“Where parental gifts have supported a lifestyle well in excess of a basic standard of living, before and after separation, they will be included as income.”
Month: December 2019
December 19, 2019 – Best Wishes for this Holiday Season
Dear Subscriber,
As 2019 comes to a merciful close, the team here at the Siegel Family Court Calendar wishes you the very best this holiday season. Regardless of your political affiliation, gender, sexual orientation, faith, eye colour, height, weight or favourite font, we hope you enjoy some well-earned downtime over the break and come back ready to collaborate, negotiate or litigate, whatever suits your fancy, in the new year.
Our final quote will appear tomorrow and resume on January 6th. We hope you’ve enjoyed them this year as much as we’ve enjoyed finding and bringing them to you.
Love, Brahm
December 18, 2019 – Double Recovery, a.k.a Double Dipping
“Mr. Hanniman submits that it is unfair to allow double recovery by way of continued spousal support payments to Ms. Hanniman, drawn on his share of his pension income, when she has already received her half of that pension.
In Boston, the Supreme Court of Canada defined double recovery as follows:
The term “double recovery” is used to describe the situation where a pension, once equalized as property, is also treated as income from which the pension-holding spouse (here the husband) must make spousal support payments. Expressed another way, upon marriage dissolution the payee spouse (here the wife) receives assets and an equalization payment that take into account the capital value of the husband’s future pension income. If she later shares in the pension income as spousal support when the pension is in play after the husband has retired, the wife can be said to be recovering twice from the pension: first at the time of the equalization of assets and again as support from the pension income (at para. 34).
As a general rule, double recovery should be avoided where possible. As the Court stated in Boston, it is generally unfair to allow the payee spouse to reap the benefit of the pension both as an asset and as a source of income. 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’s continuing need for support is shown (paras. 63-64).
However, the Supreme Court of Canada also acknowledged that double recovery cannot always be avoided and may be permitted in limited circumstances:
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 … (Boston, at para. 65).”
December 17, 2019 – Court’s Duty to Self-Represented Litigants
“The duty of a trial judge to assist self-represented litigants was canvassed most recently by this court in Dujardin v. Dujardin Estate, 2018 ONCA 597 (CanLII):
it is well-accepted that trial judges have special duties to self-represented litigants, in terms of acquainting them with courtroom procedure and the rules of evidence: Davids v. Davids (1999), 1999 CanLII 9289 (ON CA), 125 O.A.C. 375, at para. 36. However, a trial judge’s duty to assist has limits. It does not entail bending the rules of evidence in an attempt to compensate for the lack of representation. The fair trial rights of opposing parties must be respected. As Brown J.A. said in Sanzone v. Schechter, 2016 ONCA 566 (CanLII), 402 D.L.R. (4th) 135, at para. 22: “A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented.”
In ensuring that a self-represented litigant has a fair trial, the trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case: Davids v. Davids (1999), 1999 CanLII 9289 (ON CA), 125 O.A.C. 375, at para. 36.”
December 16, 2019 – Victory at What Cost?
“This trial is the culmination of three years of litigation between spouses who are the parents of three children. As parents they sought advice, first through the local co-ordinated case management program, subsequently through a sophisticated voice of the children report. Their common refrain for not following the advice given was that it cost too much. The mother testified she could not afford an amount of $350 to take New Ways for Families, a course designed to improve communication between separated parents. The father ceased his pursuit of family counselling necessary to repair his relationship with his two sons, when he could not obtain it free of charge. As spouses, the parties have already had to sell two of their four real properties to cover debt and legal fees. The Respondent’s plumbing business has gone into bankruptcy. Neither spouse is currently employed. Both explain this in some part by reference to the stressful and time-consuming litigation.
“Penny wise and pound foolish:” to be extremely careful about small amounts of money and not careful enough about larger amounts of money.
“For want of a nail the kingdom was lost:” a failure to correct some small dysfunction, a seemingly unimportant act or omission, leading by successively more critical stages to an egregious unforeseen outcome or consequence.
Cost is a word with many meanings. Most importantly, has the litigation been at the children’s cost? From their perspective would a cost – benefit analysis show that the cost of this undertaking has exceeded the resulting benefit? These questions may be asked another way: have the parents been acting in the best interests of their children throughout this litigation? The Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) s. 16 (8) refers to the best interests of a child as the only factor relevant to parenting orders.
The Supreme Court of Canada referred to the best interests test in Gordon v Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, stating as follows:
20. The best interests of the child test […] stands as an eloquent expression of Parliament’s view that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake. […] Parliament has offered assistance by providing two specific directions – one relating to the conduct of the parents, the other to the ideal of maximizing beneficial contact between the child and both parents.
21. […] Parental conduct, however meritorious or however reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child.
24. […] The “maximum contact” principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J.
Sadly, the cost of this litigation has been very high for all concerned, especially the innocent children. The parents’ have not followed the parenting recommendations made for them, and by not doing so, have not acted in the best interests of their children.”
December 13, 2019 – Striking Pleadings At a Conference?
“The express purpose of the Family Law Rules is to ensure fairness, save time and expense, and give appropriate resources to the case (while allocating resources to other cases), in order to manage the case, control the process, ensure timelines are kept, and orders are enforced. As clearly stipulated in subrules 1(7.1), (8) and (8.1), an order, including an order to strike pleadings, can be made at any time in the process, including the settlement conference, to promote these overarching purposes. In this way, any order that promotes the overall objectives of the rules may be made at any time, including at a settlement conference.”
Burke v. Poitras, 2018 ONCA 1025 (CanLII) at 7.
December 12, 2019 – Loan vs. Gift
“In Colangelo v. Amore, 2010 ONSC 5657 (CanLII) D.M. Brown J. as he then was, reviewed an issue as to whether or not money advanced from a man to his then girlfriend was a gift or a loan. Justice Brown provided the following helpful principles that emerged from the caselaw:
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- Where one person transfers money to another in circumstances where the payor is not indebted to the payee or where no presumption of advancement arises, once the transfer is proved the burden then falls on the recipient of the money to show that it was not repayable. Para. 56.
- An inter vivosgift consists of a voluntary transfer of property from the true possessor to another with the full intention on the part of both donor and donee that the thing shall not be returned to the donor, but shall be retained by the donee as his or her own. Para. 57
- Three requirements are necessary to establish a valid gift inter vivos, (i) an intention to donate; (ii) a sufficent act of delivery; (iii) an acceptance of the gift. Para. 57
- If it is proven that the payment of money was made, the burden is on the recipient of the money to show that both parties knew and intended that the money not be repaid. Para. 59.
- The onus of proof to establish a valid gift rests on the donee. Para. 60
- The standard proof which the recipient of a thing must meet to establish that a transfer of the thing was an inter vivosgift is the general standard of proof on the balance of probabilities applicable to civil cases. Para. 62.”
December 11, 2019 – Res Judicata
“Henderson v. Henderson (1843), 67 E.R. 313, 3 Hare 100 (Eng. V.-C.) outlines the principles to be considered in applying res judicata. At p. 319, the court states:
[w]here a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
December 10, 2019 – Elements of Gift
“The transfers of funds that Ms. Samnani made to Mr. Galmani were clearly not in the nature of a gift. In Serra v. Serra, (2007), the elements of a gift were described as follows:
A gift is the voluntary transfer of property without consideration (Birce v. Birce (2001), 2001 CanLII 8607 (ON CA), 56 O.R. (3d) 226 (Ont. C.A.) at para. 17). It has the following elements: intention to transfer property; certainty as to the property to be transferred; certainty as to the recipient of the gift; and delivery and perfection of the gift by doing everything necessary to effect an irrevocable transfer (Ruwenzori Enterprises Ltd. v. Walji, [2004] B.C.J. No. 1147 (B.C. S.C.)): Serra v. Serra, 2007 CanLII 2809 ONSC.”
December 9, 2019 – Notional Disposition Costs Denied
“The issue of notional costs was canvassed in Sengmueller v. Sengmueller (1994), 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.), by the Court of Appeal. Satisfactory evidence must be led of a likely disposition date before the Court can take into consideration disposition costs. The Supreme Court of Canada in Rick v. Brandsema, 2009 SCC 10 (CanLII), [2009] 1 S.C.R. 29, refused to grant a debt to the owner of a business for capital gains where he tendered no evidence as to the likelihood or date of the eventual sale. Specifically, the Court stated, at para. 56:
In fact, the husband tendered no evidence as to the likelihood or date of an eventual sale. While it is true that at some point capital gains tax may become payable, in the absence of evidence from the husband of an imminent or eventual sale so as to justify any deduction, the trial judge’s decision not to make a deduction was completely supportable. [Emphasis in original.]
The applicant submits that I should allow some amount for capital gains. She relies on Schild v. Kassian, 2010 ABQB 572 (CanLII), where Strekaf J. allowed half of the capital gains requested because capital gains would inevitably be incurred despite no evidence of any current intention to sell.
There is no evidence from the applicant as to her plans on selling the cottage. I am not prepared to allow a claim for disposition costs for possible capital gains without some evidence as to a potential sale. Consequently, I reject the applicant’s request for the $3,000 debt for anticipated capital gains as she has not met her evidentiary burden of proof.”