Month: February 2019

“The appellant argues that his $201 monthly child support obligation should be reduced by the $200 CPP child benefit that arises out of the appellant’s CPP disability.

For several reasons, I agree with the courts that have considered and rejected the argument that the amount of the CPP child benefit should be credited against the child support otherwise owing.  See Wadden v. Wadden, 2000 BCSC 960 (CanLII), [2000] B.C.J. No. 1287 (S.C.); Huey v. Huey (1991), 39 R.F.L. (3d) 14 (Ont. Gen. Div.); Williams v. Williams (1995), 18 R.F.L. (4^th) 129 (Ont. Gen. Div.); Corkum v. Corkum (1997), 1998 CanLII 2691 (NS SC), 36 R.F.L. (4^th) 367 (N.S.S.C.); Griffiths v. Griffiths (1999), 1999 ABQB 193 (CanLII), 45 R.F.L. (4^th) 353 (Alta. Q.B.); Vickers v. Vickers (2001), 2001 NSCA 96 (CanLII), 201 D.L.R. (4^th) 65 (N.S.C.A.); Peterson v. Horan (2006), 2006 SKCA 61 (CanLII), 279 Sask. R. 94 (C.A.).

First, if Parliament had intended to provide an offset of the child benefit against support, it would have provided for that result either in the Federal Child Support Guidelines, S.O.R./97-175 (the Guidelines), or in the Canada Pension Plan, R.S.C. 1985, c. C-8 (the Act).  It did not do so.

Second, the benefit is not income of the appellant in the sense that he redirects it to his son simply as a matter of convenience.  Instead, the Act treats the benefit as that of the child, not that of the contributor. Paragraph 44(1)(e) of the Act specifically provides that “a disabled contributor’s child benefit shall be paid to each child of a disabled contributor…”.  As well, an application for the benefit is not made by the parent, but by the parent “on behalf of” the child.  This is confirmed by s. 75, which provides that the benefit is payable directly to the child, unless the child is a minor, in which case the benefit is paid to the custodial parent.  The appellant has no entitlement to the benefit, he has no control over its payment, it is not taxable in his hands, and it is not included in his income for the purpose of calculating his child support obligation.  Accordingly, it should not be used to reduce the appellant’s obligation to pay support for his child.

Third, had Parliament intended the benefit to satisfy all or part of a contributor’s child support obligation, it could have crafted a scheme that provided an increased benefit for a contributor with a dependent child, rather than a separate child benefit.  Had it done so, the quantum of child support would have been calculated on the appellant’s gross income.  This, however, was not the scheme devised by Parliament.  See Vickers, supra, at para. 12.

Fourth, the Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.) mandates that child support orders must be made in accordance with the Guidelines. Support is calculated on the taxpayer’s taxable income, which does not include the child benefit.  The Guidelines do not provide for a reduction of Table support by the amount of the CPP child benefit and do not factor a minor child’s means into consideration, except in certain specific circumstances, none of which was raised in this proceeding.  The trial judge knew that Andrew was approaching the age of majority when his means could become relevant. However, when considered in the context of Andrew’s needs, and the financial circumstances of his parents, his receipt of the CPP child benefit would not operate to reduce the appellant’s child support obligation.”

Sipos v. Sipos, 2007 ONCA 126 (CanLII) at 10-15

“Section 19 of the guidelines permits the court to impute income to the father if it finds that he is earning or capable of earning more income than he claims.

Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children.  In order to meet this obligation, the parties must earn what they are capable of earning.  If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731(Ont. CA).

In Duffy v. Duffy, 2009 NLCA 48 (CanLII), the court sets out the following principles:

a) The fundamental obligation of a parent to support his or her children takes precedence over the parent’s own interests and choices.

b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her own children.

c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.

d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances.

e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.

The Ontario Court of Appeal in Drygala set out the following three questions which should be answered by a court in considering a request to impute income:

1.   Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs?

3.   If not, what income is appropriately imputed?

The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed.  The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322 (CanLII), [2009] O.J. No. 1552. (Ont. C.A.).

The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning.  The court must look at whether the act is voluntary and reasonable.

Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, 2003 CanLII 3433 (ON CA), 2003 CanLII 3433 (Ont. C.A.), at paragraph 23. The trial judge must determine whether the educational needs claimed by the payor are reasonable. See: Drygala, supra, paragraph 39. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137 (Canlii) (CanLII); DePace v. Michienzi, 2000 CanLII 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.); Drygala, supra, paragraph 39.

The court in Drygala expands on what is required to determine if the educational needs of a payor are reasonable in paragraphs 40 and 41 as follows:

[40] But, s. 19 (1) (a) speaks not only to the reasonableness of the spouse’s educational needs. It also dictates that the trial judge determine what is required by virtue of those educational needs. The spouse has the burden of demonstrating that unemployment or under-employment is required by virtue of his or her reasonable educational needs. How many courses must be taken and when? How much time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands such that the spouse is excused from pursuing part-time work? Could the program be completed over a longer period with the spouse taking fewer courses so that the spouse could obtain part-time employment? If the rigours of the program preclude part-time employment during the regular academic school year, is summer employment reasonably expected? Can the spouse take co-operative courses as part of the program and earn some income in that way? These are the types of considerations that go into determining what level of under- employment is required by the reasonable educational needs of a spouse.

[41] The burden of proof is upon the spouse pursuing education as he or she is the person with access to the requisite information. The spouse is in the best position to know the particular requirements and demands of his or her educational program. He [page721] or she will have information about the hours of study necessary to fulfill such requirements, including the appropriate preparation time. He or she is in the best position to show whether part-time employment can be reasonably obtained in light of these educational requirements.

It is not reasonable for a payor to return to school and not pay support, unless it is justified by a sufficient increase in earning ability that will benefit the children (see my comments in Carter v. Spracklin, 2012 ONCJ 193 (CanLII), [2012] O.J. No. 1533 (OCJ)).

The third question in Drygala v. Pauli, supra, is: “If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed in the circumstances?” The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties’ relationship.  The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson, 2006 CanLII 26573 (ON CA), 2006 CanLII 26573 (Ont. C.A.).

The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See: Smith v. Pellegrini, 2008 CanLII 46927 (ON SC), [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, 2009 CanLII 25981 (ON SC), [2009] O.J. No. 2140, (Ont. S.C.).

A person’s lifestyle can provide the criteria for imputing income.  See: Aitken v. Aitken [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373 (CanLII).

Where a party receives regular gifts from his or her parent, the court may impute the amount of those gifts as income for support purposes:  See: Marrello v. Marrello, 2016 ONSC 835 (CanLII), citing Bak v. Dobell 2007 ONCA 304 (CanLII) at paragraph 75 and Korman v. Korman, 2015 ONCA 578 (CanLII), at paragraphs 47-51, 62-65 and 67.”

Ffrench v. Williams, 2016 ONCJ 105 (CanLII) at 35-47

“To allow a party who ignores his or her financial disclosure obligations to later satisfy the requirement and argue that the late disclosure constitutes a material change in circumstances would eviscerate the financial disclosure regime.”

Gray v. Rizzi, 2016 ONCA 152 at 34

“In the words of Lord Denning M.R. in Burgess v. Rawnsley, [1975] 3 All E.R. 142, [1975] Ch. 429 (Eng. C.A.), at p. 146 All E.R.: “Nowadays everyone starts with the judgment of Page Wood V-C in Williams v. Hensman“. This is likewise true of Canadian courts, which have long recognized the vice-chancellor’s statement as the starting point for assessing severance of a joint tenancy: see, e.g., Clark v. Clark (1890), 17 S.C.R. 376, [1890] S.C.J. No. 13, at p. 383 S.C.R. (Gwynne J., dissenting); Ginn v. Armstrong, 1969 CanLII 830 (BC SC), [1969] B.C.J. No. 400, 3 D.L.R. (3d) 285 (S.C.), at p. 286 D.L.R.; Walters and Walters (Re) (1977), 1977 CanLII 1835 (ON SC), 16 O.R. (2d) 702, [1977] O.J. No. 1731 (H.C.J.), at p. 705 O.R., affd (1978), 1978 CanLII 1691 (ON CA), 17 O.R (2d) 592n, [1978] O.J. No. 3214 (C.A.); Sorensen’s Estate v. Sorensen, 1977 CanLII 1648 (AB CA), [1977] A.J. No. 742, 90 D.L.R. (3d) 26 (C.A.), at p. 32 D.L.R.; Tompkins Estate v. Tompkins, 1993 CanLII 1119 (BC CA), [1993] B.C.J. No. 445, 99 D.L.R. (4th) 193 (C.A.), at pp. 196-99 D.L.R. [See Note 5 below]

The three modes of severance referred to in Williams v. Hensman have come to be known as the “three rules”: see Burgess, at pp. 152-53 All E.R.; Robichaud v. Watson (1983), 1983 CanLII 1701 (ON SC), 42 O.R. (2d) 38, [1983] O.J. No. 3046 (H.C.J.), at p. 44 O.R.; Bruce Ziff, Principles of Property Law, 5th ed. (Toronto: Carswell, 2010), at pp. 342 and 345. The three rules may be summarized as follows: [page252] Rule 1: unilaterally acting on one’s own share, such as selling or encumbering it; Rule 2: a mutual agreement between the co-owners to sever the joint tenancy; and Rule 3: any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.

The apposite rule in the present case is rule 3, or the course of dealing rule. As explained by Professor Ziff in Principles of Property Law, at p. 345, severance under this rule operates in equity. Rule 3 operates so as to prevent a party from asserting a right of survivorship where doing so would not do justice between the parties. In the words of Professor Ziff, at p. 345, “the best way to regard matters is to say that equity will intervene to estop the parties, because of their conduct, from attempting to assert a right of survivorship”. What is determinative under this rule is the expression of intention by the co-owners as evidenced by their conduct: see Robichaud, at p. 45 O.R.

Rule 3 governs cases where there is no explicit agreement between the co-owners to sever a joint tenancy. In contrast, rule 2 is engaged where a mutual agreement to sever is claimed to exist. This distinction between rule 2 and rule 3 is significant. What follows from this distinction is that the proof of intention contemplated by rule 3 does not require proof of an explicit intention, communicated by each owner to the other(s), to sever the joint tenancy. If such proof were required, then rule 3 would be rendered redundant because a communicated common intention would be tantamount to an agreement. Instead, the mutuality for the purposes of rule 3 is to be inferred from the course of dealing between the parties and does not require evidence of an agreement.”

Hansen Estate v. Hansen, 2012 ONCA 112 (CanLII) at 33-36

“In the Ontario Court of Appeal decision of El Feky v. Tohamy, 2010 ONCA 647 (CanLII), Rosenberg J.A. sets out the meaning of good faith at para. 34 as follows:

[34] A more appropriate explanation for the meaning of good faith in this context is found in the decision of Mendes da Costa U.F.C.J. in Hart v. Hart (1990), 27 R.F.L. (3d) 419 at p. 432:

Section 2(8)(b)enshrines in legislative form the concept of “good faith”. As is not infrequently the case, these words are not defined in the Act, and I do not believe that it would be either possible or useful to attempt to catalogue the possibilities that they embrace. However, I must attribute to these words their “plain meaning according to the understanding and practices of the times.”: Cash v. George Dundas Realty Ltd. (1973), 1973 CanLII 40 (ON CA), 1 O.R. (2d) 241, 248 (C.A.). I believe, to establish “good faith”, it must be shown that the moving party acted honestly and with no ulterior motive. It does not seem to me that the Legislature, anticipating the general newsworthy nature of the family property provisions of the Act, intended that a mere failure to make enquiries should necessarily negate “good faith”, provided that the absence of enquiry does not constitute wilful blindness or does not otherwise, in all the circumstances, fall below community expectations. As I have stated, my assessment of the evidence is that the wife was ignorant of her rights under the Act, and I believe that her state of mind was one of blameless ignorance. I am satisfied that the delay in issue was delay incurred in good faith within the meaning of section 2(8)(b).”

Freire v. Freire, 2017 ONSC 1188 (CanLII) at 54

“In the absence of any evidence to the contrary, it must be assumed that the Society is properly exercising its statutory duty and acting in the best interest of the child.  Time is an important consideration in the Child and Family Services Act, R.S.O. 1990, c. C.11 and a child is not to be kept in limbo while a parent having difficulties attempts to straighten out her life.”

Children’s Aid Society of the Regional Municipality of Waterloo v. V.L., 2007 ONCA 113 (CanLII) at 14

“In my view, it flows from the observations and principles set out in Miglin that a duty to make full and honest disclosure of all relevant financial information is required to protect the integrity of the result of negotiations undertaken in these uniquely vulnerable circumstances.  The deliberate failure to make such disclosure may render the agreement vulnerable to judicial intervention where the result is a negotiated settlement that is substantially at variance from the objectives of the governing legislation.

Such a duty in matrimonial negotiations anchors the ability of separating spouses to genuinely decide for themselves what constitutes an acceptable bargain.  It also helps protect the possibility of finality in agreements.  An agreement based on full and honest disclosure is an agreement that, prima facie, is based on the informed consent of both parties.  It is, as a result, an agreement that courts are more likely to respect.  Where, on the other hand, an agreement is based on misinformation, it cannot be said to be a true bargain which is entitled to judicial deference.

Whether a court will, in fact, intervene will clearly depend on the circumstances of each case, including the extent of the defective disclosure and the degree to which it is found to have been deliberately generated.  It will also depend on the extent to which the resulting negotiated terms are at variance from the goals of the relevant legislation.  As Miglin confirmed, the more an agreement complies with the statutory objectives, the less the risk that it will be interfered with.  Imposing a duty on separating spouses to provide full and honest disclosure of all assets, therefore, helps ensure that each spouse is able to assess the extent to which his or her bargain is consistent with the equitable goals in modern matrimonial legislation, as well as the extent to which he or she may be genuinely prepared to deviate from them.

In other words, the best way to protect the finality of any negotiated agreement in family law is to ensure both its procedural and substantive integrity in accordance with the relevant legislative scheme.”

Rick v. Brandsema, [2009] 1 SCR, 2009 SCC 10 (CanLII) at 47-50

“The appellant argues that the combined operation of ss. 10.1(3) and (5) precludes a lump-sum division when a pension is in pay. Some cases support this interpretation (see, for example, Jovanovic v. Jovanovic, 2013 ONSC 7132 (CanLII), [2014] W.D.F.L. 461, at para. 40). However, I would not read these provisions so restrictively, especially without clear statutory language that prohibits a lump-sum transfer when a pension is in pay.

Subsection 10.1(3) creates a general power to order an immediate lump-sum division. The availability of this permissive option is guided by the non-exhaustive criteria in s. (4). Subsection (5) addresses pensions in pay. In these circumstances, a judge may make an order for the division of pension payments, “but not for any other division of the spouse’s interest in the plan” (emphasis added). I do not read this section as prohibiting a lump-sum transfer for a pension in pay. Instead, s. 10.1(5) simply provides courts with another option – division of payments. However, just like s. 10.1(3), s. 10.1(5) only allows a judge to order one form of division – lump-sum or pension payments – not both, and not any other form of division of the interest.

The combined operation of ss. 10.1(3) and (5) leads to the following options. Before a pension is in pay, only a lump-sum division is available. This makes sense because there is no monthly payment stream to divide. Once a pension is in pay, a judge may choose between the two options, depending on all of the circumstances of the case. Whether or not a pension is in pay, the factors set out in s. 10.1(4) provide guidance.

The appellant’s restrictive interpretation of s. 10.1 potentially compromises an important goal of the FLA – to achieve a division of assets that is fair to both parties. In Best v. Best, 1999 CanLII 700 (SCC), [1999] 2 S.C.R. 868, Major J. said, at para. 109: “The choice of a method for settlement of the equalization obligation is highly contextual and fact-based.  A payment method that is preferable in one case might be grossly unjust in another.” The interpretation favoured by the appellant would undermine this approach by precluding resort to an option (a lump-sum payment) that may be critical in achievi15ng a fair and just division of property.”

Fawcett v. Fawcett, 2018 ONCA 150 (CanLII) at 30-33

“The Family Law Rules include a number of provisions aimed at addressing situations such as the one which has developed in this case, where one of the parties chooses not to comply with court orders and/or not to participate responsibly in the court process. The relevant Rules for the purposes of this hearing are as follows:

1. Rule 1(8) gives the court a broad discretion to craft a remedy in response to a party’s failure to follow the Rules, or their failure to obey an order in the case or a related case. It stipulates that in those circumstances, the court may make “any order that it considers necessary for a just determination of the matter, on any conditions that the court considers appropriate,” including an order for costs, and an order dismissing a claim made by the party who has “wilfully failed to follow the rules or obey the order.”

2. Rule 13(17) provides that if a party does not comply with an order requiring them to provide financial information, the court may make any appropriate order, including an order dismissing the party’s case and striking out any document filed by the party and a contempt order.

3. Rule 14(23) provides that a party who does not obey an order made on motion is not entitled to any further order from the court unless the court orders that this Rule does not apply. The Rule further stipulates that in addition to any other remedy permitted under the Rules, the court may make any order that is appropriate including an order dismissing the party’s case, striking out the party’s answer or any other document filed by the party, or an order for costs.

In addition to these Rules, the court has an inherent jurisdiction to make any order which it considers appropriate in order to address a party’s failure to respect the court process, including failure to comply with court orders. This authority includes the jurisdiction to strike a claim of a party who is in breach of an order.¹

Family Court proceedings are intended to be a means by which aggrieved parties can have their disputes arising after separation adjudicated upon by the court in a just, efficient and timely manner. Unfortunately, they all too often become a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party. The frequency with which Family Law litigation degenerates into an abusive game of delay tactics, stonewalling, and dodging of judicial authority is a concern which must remain at the forefront of the judge’s mind in considering remedies for a party’s failure to participate as required in court proceedings or to comply with court orders. Family Law litigants who come to the court for assistance must come with a strong sense of assurance that the process will be an effective means of mending and stabilizing the family fabric, rather than a futile money pit of failed justice. The court has a critical responsibility and role to play in ensuring that proceedings which are intended to protect families and lead to resolution of pressing and emotionally divisive issues are not hijacked by a party and transformed into a process for further victimizing the other party and the children in their care.

The Rules referred to above are the main tools which a judge presiding over Family Law matters has in their toolbox to prevent a party from embarking upon the game of litigation abuse. The scope of these Rules must be interpreted broadly in order to protect the integrity of the court process and the beneficial intention of Family Law proceedings, and to ensure that parties who do respect the court system are able to achieve justice in a timely, affordable and emotionally respectful manner. Judicial response to a party’s failure to respect the court process and court orders should be strong and decisive. The judge should be as creative as necessary in crafting remedies so as to ensure that the noncompliance identified and the resulting damage to the other party are addressed as fully, justly and quickly as possible.”

Levely v. Levely, 2013 ONSC 1026 (CanLII) at 10-13

“The motion judge recognized that there are no statutory provisions governing Ontario’s jurisdiction to hear the claims advanced by Ms. Knowles. He turned to the real and substantial connection test as explained in the leading case Club Resorts Ltd. v. Van Breda, 2012 SCC 717, [2012] 1 S.C.R. 572.  The motion judge concluded, at para. 46:

In summary, for the reasons discussed above, I find that Ontario has jurisdiction over this case because there is a real and substantial connection between the parties, issues and transactions in question in this case and Ontario. The presumptive factors establishing jurisdiction are that the case involves a claim to ownership of Ontario land, a claim for damage (the allegation of detriment incurred by the applicant in enriching the respondent) suffered in Ontario and a claim for support by a party who is ordinarily resident in Ontario.  Further, the parties were both ordinarily resident in Ontario (as well as Florida) until their separation. Although their primary residence was in Florida, their customary pattern of life included residence for a substantial period each year in their Ontario home from 2007 through 2011 which made Ontario a “real home”.  From the date of separation, the applicant was ordinarily resident in Ontario and not elsewhere.

The parties agree that the Van Breda analysis applies to the jurisdictional inquiry.  As explained in Van Breda, at para. 99, that inquiry focuses on the connection between the forum and the subject matter of the litigation and the defendant.  The inquiry looks to the claim as a whole:

The purpose of the conflicts rule is to establish whether a real and substantial connection exists between the forum, the subject matter of the litigation and the defendant. If such a connection exists in respect of a factual and legal situation, the court must assume jurisdiction over all aspects of the case. The plaintiff should not be obliged to litigate a tort claim in Manitoba and a related claim for restitution in Nova Scotia. That would be incompatible with any notion of fairness and efficiency.

While the ultimate determination of jurisdiction looks to the “factual and legal situation” as a whole, it is helpful when applying Van Breda to examine each claim individually. The nature of each claim may affect which facts will be viewed as presumptive connecting factors for the purposes of the Van Breda inquiry.

…

I agree with the motion judge that Thomson establishes that a person can be “ordinarily resident” in more than one place at the same time.  With respect, the contrary holding in Derksen v. Insurance Corp. of British Columbia, [1995] B.C.J. No. 2709, at paras. 20-21 (S.C.) misreads Thomson.  I also find nothing in the judgments in Thomson that would justify limiting the court’s analysis to the taxation statute in issue. The definition of “ordinary residence” arrived at by the majority in Thomson is consistent with the plain meaning of the phrase and reflects the reality of the lifestyle that some people lead.  The motion judge was satisfied that Ms. Knowles and Mr. Lindstrom had that kind of lifestyle.  The record fully supports that finding.

The Family Law Act is silent on the question of jurisdiction over Ms. Knowles’ support claim. The motion judge held that in the absence of legislative direction to the contrary, that he was not limited to the concept of primary or principal residence, when considering the significance of residence to the jurisdictional question. I agree. In my view, if there is no controlling statutory provision, the concept of ordinary residence as defined in Thomson is appropriate when considering whether the parties’ physical connection to a jurisdiction is sufficient to constitute a presumptive connecting factor for the purposes of the Van Breda analysis.”

Knowles v. Lindstrom, 2014 ONCA 116 at 16-18, 32-33