“The appellant failed to make out a proper foundation for the bias allegation. Inevitably, in ongoing proceedings between parties that are heard by the same judge, comments are necessarily going to be made by the judge disposing of a particular step in the proceeding that a party may not like. That reality does not establish bias on behalf of the judge concerned. An informed person, viewing the matter realistically and practically, would not conclude that unfavourable comments of the type involved here would amount to a showing of bias by the presiding judge: Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting); Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21.”
Category: Uncategorized
June 22, 2023 – Section 16.93 of the Divorce Act: “Agreement” in Relocation Cases
“The Supreme Court of Canada recently wrote in Barendregt v. Grebliunas, 2022 SCC 22 (CanLII), [2021] S.C.J. No. 101, that its decision in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 has, for over 25 years, “been the governing authority for mobility applications.”
In Gordon, the Supreme Court “set out a two-stage inquiry for determining whether to vary a parenting order under the Divorce Act and permit a custodial parent to relocate with the child: first, the party seeking a variation must show a material change in the child’s circumstances; second, the judge must determine what order reflects the child’s best interests in the new circumstances.” (Barendregt, para. 106)
The Supreme Court further wrote in Barendregt that when mobility issues are raised at first instance, as in this case, “[w]ithout a pre-existing judicial determination, a parent’s desire to relocate is simply part of the factual matrix in the assessment of what parenting arrangement is in the best interests of the child.”
As the Supreme Court also noted in Barendregt, since the decision in Gordon, both the Divorce Act and relevant legislation in several provinces had been amended to provide a statutory regime governing relocation applications.
That is the case in Ontario, where the statutory provisions concerning relocation contained in the Children’s Law Reform Act are, for all intents and purposes, identical to those set out in the Divorce Act, with the exception being that the Children’s Law Reform Act contains a provision allowing the service of a notice objecting to a proposed relocation.
Maria’s application seeks relief under both the Divorce Act and the Children’s Law Reform Act.
Neither the requirement to give notice of an intent to relocate nor the ability to object to the proposed relocation are in issue in this case. Accordingly, the provisions that are in the Divorce Act shall be those to which I refer in the balance of this endorsement.
Legislation
Section 16.9 of the Divorce Act provides:
Relocation
16.9 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.
…
16.91 (1) A person who has given notice under section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if
(a) the relocation is authorized by a court; or
…
16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.
Section 16 of the Divorce Act provides:
Best interests of child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.
The effect of s. 16.92(1) is that, in deciding whether to authorize C.’s relocation with Maria, I must consider both the relevant statutory factors pertaining to C.’s best interests, as set out in ss. 16(3), (4) and (6) of the Divorce Act, as well as the factors related to the proposed relocation set out in s. 16.92(1) thereof.
Onus
Before doing so, however, I must consider the issue of onus in this case, as it is specifically addressed in s. 16.93 of the Divorce Act, which provides:
16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.
(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.
The parties disagree on the issue of onus.
It is clear that there is no order or arbitral award in place at this time. So, the question becomes, is there an agreement to which one can look for guidance on which subsection of s.16.93 applies.
It is Maria’s position that the parties are governed by s.16.93(2) because they are substantially complying with an agreement which provides that C. spends the vast majority of her time in her care. She is the party who intends to relocate. Accordingly, Maria submits that under s.16.93(2), Jeffrey, as the party opposing the relocation, has the burden of proving that it would not be in the best interests of C.
Maria’s counsel submits that there is an agreement that has C. substantially in her care because the parties have incrementally increased Jeffrey’s parenting time with C. since the separation, which left C. primarily in Maria’s care. In Maria’s submission, each incremental increase in Jeffrey’s parenting time is the result of an agreement, the underlying core of which has C. in Maria’s primary care.
Jeffrey takes the position that s. 16.93(1) applies. He submits that Maria bears the onus of establishing that the relocation would be in the best interests of C. since Maria is the proponent of the relocation.
Jeffrey’s position is that he has been trying to secure a 50/50 parenting agreement since virtually the moment of the parties’ separation, only to be met by either express or passive resistance by Maria to his proposals. As he sees it, he has been compelled, reluctantly, to accept the incremental increases which have been doled out to him.
Jeffrey’s submission in favour of relying on s. 16.93(1), if one is to find an “agreement” in existence, is that the agreement to be relied upon is that which underlay the status quo which existed before the parties separated. That status quo had C. residing with both parents, with each having a hand in her care. As parents each having equal parenting rights with respect to their child, it is Jeffrey’s position that any tacit agreement arising from that status quo contemplated C. spending “substantially equal time in the care of each” of him and Maria, as he has also claimed in his evidence.
Counsel cited, in support of this submission, the decision in Balke v. O’Connor, [2017] O.J. No. 2500 where Justice W.D. Newton wrote, at para. 14, quoting the decision in Batsinda v. Batsinda, 2013 ONSC 7869:
[28]… In my view…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.
Were the debate to end there, there is authority for recognizing that the situation which exists at the time that the court is faced with the question of whether there is an agreement in place for the purposes of s. 16.93 and, if so, in whose favour does it operate, is that which applies when answering both questions and that which governs with respect to onus.
Justice L. Ricchetti addressed this issue in Tariq v. Khan, [2022] O.J. No. 827, writing:
71 The Father submits that the onus in s. 16.93(2) does not apply in this case. The Father submits that the section only applies where there is a court order, arbitral award or a written agreement.
72 I disagree.
73 Had the legislators wanted to limit the application of the subsection to situations where there existed “written agreements” on the primary care (or vast majority) of C.’s care, they could have easily done so. There is no limitation or constraints as to what type of “agreements” are caught by this subsection.
74 It makes no sense that, where there has been a de facto agreement that a child spends the vast majority of their parenting time in the care of one parent, even if existing for years, that parent would not benefit from the reverse onus in this subsection.
75 In this case, there clearly was an “agreement” for the current “care time” by the parents. It is also clear that the Mother has to date had de facto decision making for Zahida. More importantly, there is no agreement on where Zahida was to reside.
76 In my view, the onus provision in the Divorce Act applies.”
June 21, 2023 – Openness Orders
“Pursuant to s. 194(4) of the CFSA, an openness order may be made by a court if the court is satisfied that:
(a) the openness order is in the best interests of the child;
(b) the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child; and
(c) the following entities and persons have consented to the order:
(i) the Society,
(ii) the person who will be permitted to communicate with or have a relationship with the child if the order is made,
(iii) the person with whom the Society has placed or plans to place the child for adoption, and
(iv) the child if they are 12 or older.
The CFSA recognizes that an openness agreement may be reached by adoptive parents, before or after an adoption, regarding children and sets out the parameters for any such agreement to include the following:
a) an openness agreement may be made by an adoptive parent of a child and, in this case, a birth relative. s. 212 (1)
b) an openness agreement may be made at any time before or after an adoption order is made. s. 212 (2)
c) an openness agreement may include a process to resolve disputes arising under the agreement or with respect to matters associated with it. s. 212 (3)
d) where the views and wishes of the child can be reasonably ascertained, they shall be considered before an openness agreement is made. s. 212 (4)
In Native Child and Family Services of Toronto v. W. H. (K.)., 2007 ONCJ 169, the court made an order for Crown Wardship of a child and determined that there would be no order for access. The court noted in paragraph 57, footnote 7 the following:
[7] An openness order may be varied or terminated before an adoption upon application by the Society or the respective adoptive parents, and after an adoption, upon application by the Society, the adoptive parents, order, with leave of the court, by the person permitted to communicate with the child. See 145.2(1) and 153.1(1). The Act contains no provision for a court to enforce, vary or terminate the provisions of an openness agreement, although the agreement can provide provisions for alternative dispute resolution.
In J.A. v J.B., 2011 ONCJ 726, the birth parents had brought a motion for access, which was denied in child protection proceedings where their children were made Crown Wards without access after the children had been adopted. The court stated at paragraph 44:
[44] “Openness agreements are apparently more user-friendly for the birth parent. They may be entered into before or after adoption. However, the agreement is not ostensibly enforceable as a court order is enforceable”.
In Children’s Aid Society of Toronto v. D. D., 2018 ONSC 4743, the court stated at paragraph 27:
[27] There is a provision in the CFSA governing openness agreements (s. 153.6(1)), which are not court orders, but rather agreements which are voluntarily entered into by the parties: K.F. v. Children’s Aid Society of Ottawa 2018 ONSC 364 at paragraph 12. However, the birth mother has no right to apply to any court for an openness agreement after adoption, and the issue is not before the application judge.
The purpose of an openness agreement is to facilitate communication and to maintain existing relationships. An openness agreement is not a court order and is not enforceable as a court order. It is a voluntary agreement entered into by the adoptive parents with specifically designated individuals to ensure the connection between the children and, in this case, the maternal grandmother. The applicant had 30 days from August 23, 2017, to file an application for openness. She failed to do so. Her request to extend the timeline was denied by Justice Audet. The applicant did not appeal that decision. Now, more than four years after her initial request was denied, the applicant again seeks to extend the timelines.”
L.F. v. Children’s Aid Society of Ottawa, 2022 ONSC 3682 (CanLII) at 18-23
June 20, 2023 – Settlements Involve “Give & Take”
“Before I set out the provisions at issue, it is important to note that, like most settlements, there was considerable give and take in achieving the “eve of trial” settlement. The parties agreed on values, and equalization payment, a lump sum support payment, repayment of money from a joint bank account, transfer of property ownership and so forth.
Trying to set aside one paragraph of the Minutes of Settlement (and replacing it with another) would clearly upset the balance the parties (with the benefit of counsel) agreed upon. It would, in my view, result in the court revising, not interpreting nor enforcing, the Minutes of Settlement. In addition, to set aside one paragraph and replacing it with another entirely different paragraph is even more troubling legally where the parties have already complied with the other terms in the Minutes of Settlement.”
June 19, 2023 – Allegations of Judicial Bias
“An allegation of judicial bias should not be made lightly because, by definition, it challenges the integrity of the judge in relation to the core of the judicial function – to preside impartially over the case before the judge: see R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at paras. 31-32.”
June 16, 2023 – Temporary Variations of Final Parenting Orders
“The added complication: the father seeks a temporary variation of a final parenting order. This requires that the court conduct an even more stringent analysis:
a. In all instances, courts must exercise caution before changing an existing arrangement which children have become used to.
b. This is especially the case where the existing parenting arrangement has been determined by way of court order. The starting point is that court orders are presumed to be correct. Montgomery v. Montgomery1992 CanLII 8642 (ON CA); Gordon v. Gordon 2015 ONSC 4468 (SCJ); Oickle v. Beland 2012 ONCJ 778 (OCJ).
c. And the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. If the general rule is that we are reluctant to change temporaryorders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.
d. Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority to grant a temporary variation of a final order — in the appropriate circumstances. Stokes v. Stokes2014 ONSC 1311 (SCJ); Huliyappa v Menon 2012 ONSC 5668 (SCJ); Clements v Merriam 2012 ONCJ 700 (OCJ).
e. But the evidentiary basis to grant such a temporary variation must be compelling.
f. The court must start with the aforementioned two-part material change in circumstances analysis.
g. But for a temporary variation, the court must also assess whether the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests.
h. The onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child.
i. The court must be satisfied that the child’s best interests requirean immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours.
j. The court must be satisfied that the existing order has come to be demonstrably contraryto the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm.
k. Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.
l. And given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established.
m. On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril. After that, priority switches to rescuing and protecting the child. And the pace of correction is directly related to the magnitude of the child’s current exposure to harm.”
June 15, 2023 – Retroactive Spousal Support
“The Supreme Court of Canada tackled the issue of retroactive spousal support in Kerr v. Baranow, 2011 SCC 10 (CanLII), [2011] 1 S.C.R. 269 (S.C.C.). In that case, the court touched on the issue of the semantics around the word “retroactive,” and emphasized that the principles which the court established in D.B.S., Supra, were articulated in the context of claims for child support for periods predating the commencement of the legal proceedings. The court referred to the Ontario Court of Appeal decision in MacKinnon v. MacKinnon, 2005 CanLII 13191 (ON CA), 2005 CarswellOnt 1536 (C.A.), where the court held that the date of the initiation of court proceedings for spousal support is the usual commencement date for the support order, unless there is a reason for making the order commence on a different date.
With respect to retroactive spousal support claims, the court held that the four general considerations which it had articulated in D.B.S. are also relevant in deciding the suitability of a retroactive spousal support order. In D.B.S, the four factors that a court should consider before awarding retroactive child support include, the reason for the recipient parent’s delay in seeking spousal support, the conduct of the payor parent; the past and present circumstances of the child, including the child’s needs at the time the support should have been paid, and whether the retroactive award might entail hardship. However, it emphasized that retroactive spousal support cases must be analyzed within the framework of the unique legal principles and objectives that underlie the right to spousal support, which are very different from those which apply to child support. Specifically, it highlighted that the duty of both parents to support a child arises at birth, whereas there is no automatic entitlement to spousal support or obligation on the part of a spouse to look out for the other spouse’s legal interests. In addition, it noted that child support is the right of the child rather than that of one of the litigants, and that the SSAGs have simplified the calculation of a parent’s support obligation. Accordingly, the prejudice where retroactive relief is denied flows to the child rather than to the custodial parent. The court’s analysis indicates that because of these different principles and objectives, concerns about a spousal support claimant’s notice of the claim and delay in pursuing it, and about misconduct, will generally carry more weight in retroactive spousal support cases.
With respect to the concern of payor spouses in retroactive claim cases about the recipient’s delay in pursuing relief, the Supreme Court noted in Kerr v. Baranow, Supra, that there are two important underlying interests at stake. First, there is the payor’s interest in having certainty regarding their legal obligations. Second, there is a general interest in creating appropriate incentives for spousal support claimants to advance their claims promptly. In regard to the issue of conduct, the court clarified that the focus must be on “conduct broadly relevant to the support obligation, such as concealing assets or failing to make appropriate disclosure.” (Kerr v. Baranow, para. 212). Consideration of the circumstances of the spousal support claimant must focus on that spouse’s needs both at the time the spousal support should have been paid and at present.”
June 14, 2023 – Steps to Imputing Income
“The starting point is to consider income as reported in line 150 of the income tax return, pursuant to section 16. The purpose of this provision is for predictability and consistency and does not allow for consideration of lifestyle. This is the “presumptive income”. See: Bak v. Dobell, 2007 ONCA 304 (CanLII), [2007] O.J. No. 1489 (Ont. C.A.)
Section 17 allows for determination of income where such fluctuates year to year, rendering a section 16 consideration unfair. Here, the focus is on a pattern of income over the prior of three years. The analysis is not based on simply averaging incomes; rather, it allows for a departure from line 150. See: Decaen v. Decaen, 2013 ONCA 218; Mason v. Mason, 2016 ONCA 725; Punzo v. Punzo, 2016 ONCA 957; and Halliwell v. Halliwell, 2017 ONCA 349.
Imputing income under section 19 is based on fairness and where an adjustment is required to the presumptive income. See: Bak v. Dobell, supra.
The leading decision on imputing income is Drygali v. Pauli (2002), 29 RFL (5th) 593 (Ont. C.A.), where the support payor had enrolled as a full-time university student. Gillese, J.A. addressed the prior inconsistent applications of section 19(1)(a) and provided helpful direction for trial judges. The following summarized the significant matters:
(a) The trial judge must consider three questions:
(i) is the parent intentionally under-employed or unemployed?
(ii) if so, is such required by reasonable education needs [or the needs of the child]?
(iii) If not so required, what income is appropriate in the circumstances? (para. 23)
(b)“Intentionally” does not mean a deliberate course of conduct for the purpose of undermining a support obligation – there is no need to find such an intent, rather the reference is to a “voluntary” act to earn less than what the parent is capable of earning. (para.s 24-28).
(c) There is no requirement of bad faith (para.s 29-30).
(d)One of the objectives of the Child Support Guidelines is to establish a fair standard of support for the children to ensure they benefit from the financial means of the parents. (para. 31).
(e) Imputing income is one method to give effect to the joint and ongoing obligation of parents to support their children – to do so, a parent must earn what he or she is capable of earning. (para. 32).
(f) When imputing income, a court must consider what is reasonable in the circumstances – factors include age, education, experience, skills and health of a parent. (para. 45).
See, also: Lavie v. Lavie, 2018 ONCA 10.”
June 13, 2023 – Unreasonably Deducting Expenses From Income
“One of the Applicant’s arguments respecting imputation of income to the Respondent is that he has unreasonably deducted expenses from the income that he has generated from his rental property. It follows from the foregoing general comments that a party who claims that business expenses are being unreasonably deducted from income has the burden of proving that the expenses are unreasonable (Szitas v. Szitas, 2012 ONSC 1548 (CanLII), 2012 CarswellOnt 3501 (S.C.J.); Desormeaux v. Beauchamp, 2009 CarswellOnt 747 (S.C.J.); Bekkers v. Bekkers, 2008 CanLII 864 (ON SC), 2008 CarswellOnt 173 (S.C.J.); Joy v. Mullins, 2010 CarswellOnt 7477 (S.C.J.)). However, the parent who seeks to deduct expenses from their income for child support purposes must as part of their basic general disclosure obligation explain the reasons for the expenses and how they were calculated, and must provide documentary proof of significant expenses in an organized manner so that the court can make a proper determination as to the reasonableness of the expense from the standpoint of the child support calculation (Szitas; MacGillivray v. Ross, 2008 CarswellNS 631 (S.C.); R.(P.C.J.) v. R. (D.C.), 2003 CarswellBC 788 (C.A.); Manchester v. Zajac, 2011 CarswellOnt 13546 (S.C.J.); Williams v. Williams, 2011 CarswellOnt 6588 (S.C.J.); Meade v. Meade, 2002 CanLII 2806 (ON SC), 2002 CarswellOnt 2670 (S.C.J.); Wilcox v. Snow, 1999 NSCA 163 (C.A.) (CanLII); Izyuk v. Langley, 2015 ONSC 2409 (S.C.J.) (CanLII)). This is particularly important in situations where the expenses reported on the party’s income tax returns fluctuate from year to year (Armstrong v. Armstrong, 2010 CarswellBC 3252 (S.C.)). If the party seeking to deduct expenses from income fails to provide meaningful supporting documentation or other evidence in respect of those deductions, an adverse inference may be drawn by the court in making the income determination (Orser v. Grant, 2000 CarswellOnt 1354 (S.C.J.); Izyuk).
In order to impute expenses that have been deducted against income for tax purposes back into a parent’s income pursuant to section 19(1)(g) of the Guidelines, it is not necessary to establish that the party who claimed the deductions acted improperly or outside the norm for claiming expenses in the income tax context. Section 19(2) specifically provides that the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada). Rather, the issue is whether the full deduction of the expense results in a fair representation of the actual disposable income that should be available to the party for personal expenses and child support (Halliwell v. Halliwell, 2017 ONCA 349 (C.A.) (CanLII)). In determining whether expenses claimed by a party as against income are unreasonable, the court must balance the business necessity of the expense against the alternative of using those monies for the purposes of child support (Osmar v. Osmar, 2000 CanLII 22530 (ON SC), 2000 CarswellOnt 1928 (S.C.J.); Izyuk). In carrying out this analysis, the court must keep in mind the principle which the Supreme Court of Canada established in D.B.S. that payor parents should not be permitted to manipulate their financial affairs so as to prefer their own interests over those of their children.”
June 12, 2023 – Rule 2 = Procedural Freedom for Judges
“Applicant counsel argued that the court should require a motion to vary before helping the parties to resolve their disagreement as to whether the final order permits them to authorize another person to assist with pick-up and drop-offs required by the Access Schedule.
I do not agree. To require a further motion to vary in these circumstances, where the Court gave the parties notice and opportunity to be heard on this specific issue, would have been to create further process without purpose, causing further delay, cost and time to the parties and their children.
In my view, assisting the parties in this way is consistent with, if not required by, the primary objective identified in Rule 2(2) of Family Law Rules. The Ontario Court of Appeal in A.A. v. Z.G., 2020 ONCA 192 recently described “dealing with cases justly” to mean “ensuring that the procedure is fair to all parties, saving time and expense and dealing with the case in the way that is most appropriate to its importance and complexity”. In order to achieve fair and expeditious resolutions, Rule 2 “specifically grants judges some procedural freedom” (at para 24).
Such freedom, elsewhere referred to by the Ontario Court of Appeal as “great latitude”, enables a court, particularly in cases involving unrepresented litigants, to make such substantive orders, whether requested or not, as are needed to effect a just and fair result between the parties: Titova v Titov, 2012 ONCA 864 (at para 48); see also Rule 25(19)(c).”