“The assessment of witness credibility and reliability is not an exact science. There are many considerations relevant to the weighing and assessment of these matters. These include a consideration of the witness’s coherence and logic, corroborating testimony by other witnesses, and corroborating documentary evidence. Other considerations include a witness’s willingness or disinclination to make admissions and the extent to which they are clear or evasive. In addition, the witness’s relationship to one or both parties and whether the witness has a vested interest in the case are also relevant considerations: see for example, Jayawickrema v. Jayawickrema, 2020 ONSC 2492 (CanLII), at para. 28.”
Month: November 2024
November 28, 2024 – Child Support for Children Over the Age of Majority
“In Minish v. Timmons, 2021 ONSC 7622, Justice Lacelle refers to the direction provided by the Court of Appeal in Lewi v. Lewi, 2006 CanLII 15446 (ON CA), 2006 CarswellOnt 2892 as it relates to the application of the Child Support Guidelines for children at the age of majority as follows:
46 I also consider how the case law directs me to apply these provisions. The Court of Appeal for Ontario in Lewi v. Lewi provided the following directions:
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- The law presumes that the “standard Guideline approach” of s. 3(2)(a) will be used unless the court considers that approach to be inappropriate (para. 129);
- It is open to the court to find that the “standard Guideline approach” of s. 3(2)(a) may be appropriate where the child remains living at home but not if the child is away at school for 8 months of the year (para. 138);
- Both s. 7 and s. 3(2)(b) require the court to consider whether a child of majority age is able to make a contribution to his or her post-secondary education expenses (para. 141);
- Section 3(2)(b) requires the court to have regard to the “means” of the child. Both capital and income are encompassed by the term “means”. The section requires the court to consider the child’s means in the context of the financial ability of each of the parents to contribute to the support of the child (para. 142).
- While s. 7 refers in its criteria to the contribution of the child, if any, this does not indicate a greater expectation for the child’s contribution under s. 7 compared to s. 3(2)(b). The court has the discretion under both provisions to decide the amount the child should be expected to contribute (para. 159);
- As a general rule, the amount of child support that a parent is ordered to pay should be determined on the expectation that a child with means will contribute something from those means towards his or her post-secondary school education. The extent of the contribution expected depends on the circumstances of the case. There is no standard formula under either s. 7 or s. 3(2)(b);
- Proper concerns in the analysis under s. 7 and 3(2)(b) are the effect of the order on the parents given their financial means; whether the expenses are of a type that both parents would have promoted had the family remained intact; and the preservation of the existing proportion of net disposable income between the parents (para. 149). The means of the children and the means of the parents are to be considered together and balanced (para. 150);
- The focus of s. 3(2)(b) is, “[n]ot on the payer’s income but rather on the amount of support and its appropriateness having regard to the needs and condition of the children and the financial ability of the spouses to contribute to the children’s support” (para. 155);
- In fashioning an order applying the broad criteria in s. 3(2)(b), the court may well draw upon the principles of the Guidelines and its experience in applying them. For example, it would be entirely appropriate for the court, under s. 3(2)(b), to consider that the parents should share post-secondary expenses in proportion to their incomes after deducting the contribution, if any, of the child. The evidence upon which the court might conclude it was just and appropriate that the parents should share the expenses in some other proportion would be the same under both provisions (para. 157).
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47 Further, it is important to consider the proposed budget for the child’s expenses. Apart from considering the cost of items in the budget, it is important for the court to consider the appropriateness of the expense, having regard to the parties’ present and past circumstances: Jahn–Cartwright v. Cartwright, 2010 ONSC 923 at para. 70.”
November 27, 2024 – Varying a Final Order on a Temporary Basis
“The cases of F.K. v. A.K., 2020 ONSC 3726 (CanLII), and S.H. v. D.K., 2022 ONSC 1203 (Ont. Div. Ct.) set out and clarified the legal threshold for when a final order can be varied on a temporary motion. To summarize the legal considerations reviewed by Pazaratz, J., starting at paragraph 48:
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- To determine a request to change custody, access or parenting order, the court must embark upon a two-stage inquiry. Gordon v. Goertz1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (SCC).
- The first step: There must be a material change in circumstances since the last order was made.
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a. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.
b. The change must materially affect the child.
c. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and “if known at the time, would likely have resulted in a different order.” L.M.L.P. v. L.S.[2011] SCC 64.
d. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.
e. If there is no material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485 (Ont. C.A.).
f. If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.
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a. If a material change in circumstances has been established the court, then embarks on a fresh inquiry into the best interests of the child.
b. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones, 2000 CanLII 22571 (ON SC); Persaud v. Garcia-Persaud2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.
c. The court must ascertain the child’s best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young2003 CanLII 3320 (Ont. CA).
d. The child should have maximum contact with both parents if it is consistent with the child’s best interests. Gordon v. Goertz; Rigillio v Rigillio2019 ONCA 548 (Ont. CA).
e. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child’s needs and the ability of each parent to meet those needs. Gordon v. Goertz.
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- The added complication: the father seeks a temporaryvariation of a finalparenting order. This requires that the court conduct an even more stringent analysis:
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a. In all instances, courts must exercise caution before changing an existing arrangement which children have become used to.
b. This is especially the case where the existing parenting arrangement has been determined by way of court order. The starting point is that court orders are presumed to be correct. Montgomery v. Montgomery1992 CanLII 8642 (ON CA); Gordon v. Gordon 2015 ONSC 4468 (SCJ); Oickle v. Beland 2012 ONCJ 778 (OCJ).
c. And the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. If the general rule is that we are reluctant to change temporaryorders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.
d. Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority to grant a temporary variation of a final order in the appropriate circumstances. Stokes v. Stokes2014 ONSC 1311 (SCJ); Huliyappa v Menon 2012 ONSC 5668 (SCJ); Clements v Merriam 2012 ONCJ 700 (OCJ).
e. But the evidentiary basis to grant such a temporary variation must be compelling.
f. The court must start with the aforementioned two-part material change in circumstances analysis.
g. But for a temporary variation, the court must also assess whether the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests.
h. The onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child.
i. The court must be satisfied that the child’s best interests requirean immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours.
j. The court must be satisfied that the existing order has come to be demonstrably contraryto the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm.
k. Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.
l. And given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established.
m. On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril. After that, priority switches to rescuing and protecting the child. And the pace of correction is directly related to the magnitude of the child’s current exposure to harm.
Dambrot, J. sitting in Divisional Court in S.H. v. D.K., 2022 ONSC 1203 (Ont. Div. Ct.) as a modification of the threshold described by Pazaratz, J., at paragraph 40 concurred that the court must be satisfied “that circumstances exist of so compelling and exceptional nature that they require an immediate change”. However, he continued:
40 … I would only caution that there may be exceptional circumstances that justify a temporary variation of a final order other than those described in F.K. v. A.K. It will be recalled that Pazaratz J. insisted that a temporary variation of a final parenting order could only be made where the child’s physical and/or emotional well-being is in jeopardy and the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. That is certainly an indication of how exceptional the circumstances must be to make an interim variation of a final parenting order, but I would not foreclose the possibility that other, equally compelling circumstances might meet the test. (Emphasis added).
Dambrot, J. in S.H. v. D.K. supra, sent a cautionary note when the court is asked to overturn longstanding status quo on a temporary motion. Analytical rigor must be maintained. In overturning a decision that changed a final order on a temporary basis, Dambrot, J. wrote at paragraph 61:
I noted earlier the motion judge’s caveat on the stringent legal test in F.K. that cautioned against placing too much emphasis on maintaining the status quo may have led him into error. I am satisfied that it did. Having reviewed his reasons in detail, I am driven to the conclusion that he watered down the importance of maintaining the status quo on an interim motion, and that his approach runs directly contrary to what Benotto J. said in Davis v. Nusca, that “there is the basic principle of maintaining the status quo until trial which is extraordinarily important in family law cases.” The motion judge lost sight of the importance of maintaining the status quo until trial and conflated the requirement that there be compelling reasons to make an order on an interim basis with a determination of the best interests of the child. He gave the requirement of compelling reasons no real meaning and disturbed a long-standing parenting arrangement on an interim basis in the complete absence of urgent, exceptional or in any other sense compelling reasons. In effect, he gave final relief on an interim motion.”
Kumurdjieva v. Cerasuolo, 2023 ONSC 6687 (CanLII) at 6-8
November 26, 2024 – Nesting Orders
“Nesting orders are not common. In Chaudhry v. Meh, 2019 ONSC 6101 (CanLII), at para 10, the court described the purpose of a nesting order as follows:
A nesting order may be in the child’s best interests where it keeps the child in the matrimonial home, while rotating the parents in and out, to maintain the continuity of the parents’ involvement while minimizing the disruption to the child. However, nesting orders have been rejected where they create opportunities for conflict or perpetuate conflict between the parents. Where the parties have lived in the same home with little interaction and little conflict, a nesting order made be appropriate, Grandy v. Grandy, 2012 NSSC 316 at paras 33, 35.
As always, the primary consideration is the best interests of the child.”
November 25, 2024 – Decision-Making Responsibility
“The recent changes to the legislative terminologies, contained in the Children’s Law Reform Act, reflect a more child focused approach to decisions relating to parenting orders. Regarding decision-making responsibility, the focus is on the role of the parent visa vie the child; the responsibility to make effective decisions which impact the child, rather than on the rights of the parents in relation to the child. Regarding parenting time, the focus is on the role of the parent while having care of the child; the responsibly to provide effective parenting, rather than on a parent’s “right” to time with the child.
Along with the changes to terminology is a recognition that decision-making responsibility is not an “all or nothing” proposition, and that the responsibilities can be divided between parents, as is consistent with the interests of the children.
The enumerated factors for consideration, confirm that the determination is specific to the facts of each case. The factors provide a framework to consider the unique circumstances of each family, and suggest considerations found to be particularly relevant to determining how the child’s best interests can most effectively be determined. The factors provide a helpful framework and focus, for considering the facts of each case.
Jurisprudence has also developed and evolved, around the determination of decision-making responsibility and parenting time, to guide in the application of the legislative framework.
Of particular relevance in this case, is the jurisprudence relating to the determination of sole decision-making responsibility versus shared or divided decision-making. These parents initially made the determination, following months of negotiations, that it was in the best interests of their children to share decision-making responsibility on major decisions relating to their children. This was reflected in the Separation Agreement they executed in August 2016, wherein they agreed to share “joint custody” of their children, and to make major decisions concerning the children’s education, non-emergency health-care, and religion, together.
Each parent is now seeking sole decision-making in relation to major decisions, in consultation with the other parent.
There is a history of judicial consideration of the issue of “joint” or shared decision-making versus sole decision-making, and the circumstances in which each is more appropriate. In the end, however, the determination is fact-specific to the particular circumstances of the family before the Court. The question is always, what decision-making regime will best serve the interests of these children; their need to have effective, timely decisions made for them, consistent with their unique needs and circumstances. Looked at from the parents’ perspective, which parent is best able to assess and understand the needs of the children and to make decisions that meet those needs effectively, and with the meaningful involvement of the other parent.
Just as each family differs, and circumstances require an individualized regime to best meet the unique needs, so too does the legislation provide for individual forms of decision-making orders, providing for decision-making to be granted to more than one parent, or the incidents of decision-making to be divided between the parents.”
November 22, 2024 – How to Stay Enforcement of Support
“The Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (“FRSAEA”) is a statutory code for the enforcement of support orders in Ontario. By FRSAEA subsection 20(6), the operation or enforcement of a support deduction order is not affected by a stay of enforcement unless the underlying support order is also stayed.
A payor may seek relief regarding the amount that is being deducted for arrears under a support deduction order: FRSAEA subsection 27(1)(c). The combined effect of FRSAEA subsections 20(6) and 27(1)(c) is that the Director may consent only to a stay of the amount deducted for arrears. To obtain a full stay of enforcement, the support payor must not only obtain a stay of enforcement against the Director, FRO, but also a stay of the underlying support order against the support recipient.
The support recipient is the proper party to respond to a request for a stay of the support order, while the Director responds to enforcement issues, including a stay of deductions for arrears.
In Garneau v. Ontario (Director, Family Responsibility Office), 2010 ONSC 2804, the moving party sought an order suspending the enforcement of spousal support obligations. Justice Quinlan summarized the statutory scheme at paras. 31-33:
[31] The Director has a duty to enforce support orders filed with her office and the authority to determine by what means her duties are to be carried out. An order staying the Director’s enforcement power would preclude FRO from exercising its legislative mandate.
[32] The Director is required to enforce a support deduction order that is filed in her office until the related support order is terminated and there are no arrears owing or until the support order and support deduction orders are withdrawn.
[33] A support deduction order is not affected by an order staying the enforcement of the related support order unless the support order is also stayed. Proceedings to stay an ongoing support obligation raise issues of entitlement as the support payor is seeking to vary, albeit temporarily, support payments agreed to between the payor and the recipient. The Director is not a party to such proceedings.”
November 21, 2024 – Relocation Granted on Temporary Basis
“The jurisprudence also requires the court to conduct a stringent analysis before permitting a party to relocate a child on a temporary basis.
The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley 1999 CanLII 13990 (ON SC), [1999] O.J. No. 3234 (S.C.J.), where the court set out the following principles:
a) A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial.
b) There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the familyunit, which will be lost if the matter awaits a trial of the best interests of the children or the best interests of the children might dictate that they commence school at a new location.
c) Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.
The following are additional principles regarding temporary relocation cases:
a) The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move. See: Mackenzie v. Newby, [2013] O.J. No. 4613 (OCJ).
b) Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed. See: Goodship v. McMaster2003 CanLII 53670 (ON CJ), [2003] O.J. No. 4255 (OCJ).
c) Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. See: Fair v. Rutherford-Fair2004 CarswellOnt 1705 (Ont. S.C.J.). In such cases, the court requires a full testing of the evidence. See: Kennedy v. Hull, [2005] ONCJ 275.
d) Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result. See: Boudreault v. Charles, 2014 ONCJ 273.
e) Where one parent moves to another city or community with the child without notice to the other parent, the other parent may apply to have the child returned to the home community. See: Hazelwood v. Hazelwood, 2012 ONSC 5069; Jennings v. Cormier, 2022 ONCJ 338, per Justice Melanie Sager.
f) There is a difference in a temporary relocation analysis between permitting a temporary move and sanctioning a move that has already happened, particularly when the move is contrary to a temporary non-removal order. A court cannot sanction the latter. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 68. This is applicable by analogy when the move is in the face of a written objection to the move. See: Jennings v. Cormier, supra.
g) Courts will permit temporary relocation where there is no genuine issue for trial (see: Yousuf v. Shoaib, [2007] O.J. No. 747 (OCJ)), or where the result would be inevitable after a trial (see: Mackenzie v. Newby, supra, where the court observed that the importance of the father’s contact with the child could not override the benefits that the move would have on the child).
Although it was a final relocation decision, the Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22, set out the following relocation considerations:
a. The difficulties inherent to the best interests principle are amplified in the relocation context. Untangling family relationships may have profound consequences, especially when children are involved. A child’s welfare remains at the heart of the relocation inquiry, but many traditional considerations do not readily apply in the same way (par. 98)
b. Even where there is an existing parenting order, relocation will typically constitute a material change in circumstances and therefore satisfy the first stage of the Gordonframework (par. 113).
c. The so-called second stage of the Gordonframework is often the sole issue when determining a relocation issue. The crucial question is whether relocation is in the best interests of the child (par. 115).
d. In all cases, the history of caregiving will be relevant. And while it may not be useful to label the attention courts pay to the views of the parent as a separate “great respect” principle, the history of caregiving will sometimes warrant a burden of proof in favour of one parent (par. 123).
e. The court should avoid casting judgment on a parent’s reasons for moving. A moving parent need not prove the move is justified. And a lack of a compelling reason for the move, in and of itself, should not count against a parent, unless it reflects adversely on a parent’s ability to meet the needs of the child. Ultimately, the moving parent’s reasons for relocating must not deflect from the focus of relocation applications — they must be considered only to the extent they are relevant to the best interests of the child (pars. 129-130).
f. Relocation that provides a parent with more education, employment opportunities, and economic stability can contribute to a child’s wellbeing. These considerations all have direct or indirect bearing on the best‑interests‑of‑the‑child assessment (par. 171).”
November 20, 2024 – Relocation, Parenting Time & Onus
“A relocation is more likely to be approved “where the clear primary caregiver for a child seeks to relocate and more likely to be denied if there is a shared parenting arrangement” (see: Barendregt, at para. 121).
The applicable burdens of proof on a relocation application are as follows:
a. if the parties substantially comply with a court order, arbitral award or agreement that provides that the child spend substantially equal time in the care of each party, the party intending to relocate the child has the burden of proving that the relocation would be in the child’s best interests (see: Divorce Act, s. 16.93(1));
b. if the parties substantially comply with a court order, arbitral award or agreement that provides that the child spend the vast majority of their time in the care of the party intending to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the child’s best interests (see: Divorce Act, s. 16.93(2)); and
c. in all other cases, the parties share the burden of proving whether the relocation is in the child’s best interests (see: Divorce Act, s. 16.93(3)).
The law of statutory interpretation is well settled. The words of a statute “are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (see: Wong v Liu, 2023 ONCA 272, at para. 19). The appropriate interpretation is one “that best fulfills the objects of the legislation and that avoids any inconsistency between its different provisions and avoids absurd consequences” (see: Wong, at para. 19).”
November 19, 2024 – Supervised Access
“I agree with Justice Pazaratz that “[s]upervised access is not intended to be a long-term solution to access problems”, but that it may be an appropriate intermediate step in situations where, for instance, there are substance abuse issues that need to be addressed and/or where the child is being introduced or reintroduced to a parent after a significant absence. Izyuk v. Bilousov, 2015 ONSC 3684, at paragraphs 52-53.
At the same time, however, it must be remembered that supervised access is a short step away from complete termination of any relationship between a parent and a child, and thus it should be seen as the exception and not the norm, as a last resort and not as a knee-jerk reaction to one parent’s allegations against the other. There is a very helpful article on the subject written by Nicholas Bala, Michael Saini and Sarah Spitz, found at 2016-085 of the December 2016 edition of the Queen’s Law Research Paper Series, titled Supervised Access as a Stepping Stone Rather Than a Destination: A Qualitative Review of Ontario Services & Policies for Assisting Families Transitioning from Supervised Access, 2016 CanLIIDocs 4597.”
November 18, 2024 – RRSP Withdrawals as Income
“I note that the onus is on the payor-spouse to justify a deviation from the s. 16 method of determining income: see Fung v. Lin, 2001 CanLII 28193 (ON SC), [2001] O.J. No. 456 (S.C.).
The case law confirms that this issue is factually driven and determined by what is appropriate in the particular circumstances of the case.
In Fraser v. Fraser, 2013 ONCA 715, 40 R.F.L. (7th) 311, at para. 97, the Court of Appeal for Ontario, for instance, held that RRSP income is presumptively part of a spouse’s income for child support purposes, since RRSP income is included in “total income” on the T1 General form.
At paras. 103-104, J. Simmons J.A. notes as follows:
[103] The clear wording of the Guidelines includes RRSP withdrawals as income and no special exception for RRSP withdrawals has been provided in Schedule III. Although I would acknowledge the possibility that the facts of a particular equalization could in theory reach the threshold of unfairness, I have no evidence about the specifics of the equalization calculation that occurred in this case and cannot so conclude.
[104] Similarly, I do not consider the fact that the father may have used some or all of the RRSP on account of his house purchase as a factor creating unfairness in terms of characterizing the RRSP. Particularly in circumstances where he was not working, the father’s first obligation was to ensure that his children were properly supported. The fact that the father chose instead to buy a four-bedroom house should not deprive his children of an available source of child support.
In Ludmer v. Ludmer, 2014 ONCA 827, 52 R.F.L. (7th) 17, the Court of Appeal upheld the exclusion of RRSP withdrawals where, in the Court’s discretion, it was considered appropriate in the circumstances not to include them. In that case, the withdrawals were found to be “non-repeating encroachments on capital” that were used by the payor to fund the costly litigation and not to enhance the payor’s lifestyle: at para. 24.
In Kotyck v. Kotyck, 2017 ONSC 7261, the Court considered whether the $57,261 the payor received from the collapse of his United States 401(K), the equivalent to a Canadian RRSP, should be included in his income. The court noted that RRSP income is presumptively part of a parent’s income for child support purposes and no exception for withdrawals has been provided in Schedule III of the Guidelines. Justice Hood found that the payor had not demonstrated any unfairness in including the equivalent of the RRSP withdrawal in his income: at para. 9.
In Knight v. Frobel, 2018 ONSC 3651 (Ont. Div. Ct.), the Divisional Court upheld the trial judge’s decision to include a severance payment in the calculation of the payor’s income for a given year.
In MacDonald v. MacDonald, 1997 ABCA 409, 57 Alta. L.R. (3d) 195, the Court of Appeal overturned the trial judge’s decision when the trial judge found that bonuses, stock options and a severance package were property, rather than income. They said that a bonus is considered income for tax purposes and that if any bonus had previously been received by the payor, the Court would look upon it as income for purposes of calculating child support under the Guidelines: at para. 15. The Court of Appeal also found that a severance package was an acceleration of income and a direct income replacement, so it should be added to any other income the payor earns during the period, at para. 17.
In Molitor v. Andreou, [2005] O.J. No. 3815 (S.C.), Mr. Justice Clark found, at para. 7, that a payor does not have the right to forego readily available income to the prejudice of his or her child in terms of reduced support and the Court imputed income to the payor, when he made such a deferral. This Court, in that instance, also included in income for purposes of calculating child support, a one-time payment of USD $353,288, which was a payment settling a collusion claim: at para. 9.”