Author: dawi

“The purpose of spousal support in cases such as this is to relieve the economic hardship suffered by reason of the marriage or its breakdown.  There is no reason per sethat spousal support cannot continue past the date of retirement of the pension-holding spouse. However, several factors must be considered in making that decision.  On retirement, the pension-holding spouse may apply to vary the support order if his ability to paysupport is compromised (see Linton, supra, at p. 31, and Rivers, supra, at para. 17).  The decision of whether to vary support depends on whether the applicant can demonstrate that there has been a material change in circumstances pursuant to s. 37(2)of theFamily Law Act.

The payee spouse’s need and the payor spouse’s ability to pay are always factors which a court considers when determining spousal support (see s. 33(9)of the Family Law Act).  Another issue is the extent, if any, of “double recovery”.

How is double recovery fairlyavoided?  (See Shadbolt, supra, perCzutrin J., at para. 46.)  It is generally unfair to allow the payee spouse to reap the benefit of the pension both as an asset and then again as a source of income.  This is particularly true where the payee spouse receives capital assets which she then retains to grow her estate.  The comments of Walker, supra, at p. 233, bear echoing:

It is well-recognized that a borrower should not be compelled to continue monthly loan payments to the lender if the borrower has previously paid the full amount owing.  “Double dipping” is analogous to such a situation and is logically and mathematically indefensible.

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 spouse’s continuing need for support is shown (see Hutchison, supra, at para. 9).  In this appeal, that would include the portion of the pension that was earned following the date of separation and not included in the equalization of net family property.

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, which is not the case in this appeal.”

Boston v. Boston, [2001] 2 SCR 413, 2001 SCC 43 (CanLII) at 61-65

“In determining need, the court is to be guided by the principle that the spouse receiving support is entitled to receive the support that would allow her to maintain the standard of living to which she was accustomed at the time cohabitation ceased. In addition, there is jurisprudence to the effect that a spouse is entitled to an increase in the standard of living such as would have occurred in the normal course of cohabitation: See MacDougall v. MacDougall(1973), 11 R.F.L. 266 (Ont. Sup. Ct.) per Henry J. See also Linton v. Linton(1990), 1 O.R. (3d) 1 (C.A.). At the same time the court must guard against redistributing the payor’s capital in the guise of support.”

Marinangeli v. Marinangeli, (2003), 66 O.R. (3d) 40 (C.A.) at 74

“In accordance with R. v. Guerin, [1984] 2 S.C.R. 335 at paras. 98-99, the limitation period did not start to run until the respondent “discovers the fraud, or until the time when, with reasonable diligence, she ought to have discovered it.”

Anderson v. McWatt, 2016 ONCA 553 at 9

“In his reasons, the motion judge correctly set out the criteria relevant to a finding of contempt of court.  As set out by this court in Prescott Russell Services for Children and Adults v. G.(N.) (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (Ont. C.A.):

A three-prong test is required.  First, the order that was breached must state clearly and equivocally what should and should not be done.  Secondly, the party who disobeys the order must do so deliberately and wilfully.  Thirdly, the evidence must show contempt beyond a reasonable doubt.”

Davydov v. Kondrasheva, 2012 ONCA 488 (CanLII) at 9

“Fresh evidence in child protection matters is contemplated by the Child and Family Services Act, R.S.O. 1990, c. C.11, s. 69(6). The test for admission is set out in Catholic Children’s Aid Society of Metropolitan Toronto v. C. M., 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165 at 190:

(a)  could the evidence have been previously adduced;

(b)   is the evidence highly relevant;

(c)   is the evidence potentially decisive to a best interest determination; and

(d)  is the evidence credible.”

K.F. v. Family and Children’s Services of the Waterloo Region, 2017 ONCA 573 (CanLII) at 4

“A settlement agreement is a contract. Thus, it is subject to the general law of contract regarding offer and acceptance. For a concluded contract to exist, the court must find that the parties: (1) had a mutual intention to create a legally binding contract; and (2) reached agreement on all of the essential terms of the settlement: Bawitko Investments Ltd. v. Kernels Popcorn Ltd., 1991 CanLII 2734 (ON CA), [1991] O.J. No. 495, 79 D.L.R. (4th) 97 (C.A.), at pp. 103-04 D.L.R.

…

A determination as to whether a concluded agreement exists does not depend on an inquiry into the actual state of mind of one of the parties or on the parole evidence of one party’s subjective intention. See Lindsey v. Heron & Co., [1921] O.J. No. 75, 64 D.L.R. 92 (S.C. (App. Div.)). Where, as here, the agreement is in writing, it is to be measured by an objective reading of the language chosen by the parties to reflect their agreement. As was stated by Middleton J.A. in Lindseyat pp. 98-99 D.L.R., quoting Corpus Juris, vol. 13 at 265:

The apparent mutual assent of the parties essential to the formation of a contract, must be gathered from the language employed by them, and the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. It judges his intention by his outward expressions and excludes all questions in regard to his unexpressed intention. If his words or acts, judged by a reasonable standard, manifest an intention to agree in regard to the matter in question, that agreement is established, and it is immaterial what may be the real but unexpressed state of his mind on the subject.”:

Olivieri v. Sherman, 2007 ONCA 491 (CanLII) at 41 & 44

“In my view, the refusal to dismiss or stay the action based on lack of jurisdiction was a final order. See Manos Foods International Inc. v. Coca-Cola Ltd., 1999 CanLII 3022 (ON CA), [1999] O.J. No. 3623 (C.A.), and Abbott et al. v. Collins et al.(2002), 2002 CanLII 41457 (ON CA), 62 O.R. (3d) 99 (C.A.). Where, as here, the effect of the order is that the action is going to proceed in the Superior Court, the consequence is that the defendant is precluded from continuing to dispute the court’s jurisdiction over the subject matter of the action. The order therefore is final on the jurisdiction question.”

Hopkins v. Kay, 2014 ONCA 514 at 9

“The appellant in this case is effectively arguing that although the trial judge properly articulated the test, he exceeded his discretion by concluding in all the circumstances that the financial result of allowing the husband to benefit from the gift was sufficiently shocking to warrant an unequal division of net family property.

In P. (S.) v. R. (M.),1996 CanLII 162 (SCC), [1996] 2 S.C.R. 842, [1996] S.C.J. No. 81, Gonthier J. reiterated, in the context of another family law issue, that a court of appeal should not intervene in discretionary decisions of trial judges unless there is an error of law or an “egregious error of fact”. He quoted [at para. 33] from the Supreme Court’s earlier decision in M. (M.E.) v. L. (P.),1992 CanLII 113 (SCC), [1992] 1 S.C.R. 183, [1992] S.C.J. No. 4, at p. 206 S.C.R.:

In the case at bar, the record contained evidence which justified the trial judge in exercising his discretion to deny the compensatory allowance to the respondent. The Court does not have to decide whether it would have exercised its discretion in the same way. Questioning a trial judge’s findings of fact where there has been no error of law can only encourage appeals, a particularly unfortunate development in family matters. The Court must instead inquire whether the trial judge exercised his discretion judicially.”

Ward v. Ward, 2012 ONCA 462 (CanLII) at 34-35

“The palpable and overriding error standard reiterated by the Supreme Court in Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235 applies when reviewing factual findings even when those findings are based on a written record.  This court has repeatedly stipulated that deference is owed to factual findings made at first instance, even where the appeal is from an entirely written record: see, for example, Waxman v. Waxman, 2004 CanLII 39040 (ON CA), [2004] O.J. No. 1765 (C.A.) and FL Receivables Trust 2002-A v. Cobrand Foods Ltd. 2007 ONCA 425 (CanLII).  Although the explanation offered by the court at para. 46 of Fl Receivable refers to trial decisions, it is equally applicable to motions and usefully recalled:

The principle of appellate deference to a trial judge’s fact-finding and inference-drawing applies even when the entire trial record is in writing.  That is so because the principle of deference is grounded in more than a trial judge’s ability to see and hear the witnesses.  Deference recognizes that even on a written record, the trial judge “lives through” the trial while a court of appeal reviews the record only through the lens of appellate review.  Deference also preserves the integrity of the trial process, maintains the confidence of litigants in the process, reduces the number and length of appeals and therefore, the cost of litigation, and appropriately presumes that trial judges are just as competent as appellate judges to resolve disputes justly.”

Fendelet v. Dohey, 2007 ONCA 475 (CanLII) at 4

“The Family Law Act and the Child Support Guidelines govern the obligations of a parent to pay child support and to contribute to child care expenses. If an adjustment is claimed with respect to amounts that were or should have been paid in the past, the proper remedy is to apply for an adjustment under the applicable legislative scheme. Absent a determination under such scheme, there is simply no entitlement to either a refund for past payments or compensation for payments not received and an action for damages does not therefore lie in relation to such amounts.

Considered in this context, the appellant’s civil action for damages against the respondent is an abuse of process. Allowing such claims to proceed would permit family law litigants to circumvent the statutory scheme governing family law claims and introduce a potentially chaotic duplication of proceedings into an already overburdened family law justice system. See Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), rev’d on other grounds 2002 SCC 63 (CanLII), [2002] 3 S.C.R. 307, in which Finlayson J.A. described the court’s inherent power to invoke the doctrine of abuse of process as follows at para. 31:

The court can still utilize the broader doctrine of abuse of process.  Abuse of process is a discretionary principle that is not limited by any set number of categories.  It is an intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy.”

Cunningham v. Moran, 2011 ONCA 476 (CanLII) at 39-40