Month: October 2018

“The only time that the worker commented on the mother’s parenting ability was in his reply affidavit and the way he did this was unacceptable to this court.  In response to the mother’s evidence that she parented positively, he attached three access observation notes to his affidavit where there were problems on visits.  Aside from the fact that the society should be providing direct affidavits from its workers about access observations at summary judgment motions (and as a result I attached little weight to this evidence), this was extremely unfair of the worker.  The society conceded in argument that access visits were going well, yet the worker “cherry-picked” three negative reports to buttress the society’s case.  Why did he not attach reports that showed the mother in a positive light?  I repeat the comments that I made in paragraphs [55]-[56] of Children’s Aid Society of Toronto v. B.H. and M.P., [2007] O.J. No. 2446 (Ont. C.J., 4 May 2007), where I said:

	[55]         This court has to make a major decision for these children and their families that will have a huge and permanent impact on their lives.  The society is a powerful institution and with such power comes great responsibility.  The goal of a state litigant is justice.  It is not about winning.  The society’s role in presenting a case to the court is not merely to present evidence that justifies its position, but to present allrelevant and probative evidence, including that not favourable to its position, to ensure that the best possible decision for children can be made.  It is important that society workers understand this.  Society counsel can only put forward the evidence that the workers provide to them.  It is important to educate the workers about their responsibility to provide a balanced perspective of the case to the court and not only provide information that justifies their position.  It is not good enough to say that it is the job of the parents’ lawyers to produce this evidence.  Parents’ counsel (if the parties even have counsel) rarely have the resources of the society and should not have to chase after this information.  Child protection trials are not, and should not, be a game.
	[56]         From a practical perspective, this made the evidence of the society workers less reliable.  How could I fully trust that they were providing me with the full context when they were giving me their evidence, when they chose to present their negative observations in such a disproportionate manner?  This did not mean that I rejected their evidence, but it did mean that I treated it with more caution.

These comments are applicable to every stage of a proceeding and I would think are even more pertinent when we are hearing a summary judgment motion and the worker is not subject to cross-examination.”

Catholic Children’s Aid Society of Toronto v. M.(A.), 2007 ONCJ 743 (CanLII) at 58

“The Supreme Court of Canada addressed the standard of review for appeals of support orders in Hickey v. Hickey,1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, 172 D.L.R. (4th) 577. As stated in that decision, at para. 11, 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.”

Selznick v. Selznick, 2012 ONCA 686 (CanLII) at 5

“On the authority of the Supreme Court of Canada’s decision in Derrickson v. Derrickson, 1986 CanLII 56 (SCC), [1986] 1 S.C.R. 285 and its progeny, neither this court nor the application judge in this case have authority to make any order concerning possession, ownership or disposition of property on a reserve that, like the property at issue here, is governed by the provisions of the Indian Act, S.C. c. I-5.

Accordingly, to the extent that paragraph 7 of the application judge’s order dated October 14, 2011 is intended to address ownership or possession of the former matrimonial home, this part of his order cannot stand.”

Syrette v. Syrette, 2012 ONCA 693 (CanLII) at 4-5

“Supervised access is not intended to be a long-term arrangement for a child.  It is beneficial for children who require gradual reintroduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated and a child is no longer in danger of physical or emotional harm.  See Najjardizaji v. Mehrjerdi, 2004 ONCJ 374(CanLII), 136 A.C.W.S. (3d) 493, [2004] O.J. No. 5472, 2004 Cars­well­Ont 5656 (Ont. C.J.).

The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position.  The greater the restriction sought, the more important it becomes to justify that restriction.  See Margaret A. v. John D., 2003 CanLII 52807 (ON CJ), 2003 CanLII 52807, 124 A.C.W.S. (3d) 524, [2003] O.J. No. 2946, 2003 Cars­well­Ont 2793 (Ont. C.J.).”

Burnett v. Ffrench, 2011 ONCJ 527 (CanLII) at 17-18

“The controversy in the case law surrounds whether, in the case of a payor who is a shareholder, director or officer of a corporation and where the court is of the opinion that the payor’s line 150 income does not fairly reflect all the money available to the payor for the payment of support, the court is restricted to including in a payor’s annual income pre-tax corporate income from onlythe most recent taxation year. Relying on Bear v. Thompson, a decision of the Saskatchewan Court of Appeal, the husband supports this position. I would adopt a different approach.

In Bear v. Thompson, the Saskatchewan Court of Appeal conducted an extensive review of the case law relating to the proper interpretation of ss. 17 and 18 of the Guidelines and also considered the interpretation of those provisions having regard to the modern rule of statutory interpretation.

The court concluded that s. 17 is a stand-alone provision directed at allowing the court to consider the payor’s line 150 income over the last three years and to determine an amount that is fair and reasonable in light of any pattern of, or fluctuation in such income during that period or receipt of a non-recurring amount. The court found that s. 17 does not permit including pre-tax corporate income as a source of funds in making this assessment. Further, while s. 18 permits considering corporate income over the last three years to determine the amount of any pre-tax corporate income that should be added to a payor’s line 150 income, it does not permit adding to line 150 income amounts of pre-tax corporate income that exceed the corporation’s income for the most recent taxation year.

I agree that the modern rule of statutory interpretation should be used to interpret the Guidelines.  Nonetheless, I would not adopt this restrictive interpretation of ss. 17 and 18. In my view, a review of the Guidelines as a whole compels a different conclusion.

In particular, as I read the Guidelines, s. 17 does not restrict a court to considering line 150 income over the last three years; rather a court may also consider amounts of pre-tax corporate income included in a spouse’s income under s. 18 for each of the last three years.

The purpose of ss. 15 to 20 is to arrive at a number that fairly and fully reflects the payor’s income.  The default is that this number will simply be determined using line 150 income.  Where, however, the court determines that this default determination would be unfair, the Guidelines permit an expanded view of income.

In my view, the scheme of these provisions is that s. 18 permits a court to take an annual snapshot of a spouse’s income – and include in it pre-tax corporate income from the most recent taxation year. If the corporation suffered a loss in the most recent taxation year, no amount of pre-tax corporate income may be included. Under s. 17 however, the court may determine an amount that is fair and reasonable having regard to the spouse’s income over the last three years in light of, among other things, any pattern of, or fluctuations in, income over the three-year period. And “income” for that purpose may include amounts of pre-tax corporate income added to line 150 income under s. 18 for each of those years.

As I see it, it would make little sense to permit consideration of a spouse’s income over the three-year period without permitting consideration of the spouse’s access to pre-tax corporate income in each year of the three-year period. This is particularly the case where, as here, the payor spouse now wholly owns the corporation (which was formerly owned by him and the wife). Otherwise, the exercise of considering a pattern of, or fluctuations in, income would be artificial.

Further, this interpretation, is consistent with the language of s. 17:

17. (1) If the court is of the opinion that the determination of a … spouse’s annual income under section 16 would not be the fairest determination of that income, the court mayhave regard to the … spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. [Emphasis added.]

Had it been the legislature’s intention to restrict the three-year review of the spouse’s income to line 150 income, the legislature could easily have said the court may have regard to the spouse’s annual income over the last three years as determined under s. 16. But instead of using that or similar language, s. 17 refers to the “spouse’s income over the last three years.” “Income” in this context is not restricted to the spouse’s annual income as determined under s. 16; it can fairly be read as meaning the payor’s annual income as defined under s. 15 – meaning the payor’s income as determined in accordance with ss. 16 to 20.

In addition, interpreting the sections in this way avoids any incentive to manipulate corporate income leading up to a trial or the inevitability of a variation in the event of an unusual year.

This approach is also consistent with the fundamental object of the Guidelines, which is to ensure fairness to both spouses, and to their children, in determining what amount of money is in fact reasonably available for the payment of support.”

Mason v. Mason, 2016 ONCA 725 at 154, 157-161, 163-168

“In the Supreme Court of Canada case of Schreyer, the husband made an assignment into bankruptcy without giving notice to the wife, who had an equalization claim under Manitoba family law legislation. He was also discharged without notice to her, thereby releasing him from her claim. However, the husband owned a farm, which was exempt from execution by creditors under s. 13 of Manitoba’s The Judgments Act, C.C.S.M. c. J10, and could not be disposed of by the trustee in bankruptcy for distribution to creditors.

Speaking for the court, at para. 32, LeBel J. stated:

In such circumstances, the appropriate remedy for a creditor like the appellant would be to apply to the bankruptcy judge under s. 69.4 BIA for leave to pursue a claim against the exempt property. Since this property is beyond the reach of the ordinary creditors, lifting the stay of proceedings cannot prejudice the estate assets available for distribution. In keeping with the wording of s. 69.4(b) BIA, this is why it would be “equitable on other grounds” to make such an order. This procedure would also accord with the policy objective of bankruptcy law of maximizing, under the BIA, returns to the family unit as a whole rather than focussing on the needs of the bankrupt: see, on this point, Hildebrand v. Hildebrand (1999), 13 C.B.R. (4th) 226 (Man. Master), at para. 16; and, generally, on Parliament’s concern for the support of families, Marzetti v. Marzetti, 1994 CanLII 50 (SCC), [1994] 2 S.C.R. 765 (S.C.C.), at pp. 800-01.

The appellant submits that LeBel J.’s statement of the law applies only to an equalization payment, and not to a custody costs award. The argument hinges on what she submits is a necessary link between a lift-stay order and a spouse’s ability, before bankruptcy, to obtain an order granting a proprietary interest in the other spouse’s property under s. 9(1) of Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”) when applying for an order for an equalization payment. Such a proprietary order is not available to enforce a costs award.

Sections 9(1)(b) and (d) of the FLA provide:

9 (1) In an application under section 7, the court may order,

…

(b) that security, including a charge on property, be given for the performance of an obligation imposed by the order;

…

(d) that, if appropriate to satisfy an obligation imposed by the order,

(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or

(ii) any property be partitioned or sold.

Section 5 of the FLA establishes entitlement to an equalization payment between spouses. Section 7 provides the mechanism to apply to court to determine any matter respecting the entitlement under s. 5.

In Schreyer, LeBel J., at para. 25, explained that the only way Ms. Schreyer’s equalization claim would not have been extinguished by Mr. Schreyer’s discharge from bankruptcy was by obtaining an order lifting the stay “so that she could seek a proprietary remedy under s. 17 [of The Family Property Act of Manitoba].” That section is to the same effect as s. 9(1) of the Ontario FLA. The appellant submits that the lift-stay remedy is therefore only applicable where the creditor spouse is then able to obtain a proprietary interest in exempt assets in pursuit of an equalization claim.

I do not accept this submission…”

Fioritto v. Wiggins, 2017 ONCA 765 at 18-24

“The statutory provisions governing appeals in family law proceedings are a source of much confusion. In Christodoulou v. Christodoulou, 2010 ONCA 93 (CanLII), 75 R.F.L. (6th) 266, MacPherson J.A. set out the appropriate interpretation of s. 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), noting the inconsistency and arbitrariness inherent in the current system of family law appeal routes. I echo MacPherson J.A.’s remarks at paras. 35 and 36 in saying that the current appeal routes are both confusing and inequitable. I add my voice to those encouraging legislative reform in this area.

As discussed in Christodoulou, s. 21.9.1 of the CJA together with s. 73 of the CLRA provide that the appeal of an order under Part III of the CLRA, excepting ss. 59 and 60, made at a Family Court branch of the Superior Court lies to the Divisional Court. The order under appeal in this case was made under s. 23 of the CLRA, which lies under Part III of that Act.

…

Under the CLRA, all regular child custody orders made under Part III of the CLRA at a Family Court branch location, with the explicit exception of those made under ss. 59 and 60, are appealed under s. 21.9.1 of the CJA. Therefore, an appeal from them lies to the Divisional Court.”

Marchildon v. Beitz, 2012 ONCA 668 (CanLII) at 4, 5 and 11

“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