the number of hours that could be worked, the court can consider the parent’s previous earning history and impute an appropriate percentage thereof.”

Drygala v. Pauli, 2002 CarswellOnt 3228 at 45-46.

“If the child is not actually enrolled in a full-time program of education by the time their first educational program ends, but is accepted into a further program shortly thereafter, additional legal questions arise: First, can eligibility for child support be revived after it has ended? Second, if eligibility can revive, but there is a gap between the time of enrolment in the subsequent program and the actual commencement of the program, does the eligibility resume as of the date of enrolment or as of the date when classes actually begin? This is an important issue in cases where the period from the time of enrolment until the commencement of the program is lengthy.

Dealing with the first question, a child who loses their entitlement to support by quitting school may regain their entitlement at a later date by meeting the test under the applicable legislation (Lawless v. Asaro, 2003 CarswellOnt 2416(Ont. S.C.J.); Fergusson v. Kurylo, 2005 CarswellSask 167 (Sask. Q.B.); Haley v. Haley, 2008 CarswellOnt 369 (Ont. S.C.J.); Vohra, Supra.) Much of the case-law dealing with this issue has been decided under the Divorce Act, which sets out different criteria for child support eligibility in cases involving children.  However, cases decided under the Family Law Acthave also established that entitlement to child support can be revived when a child of the relationship resumes their educational pursuits after taking time off from their studies (Vohra, Supra.; F. (R.L.) v. F. (S.)(1996), 26 R.F.L. (4th) 392 (Ont. Gen. Div.); Murchison v. Farmer, 2013 CarswellOnt 16632(Ont. C.J.)).   

As I previously held in Radford v. Nunn, 2011 ONSC 7276 (S.C.J.), the test for determining whether there has been a revival of child support entitlement under the Family Law Actis whether the evidence considered as a whole leads to the conclusion that the child achieved a status of true and meaningful independence from their parents during the time when they were out of school. In determining this issue, the factors to consider include:

1. The amount of time that the child took off from school;
2. Whether the time off was intended to be temporary for the purpose of saving money for school or for any other purpose aimed at improving the child’s life;
3. Whether the child required a period of time to devise a plan for their future;
4. Whether the child was exploring educational alternatives during the time in question;
5. Whether the child was in fact able to achieve any degree of independence from their parents during the time off school; and
6. The child’s living arrangements while they were independent, and in particular whether they were cohabiting in a common law relationship. (Radford, Ibid; MacLean, Supra.)

In general, the longer the time that elapses between the point when entitlement ended and when the moving party seeks to have it reinstated, the more onerous the burden will be on the moving party (Radford, Ibid.; Lawless, Supra.).

I turn to the question of whether a revived entitlement commences as of the date of enrolment in full-time studies or the date when the studies actually begin. In my view, it is open to the court to determine that eligibility for support resumes as of the date of enrolment, provided that the following conditions are met:

1. The child was diligent and timely in planning and applying for the further educational programming, and they became enrolled in the program within a reasonable time after their initial program ended;
2. The child was ready and willing to commence the subsequent program at the time of enrolment, and did everything within their control to resume their studies as soon as possible after the completion of the first program (Vohra, Supra.);
3. The child actually began attending the subsequent program at the earliest possible time that the program was scheduled to begin following the completion of the first program;
4. The child remained dependent on their parent and had not withdrawn from parental control at the time of enrolment; and
5. The subsequent program was part of a reasonable educational plan, and the child is used the period from the time of enrolment until the commencement of classes to further the implementation of the plan in a meaningful way.

If these criteria are satisfied, the temporary break in the child’s studies is relevant not to the threshold issue of eligibility for support, but rather to the appropriate approach for the support analysis under section 3(2) of the Guidelinesand the extent to which the child should be required to contribute to their own support.”

Aubert v. Cipriani, 2015 ONSC 6103 at 28-31

“In preparing reasons in custody cases, a trial judge is expected to consider each of these factors in light of the evidence adduced at trial; however, this is not to say that he or she is obligated to discuss every piece of evidence in detail, or at all, when explaining his or her reasons for awarding custody to one person over another.  This would indeed be an unreasonable requirement at the end of a 26-day trial.  Because of this, trial judges might sometimes appear to stress one factor over another and, in fact, it may be said that this is inevitable in custody cases which are heavily dependant on the particular factual circumstances at issue.  This situation does not open the door to a redetermination of the facts by the Court of Appeal.

…

As I have stated, the Court of Appeal was incorrect to imply that Hickey, supra, and the narrow scope of appellate review it advocates are not applicable to custodial determinations where the best interests of the child come into play.  Its reasoning cannot be accepted.  First, finality is not merely a social interest; rather, it is particularly important for the parties and children involved in custodial disputes.  A child should not be unsure of his or her home for four years, as in this case.  Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge’s decision.  Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts.  Custody and access decisions are inherently exercises in discretion.  Case-by-case consideration of the unique circumstances of each child is the hallmark of the process.  This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child.

…

As indicated in both Gordonand Hickey, the approach to appellate review requires an indication of a material error.  If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of the factors.  In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirected himself with respect to relevant evidence.  This being said, I repeat that omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial.  As stated in Van Mol (Guardian ad Litem of) v. Ashmore(1999), 1999 BCCA 6 (CanLII), 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion.  Without this reasoned belief, the appellate court cannot reconsider the evidence.”

Van de Perre v. Edwards, [2001] 2 SCR 1014, 2001 SCC 60 (CanLII) at 10, 13 & 15

“In some cases, there are complicating factors that must be considered before a court applies the SSAG wholesale. Complicating factors that courts ought to consider include variations based on the post-separation income increase of the payor, or situations with second families. In such cases, the court must conduct an analysis of the facts of the specific case to assess whether the SSAG ranges are appropriate.”

Gray v. Gray, 2014 ONCA 659 at 45

“Whether or not to grant an adjournment is a matter for judicial discretion. The scope for appellate review is limited to whether the discretion is exercised judicially on proper principles, after considering all relevant factors: Khimji v. Dhanani, [2004] 69 O.R. (3d) 790 (C.A.), at para. 20, per Laskin J.A. in dissent, but not on this point.”

Estrada v. Estrada, 2016 ONCA 697 at 2

“In Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, the Supreme Court of Canada indicated that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong.”

Vynnyk v. Baisa, 2008 ONCA 657 (CanLII) at 4

September 18 – Varying Support Orders

“The test for varying a support order was established by the Supreme Court of Canada in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670.[9]  A variation motion is not to be treated as though it were an appeal of the original order.  It is to be granted only if there is a material change in circumstances, that is,

[A] change, such that, if known at the time, would likely have resulted in different terms.  The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.”

Bemrose v. Fetter,2007 ONCA 637 (CanLII) at 67

“In sum, it is by no means certain that permitting civil actions against the custodial parents can be said to be in the best interests of the child, whether this be by creating a tort or recognizing a fiduciary relationship arising out of a court order. Resort even to fines and imprisonment, which is permitted by the Act, has been described as not “entirely appropriate”; see James G. McLeod, “Annotation” to O’Byrne v. Koresec(1986), 1986 CanLII 1315 (BC SC), 2 R.F.L. (3d) 104, at p. 105. That is because these may encroach on the resources of the custodial parent and because the child may suffer from the knowledge that one parent has taken such drastic action against the other. This applies, and in some respects with greater force to a legal action. Damages can impose a far greater financial burden than the fine of up to $1,000 which may be imposed under the Act (s. 39(1)). Furthermore, though the imprisonment of one parent at the behest of the other may be damaging to the child, litigation by one against the other over a protracted period may well be even more damaging.

 …For these reasons, I cannot accept that a breach of the statutorily authorized order in the present case gives rise to a fiduciary relationship on which a cause of action can be grounded.”

Frame v. Smith, [1987] 2 SCR 99, 1987 CanLII 74 (SCC) at 20-21

“Aproper construction of s. 4 requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced with those of fairness, flexibility and recognition of the actual “condition, means, needs and other circumstances of the children” on the other.  Furthermore, this balancing must take into account the ordinary meaning of the word “inappropriate”, as well as its use elsewhere in the statute.  In my opinion, the plain language of s. 4 is consistent with such an interpretation.  Accordingly, the word “inappropriate” in this section must be broadly defined to mean “unsuitable” rather than merely “inadequate”.  Courts thus have the discretion to both increase and reduce the amount of child support prescribed by the strict application of the Guidelines in cases where the paying parent has an annual income exceeding $150,000.  I would note that the respondent did not take issue with this interpretation in either her written or oral submissions.

I add one final comment.  As noted above, Abella J.A. was concerned with the differential treatment of children.  In my respectful opinion, a broad interpretation of the word “inappropriate” in s. 4 does not deny children of high income parents any of the intended benefits of the Guidelines.  The plain wording of s. 4 (b)(i) dictates that these children can predictably and consistently expect to receive, at a minimum, the Table amount for the first $150,000 of their parents’ income.  They can further expect that a fair additional amount will be awarded for that portion of income which exceeds $150,000.  Indeed, even this latter figure lends itself to a degree of predictability and consistency in that the closer the paying parent’s income is to the $150,000 threshold, the more likely it is that the Table amount will be awarded.  In my opinion, child support undeniably involves some form of wealth transfer to the children and will often produce an indirect benefit to the custodial parent.  However, even though the Guidelines have their own stated objectives, they have not displaced the Divorce Act, which clearly dictates that maintenance of the children, rather than household equalization or spousal support, is the objective of child support payments.  Section 26.1(2) of the Act states that “[t]he guidelines shall be based 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” (emphasis added).  While standard of living may be a consideration in assessing need, at a certain point, support payments will meet even a wealthy child’s reasonable needs.  In some cases, courts may conclude that the applicable Guideline figure is so in excess of the children’s reasonable needs that it must be considered to be a functional wealth transfer to a parent or de facto spousal support.  I wholly agree with the sentiment of Abella J.A. that courts should not be too quick to find that the Guideline figures enter the realm of wealth transfers or spousal support.  But courts cannot ignore the reasonable needs of the children in the particular context of the case as this is a factor Parliament chose to expressly include in s. 4(b)(ii) of the Guidelines.  Need, therefore, is but one of the factors courts must consider in assessing whether Table amounts are inappropriate under s. 4.  In order to recognize that the objective of child support is the maintenance of children, as well as to implement the fairness and flexibility components of the Guidelines’ objectives, courts must therefore have the discretion to remedy situations where Table amounts are so in excess of the children’s reasonable needs so as no longer to qualify as child support.  This is only possible if the word “inappropriate” in s. 4 is interpreted to mean “unsuitable” rather than merely “inadequate”.

2. Establishing Inappropriateness

When child support is calculated under s. 4(b), the express wording of s. 4(b)(i) does not permit deviation from the Guideline figures for the first $150,000 of the paying parent’s income.  Of course, the application of other sections of the Guidelines, such as the s. 10 undue hardship provisions and the s. 7 special expense provisions, may subsequently permit deviation from this figure.  For that portion of the paying parent’s income over $150,000, the strict Guidelines amount is immediately open to review; under s. 4 (b)(ii) any amount attributable to income above the $150,000 threshold can be reduced or increased by a court if it is of the opinion that the amount is inappropriate having regard to the condition, means, needs and other circumstances of the children, and the financial abilities of the spouses.  Nevertheless, based on the ordinary meaning of the provision, its context in the overall child support scheme, and the purposes of the Guidelines, I find that in all cases Parliament intended that there be a presumption in favour of the Table amounts.  I agree with Abella J.A. that the words “Presumptive Rule” found in the marginal note beside s. 3 of the Guidelines are relevant in this regard.  Accordingly, the Guideline figures can only be increased or reduced under s. 4 if the party seeking such a deviation has rebutted the presumption that the applicable Table amount is appropriate.  Counsel for the appellant conceded this point in oral argument.

The recognition of a presumption in favour of the Guideline figures does not compel a party seeking a deviation from this amount to testify or call evidence.  No unfavourable conclusions should be drawn from this decision.  Indeed, in some cases, such a party may not be able to provide relevant evidence.  Parties seeking deviations from the Table amounts may simply choose to question the evidence of the opposing party.  Whatever tactics are used, the evidence in its entirety must be sufficient to raise a concern that the applicable Table amount is inappropriate. To this end,  I agree with Lysyk J. of the British Columbia Supreme Court in Shiels v. Shiels, 1997 CanLII 767 (BC SC), [1997] B.C.J. No. 1924 (QL), at para. 27, that there must be “clear and compelling evidence” for departing from the Guideline figures.

While there must be an “articulable reason” for displacing the Guideline figures (see, for example, Plester v. Plester(1998), 1998 CanLII 6657 (BC SC), 56 B.C.L.R. (3d) 352 (S.C.), at para. 153), relevant factors will, of course, differ from case to case.  I note, however, my agreement with MacKenzie J. in Plester,supra, as well as Cameron J.A. in Dergousoff,supra, that the factors relevant to determining appropriateness which Parliament expressly listed in s. 4(b)(ii), that is, the condition, means, needs and other circumstances of the children, and the financial abilities of both spouses, are likewise relevant to the initial determination of inappropriateness.  Only after examining all of the circumstances of the case, including the factors expressly listed in s. 4(b)(ii), should courts find Table amounts to be inappropriate and craft more suitable child support awards.

The task of determining whether Guideline figures are inappropriate under s. 4 must be undertaken by courts armed with all of the necessary information.  Given that, as I explained above, children’s needs are one of the factors to be considered in assessing appropriateness under s. 4, child expense budgets which provide some evidence, albeit imperfect, of the children’s needs will often be required in contested cases where the paying parent earns more than $150,000 per annum.  This is consistent with s. 21(4) of the Guidelines, which requires custodial parents to provide certain financial information within a specified time after learning that the paying parent’s annual income exceeds $150,000.  As with the mandatory s. 21(4) financial disclosure, the special circumstances of high income parents may also dictate that custodial parents provide child expense budgets.  However, unlike the forms of financial disclosure expressly required under s. 21(4), Parliament did not choose to create a blanket rule requiring custodial parents to produce child expense budgets in all cases where s. 4 of the Guidelines is invoked.  I would therefore leave it to the discretion and experience of trial judges to determine on a case-by-case basis whether such budgets will be required.  Indeed, in cases where the paying parent’s income does not greatly exceed the $150,000 threshold, the trial judge may conclude that the added cost and delay of requiring a budget cannot be justified.”

Francis v. Baker, [1999] 3 SCR 250, 1999 CanLII 659 (SCC) at 40-45

“Rule 24(10) of the Family Law Rulesprovides that the judge who deals with a step in a case shall decide who, if anyone, is entitled to costs. If a party who has served an offer to settle the case as a whole wishes that fact taken into consideration in relation to a particular step, it is incumbent on that party to raise that issue with the judge who deals with that step. In this case, various steps were taken (e.g. motions, conferences) in relation to which either there was an endorsement that there be no order as to costs or the issue of costs was not addressed. In the absence of a specific order for costs in favour of the respondent, the trial judge should have disallowed costs claimed by the respondent in relation to such steps.”

Islam v. Rahman, 2007 ONCA 622 at 2