Month: July 2018

“First, I do not read D.B.S.as establishing any such “deemed blameworthiness at law” principle. The Supreme Court of Canada made clear that blameworthy conduct on the part of a payor spouse is an important factor in the retroactive support analysis, that what is “blameworthy” conduct is to be considered in an expansive fashion, and that a payor parent who knowingly diminishes his or her child support (including a failure to make reasonable upward adjustments in support where warranted) should not be allowed to profit from such conduct: paras. 105-107. However, a failure to increase support automatically does not necessarily amount to blameworthy conduct, which requires some form of conscious choice to ignore parental support obligations: paras. 107-108.

Whether conduct is “blameworthy” is a question of fact or at least of mixed fact and law. It is a subjective question, informed by certain objective indicators: D.B.S., at para. 108. Here, the trial judge made no finding that the respondent had engaged in any blameworthy conduct. Indeed, he found that the respondent had “acted reasonably in his efforts to support his children” and had “made no attempt to defeat [his] obligations to look after the family”. These findings are not consistent with blameworthy conduct and are entitled to deference. Even accepting that the respondent failed to fulfill his obligations by not being more alert to increasing his support payment commensurate with his increasing income, there were other factors in play which the trial judge took into account, as outlined above. In addition, the residential situation respecting the children was somewhat fluid during these periods.”

Rosenberg v. Gold, 2016 ONCA 565 (CanLII) at 68-69

“The purpose of spousal support in cases such as this is to relieve the economic hardship suffered by reason of the marriage or its breakdown.  There is no reason per sethat spousal support cannot continue past the date of retirement of the pension-holding spouse. However, several factors must be considered in making that decision.  On retirement, the pension-holding spouse may apply to vary the support order if his ability to paysupport is compromised (see Linton, supra, at p. 31, and Rivers, supra, at para. 17).  The decision of whether to vary support depends on whether the applicant can demonstrate that there has been a material change in circumstances pursuant to s. 37(2)of theFamily Law Act.

The payee spouse’s need and the payor spouse’s ability to pay are always factors which a court considers when determining spousal support (see s. 33(9)of the Family Law Act).  Another issue is the extent, if any, of “double recovery”.

How is double recovery fairlyavoided?  (See Shadbolt, supra, perCzutrin J., at para. 46.)  It is generally unfair to allow the payee spouse to reap the benefit of the pension both as an asset and then again as a source of income.  This is particularly true where the payee spouse receives capital assets which she then retains to grow her estate.  The comments of Walker, supra, at p. 233, bear echoing:

It is well-recognized that a borrower should not be compelled to continue monthly loan payments to the lender if the borrower has previously paid the full amount owing.  “Double dipping” is analogous to such a situation and is logically and mathematically indefensible.

To avoid double recovery, the court should, where practicable, focus on that portion of the payor’s income and assets that have not been part of the equalization or division of matrimonial assets when the payee spouse’s continuing need for support is shown (see Hutchison, supra, at para. 9).  In this appeal, that would include the portion of the pension that was earned following the date of separation and not included in the equalization of net family property.

Despite these general rules, double recovery cannot always be avoided.  In certain circumstances, a pension which has previously been equalized can also be viewed as a maintenance asset.  Double recovery may be permitted where the payor spouse has the ability to pay, where the payee spouse has made a reasonable effort to use the equalized assets in an income-producing way and, despite this, an economic hardship from the marriage or its breakdown persists.  Double recovery may also be permitted in spousal support orders/agreements based mainly on need as opposed to compensation, which is not the case in this appeal.”

Boston v. Boston, [2001] 2 SCR 413, 2001 SCC 43 (CanLII) at 61-65

“In determining need, the court is to be guided by the principle that the spouse receiving support is entitled to receive the support that would allow her to maintain the standard of living to which she was accustomed at the time cohabitation ceased. In addition, there is jurisprudence to the effect that a spouse is entitled to an increase in the standard of living such as would have occurred in the normal course of cohabitation: See MacDougall v. MacDougall(1973), 11 R.F.L. 266 (Ont. Sup. Ct.) per Henry J. See also Linton v. Linton(1990), 1 O.R. (3d) 1 (C.A.). At the same time the court must guard against redistributing the payor’s capital in the guise of support.”

Marinangeli v. Marinangeli, (2003), 66 O.R. (3d) 40 (C.A.) at 74

“In accordance with R. v. Guerin, [1984] 2 S.C.R. 335 at paras. 98-99, the limitation period did not start to run until the respondent “discovers the fraud, or until the time when, with reasonable diligence, she ought to have discovered it.”

Anderson v. McWatt, 2016 ONCA 553 at 9

“In his reasons, the motion judge correctly set out the criteria relevant to a finding of contempt of court.  As set out by this court in Prescott Russell Services for Children and Adults v. G.(N.) (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (Ont. C.A.):

A three-prong test is required.  First, the order that was breached must state clearly and equivocally what should and should not be done.  Secondly, the party who disobeys the order must do so deliberately and wilfully.  Thirdly, the evidence must show contempt beyond a reasonable doubt.”

Davydov v. Kondrasheva, 2012 ONCA 488 (CanLII) at 9

“Fresh evidence in child protection matters is contemplated by the Child and Family Services Act, R.S.O. 1990, c. C.11, s. 69(6). The test for admission is set out in Catholic Children’s Aid Society of Metropolitan Toronto v. C. M., 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165 at 190:

(a)  could the evidence have been previously adduced;

(b)   is the evidence highly relevant;

(c)   is the evidence potentially decisive to a best interest determination; and

(d)  is the evidence credible.”

K.F. v. Family and Children’s Services of the Waterloo Region, 2017 ONCA 573 (CanLII) at 4

“A settlement agreement is a contract. Thus, it is subject to the general law of contract regarding offer and acceptance. For a concluded contract to exist, the court must find that the parties: (1) had a mutual intention to create a legally binding contract; and (2) reached agreement on all of the essential terms of the settlement: Bawitko Investments Ltd. v. Kernels Popcorn Ltd., 1991 CanLII 2734 (ON CA), [1991] O.J. No. 495, 79 D.L.R. (4th) 97 (C.A.), at pp. 103-04 D.L.R.

…

A determination as to whether a concluded agreement exists does not depend on an inquiry into the actual state of mind of one of the parties or on the parole evidence of one party’s subjective intention. See Lindsey v. Heron & Co., [1921] O.J. No. 75, 64 D.L.R. 92 (S.C. (App. Div.)). Where, as here, the agreement is in writing, it is to be measured by an objective reading of the language chosen by the parties to reflect their agreement. As was stated by Middleton J.A. in Lindseyat pp. 98-99 D.L.R., quoting Corpus Juris, vol. 13 at 265:

The apparent mutual assent of the parties essential to the formation of a contract, must be gathered from the language employed by them, and the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. It judges his intention by his outward expressions and excludes all questions in regard to his unexpressed intention. If his words or acts, judged by a reasonable standard, manifest an intention to agree in regard to the matter in question, that agreement is established, and it is immaterial what may be the real but unexpressed state of his mind on the subject.”:

Olivieri v. Sherman, 2007 ONCA 491 (CanLII) at 41 & 44

“In my view, the refusal to dismiss or stay the action based on lack of jurisdiction was a final order. See Manos Foods International Inc. v. Coca-Cola Ltd., 1999 CanLII 3022 (ON CA), [1999] O.J. No. 3623 (C.A.), and Abbott et al. v. Collins et al.(2002), 2002 CanLII 41457 (ON CA), 62 O.R. (3d) 99 (C.A.). Where, as here, the effect of the order is that the action is going to proceed in the Superior Court, the consequence is that the defendant is precluded from continuing to dispute the court’s jurisdiction over the subject matter of the action. The order therefore is final on the jurisdiction question.”

Hopkins v. Kay, 2014 ONCA 514 at 9