“I want to take this opportunity to wish all of the subscribers to the Siegel Family Court Calendar a peaceful and restful break.
I’ve been doing the Calendar now for 4.5 years (about 2.5 years longer than I ever intended) and, despite the amount of work involved, find it stimulating, challenging, and, especially when I hear from many of you with your feedback, rewarding and fulfilling.
See you in 2023, with all new quotes starting January 4th.”
Brahm Siegel
“The leading case on classifying legal issues as questions of law, fact or mixed fact and law is Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 (“Southam“). In Southam, the Supreme Court of Canada commented, at para. 35, that, “[b]riefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.”
The parties agree on the appropriate standards of review. The standard of review on questions of law is correctness, while findings of fact and factual inferences are reviewable for palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10 and 25. A question of mixed fact and law involves the application of a legal standard to a set of facts, and is subject to review for palpable and overriding error, except for extricable questions of law: Housen, at para. 26. A question of law may be extricable from a question of mixed fact and law if, for example, the incorrect legal standard is applied, or a part of a legal test is not considered by the decision-maker. The extricable question of law is reviewed on a correctness standard.
The standard of palpable and overriding error was further articulated by the Ontario Court of Appeal in Waxman v. Waxman, 2004 CanLII 39040 (ON CA), at paras. 296, 297 and 300:
[296] The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear: Housen at 246. Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.
[297] An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254 at 281.
[300]…First and foremost, as indicated above, the “palpable and overriding” standard applies to all factual findings whether based on credibility assessments, the weighing of competing evidence, expert evidence, or the drawing of inference from primary facts.
In Spadacini-Kelava v. Kelava, 2020 ONSC 5561 (CanLII), at para. 32, Kurz, J. referred to the decision of Desormeau, J. in Rosenberg v. Yanofsky, 2019 ONSC 6886, as offering an excellent review of the law regarding the standard of review of the decision of an arbitrator in a family law proceeding, in which she wrote:
7 The decision of an arbitrator deserves as much deference on appeal as does a decision of a trial judge: Palmer v. Palmer, 2010 ONSC 1565 (Ont. S.C.J.) at para. 3 (cited in Reati v. Racz, 2016 ONSC 1967, at para. 28)
8 In reaching an award, an arbitrator sits in the same position as a judge in a lower court when a decision is appealed to a higher court, and for a decision to be overturned on appeal, the appellate court must find that the reasons amount to an error [in] law and that the decision is not correct, or that a palpable and overriding error was made on a question of mixed fact and law: Gray v. Brusby, 2008 CarswellOnt 4045 (Ont. S.C.J.) at para. 27, and Palmer, supra, at para. 5, cited in Reati v. Racz, 2016 ONSC 1967, at para. 29.
…
13 The Court should not interfere with an arbitrator’s award unless it is satisfied that the arbitrator acted on the basis of a wrong principle, disregarded material evidence, or misapprehended the evidence: O’Connell v. Awada, 2019 ONSC 273, at para. 9, citing with approval Robinson v. Robinson, [2000] O.J. No. 3299 (Ont. S.C.J.), at para. 5.
The issues raised in this appeal involve questions of law; questions of fact; and questions of mixed fact and law. The Arbitrator’s determinations with respect to questions of fact and mixed fact and law are entitled to deference and cannot be interfered with unless they amount to palpable and overriding error in facts or in mixed fact and law. The question is whether, the Arbitrator erred, with respect to identifying the correct legal test (an error of law), or correctly identified the legal test but erred in applying the test to the facts (an error of mixed fact and law).
Due to the fact-based and discretionary nature of family law cases, trial judges and arbitrators must be afforded a high degree of deference: see Wright v. Holmstrom, 2016 ONCA 360.”
“Parenting orders are inherently exercises of discretion: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13. A trial judge’s exercise of discretion and factual findings in connection with it are entitled to deference on appeal: A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, at para. 4. The caution an appellate court must show before interfering with a parenting order by a trial judge is all the more pronounced where, as here, the decision has already been implemented and we are asked to interfere with the trial judge’s step by step process mid-course, but without current information.”
“In our view, where the amount of child support that should have been paid in a prior year is under consideration, the payor’s actual income for that year is the amount that should be used to calculate support for the prior period, so long as the payor’s actual income for the prior period is known.
When calculating prospective child support, income from the previous year is used to calculate future support, essentially as a matter of convenience, because actual income for the upcoming year is incapable of exact determination. However, where, as here, the actual amount of income earned in a prior year is known, it is that amount that should determine the quantum of support that should have been paid.
Our conclusion in this regard is rooted in common sense – but also in s.2(3) of the Child Support Guidelines, SOR/97-175, which states, “[w]here, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used.”
Further, we agree with the following comments of Baltman J. in Desjardins v. Bart, 2006 CanLII 33701 (ON S.C.) at para. 17:
Although the normal practice, based on convenience, is to address child support going forward based on the previous year’s income, once the court is intervening and looking backwards at a particular period, it makes sense to adjust child support retroactively for the relevant period, which in this case is 2004.”
“Compensatory support is intended to compensate a spouse upon the breakdown of the marriage for contributions made to the marriage, such as sacrifices made for a spouse’s career and loss of economic opportunity sustained as a result of raising children. This is primarily applicable where a property division is unable to achieve this result. Where a spouse has the capacity to be self-sufficient but the spouse’s ability to enjoy the same standard of living as during the marriage has been negatively impacted as a result of the marriage breakdown, compensatory support helps to ensure that the economic impact of this breakdown is equitably shared. Non-compensatory support arises where there is an economic dependency that may be due to a variety of factors such age, illness or disability. These factors need not necessarily be connected to the marriage.”
“As I have previously emphasized in Kerr v. Kerr, the Court of Appeal statement in Papp v. Papp that clear and compelling evidence is typically required to disrupt the status quo on a motion for temporary relief did not establish a presumption that the status quo should continue absent clear and compelling circumstances that make a change absolutely necessary. On motions dealing with temporary custody, residence and access there is no presumptive rule in favour of the status quo that must be rebutted by the party seeking to change the existing arrangements. As the Court of Appeal emphasized in Papp v. Papp, the applicable test remains the best interests of the child. In applying that test, there is an obligation on the part of the court to carefully scrutinize and weigh the quality, magnitude, and strength of the evidence adduced in support of a change to the status quo arrangements, and to ensure that the evidence is sufficiently compelling before acting upon that evidence to vary the existing arrangements. The Ontario Divisional Court highlighted the importance of avoiding presumptive rules on motions relating to temporary custody and access in the case of Holt v. Anderson, 2005 CarswellOnt 5158, (Div. Ct.). It emphasized that the overriding consideration in such cases is the best interests of the child, and that the maintenance of the status quo arrangements as of the time of the hearing should not be elevated into an immutable principle.
The Supreme Court of Canada has also highlighted the importance of avoiding rigid rules and presumptions in carrying out the best interests analysis in custody and access cases.
In determining the issue of whether the status quo respecting decision-making and timesharing should be changed in the context of a motion for temporary relief, it is important to maintain a focus on what is meant by “the status quo.” The courts have clarified that the phrase “status quo” with respect to timesharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. (Irwin v. Irwin(1986), 3 R.F.L. (3d) 403 (H.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (S.C.J.); Horton v. Marsh, 2008 Carswell NS 371 (S.C.)) I agree with this proposition. This court has held in many cases that the status quo that is relevant on temporary custody and access motions is that which existed prior to the separation between the parties. (see, for example Howard v. Howard (1999), 1 R.F.L. (5th) 375 (S.C.J.)). In my view, for the purposes of applying the principles set out in Papp v. Papp regarding the strength of the evidence required to disrupt the status quo arrangement, 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.”
“…it is important to observe, as the trial judge did, that spousal support is driven by both compensatory and non-compensatory, or needs-based, considerations: Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, at para. 201. The appellant’s argument focuses only on errors in assessing need, despite the fact that the respondent’s strongest entitlement to support was compensatory: to “recognize any economic advantages” arising from the marriage (Divorce Act, s. 15.2(6)(a)), to compensate her for her partnership role during a marriage of nearly 25 years, and to give her a continued share of the fruits of that partnership.
In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at 870, the Supreme Court of Canada explained how a court should evaluate the compensatory grounds for spousal support:
Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), supra, and Linton v. Linton, supra). Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.
The trial judge was entitled to approach the question of the respondent’s entitlement by referring to the standard of living the parties enjoyed during their marriage. The trial judge was also entitled to determine that “without spousal support, Ms. Plese w[ould] have suffered economic hardship as a result of the end of the marriage.” The respondent’s contribution to the parties’ financial security in the early years of the marriage enabled the appellant to take business risks that might otherwise not have been possible. Coupled with the respondent’s role as the primary caregiver to their three children, the trial judge properly concluded that there was a firm basis on which to make a compensatory spousal support award.”
“A contractual term may be implied on the basis of the presumed intention of the parties where it meets the “officious bystander” test. The test is set out as follows in Energy Fundamentals Group Inc. v. Veresen, 2015 ONCA 514, at para. 31, quoting from Shirlaw v. Southern Foundries (1926) Ltd., [1939] 2 K.B. 206 at 227, [1939] 2 All E.R. 113 at 124 (C.A.):
Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying. Thus, if while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common: “Oh, of course.”
Implication of a contractual term does not require a finding that a party actually thought about it or expressly agreed to it. Often terms are implied to fill gaps to which the parties did not turn their minds: Energy Fundamentals, at para. 35. On the other hand, a court will not imply a term that contradicts the express language of the contract or is unreasonable: Energy Fundamentals, at para. 36. The analysis of whether to imply a term must be done on an objective basis but having regard to the specific parties and specific contractual context: Energy Fundamentals, at para. 38. See also Banerjee v. Mathoo, 2021 ONCA 140, in which the officious bystander test was applied in the family context.”
“In interpreting a contract, a judge must determine the intent of the parties and the scope of their understanding: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, at para. 47. To do so, a judge “must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract”.
At para. 57 of Sattva, the Supreme Court of Canada considered how a judge may use evidence of the circumstances in which a contract was signed. Although a judge may consider the surrounding circumstances, “they must never be allowed to overwhelm the words of that agreement”. The goal of examining surrounding circumstances is rather “to deepen a decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract” [emphasis added]. A court cannot use to the surrounding circumstances “to deviate from the text such that the court effectively creates a new agreement”.
The Court further limited the use of evidence of surrounding circumstances as seen at para. 58 of Sattva. Such evidence “should consist only of objective evidence of the background facts at the time of the execution of the contract (…) that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting”.”
“It is well-established that the most basic obligation in family law is the parties’ duty to disclose financial information and that this requirement is immediate, automatic, and ongoing. As a result, it should not require a court order to enforce: see Roberts v. Roberts, 2015 ONCA 450 (CanLII), 65 R.F.L. (7th) 6, at paras. 11-14. As this court warned in Manchanda v. Thethi, 2016 ONCA 909 (CanLII), 84 R.F.L. (7th) 374, at para. 13: “Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.”
This is because, as this court recognized in Roberts, at para. 12, breach of the disclosure obligation causes real harm:
Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.”
