Author: dawi

“In the Supreme Court of Canada case of Schreyer, the husband made an assignment into bankruptcy without giving notice to the wife, who had an equalization claim under Manitoba family law legislation. He was also discharged without notice to her, thereby releasing him from her claim. However, the husband owned a farm, which was exempt from execution by creditors under s. 13 of Manitoba’s The Judgments Act, C.C.S.M. c. J10, and could not be disposed of by the trustee in bankruptcy for distribution to creditors.

Speaking for the court, at para. 32, LeBel J. stated:

In such circumstances, the appropriate remedy for a creditor like the appellant would be to apply to the bankruptcy judge under s. 69.4 BIA for leave to pursue a claim against the exempt property. Since this property is beyond the reach of the ordinary creditors, lifting the stay of proceedings cannot prejudice the estate assets available for distribution. In keeping with the wording of s. 69.4(b) BIA, this is why it would be “equitable on other grounds” to make such an order. This procedure would also accord with the policy objective of bankruptcy law of maximizing, under the BIA, returns to the family unit as a whole rather than focussing on the needs of the bankrupt: see, on this point, Hildebrand v. Hildebrand (1999), 13 C.B.R. (4th) 226 (Man. Master), at para. 16; and, generally, on Parliament’s concern for the support of families, Marzetti v. Marzetti, 1994 CanLII 50 (SCC), [1994] 2 S.C.R. 765 (S.C.C.), at pp. 800-01.

The appellant submits that LeBel J.’s statement of the law applies only to an equalization payment, and not to a custody costs award. The argument hinges on what she submits is a necessary link between a lift-stay order and a spouse’s ability, before bankruptcy, to obtain an order granting a proprietary interest in the other spouse’s property under s. 9(1) of Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”) when applying for an order for an equalization payment. Such a proprietary order is not available to enforce a costs award.

Sections 9(1)(b) and (d) of the FLA provide:

9 (1) In an application under section 7, the court may order,

…

(b) that security, including a charge on property, be given for the performance of an obligation imposed by the order;

…

(d) that, if appropriate to satisfy an obligation imposed by the order,

(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or

(ii) any property be partitioned or sold.

Section 5 of the FLA establishes entitlement to an equalization payment between spouses. Section 7 provides the mechanism to apply to court to determine any matter respecting the entitlement under s. 5.

In Schreyer, LeBel J., at para. 25, explained that the only way Ms. Schreyer’s equalization claim would not have been extinguished by Mr. Schreyer’s discharge from bankruptcy was by obtaining an order lifting the stay “so that she could seek a proprietary remedy under s. 17 [of The Family Property Act of Manitoba].” That section is to the same effect as s. 9(1) of the Ontario FLA. The appellant submits that the lift-stay remedy is therefore only applicable where the creditor spouse is then able to obtain a proprietary interest in exempt assets in pursuit of an equalization claim.

I do not accept this submission…”

Fioritto v. Wiggins, 2017 ONCA 765 at 18-24

“The statutory provisions governing appeals in family law proceedings are a source of much confusion. In Christodoulou v. Christodoulou, 2010 ONCA 93 (CanLII), 75 R.F.L. (6th) 266, MacPherson J.A. set out the appropriate interpretation of s. 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), noting the inconsistency and arbitrariness inherent in the current system of family law appeal routes. I echo MacPherson J.A.’s remarks at paras. 35 and 36 in saying that the current appeal routes are both confusing and inequitable. I add my voice to those encouraging legislative reform in this area.

As discussed in Christodoulou, s. 21.9.1 of the CJA together with s. 73 of the CLRA provide that the appeal of an order under Part III of the CLRA, excepting ss. 59 and 60, made at a Family Court branch of the Superior Court lies to the Divisional Court. The order under appeal in this case was made under s. 23 of the CLRA, which lies under Part III of that Act.

…

Under the CLRA, all regular child custody orders made under Part III of the CLRA at a Family Court branch location, with the explicit exception of those made under ss. 59 and 60, are appealed under s. 21.9.1 of the CJA. Therefore, an appeal from them lies to the Divisional Court.”

Marchildon v. Beitz, 2012 ONCA 668 (CanLII) at 4, 5 and 11

“When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent. See, for example, Hanson, supra, and Cholodniuk v. Sears (2001), 14 R.F.L. (5th) 9 (Sask. Q.B.). I accept those factors as appropriate and relevant considerations and would add such matters as the availability of job opportunities, the number of hours that could be worked in light of the parent’s overall obligations including educational demands and the hourly rate that the parent could reasonably be expected to obtain.

When imputing income, the court must consider the amount that can be earned if a person is working to capacity while pursuing a reasonable educational objective. How is a court to decide that when, typically, there is little information provided on what the parent could earn by way of part-time or summer employment? If the parent does not provide the court with adequate information on the types of jobs available, the hourly rates for such jobs and the number of hours that could be worked, the court can consider the parent’s previous earning history and impute an appropriate percentage thereof.”

Drygala v. Pauli, 2002 CarswellOnt 3228 at 45-46.

“If the child is not actually enrolled in a full-time program of education by the time their first educational program ends, but is accepted into a further program shortly thereafter, additional legal questions arise: First, can eligibility for child support be revived after it has ended? Second, if eligibility can revive, but there is a gap between the time of enrolment in the subsequent program and the actual commencement of the program, does the eligibility resume as of the date of enrolment or as of the date when classes actually begin? This is an important issue in cases where the period from the time of enrolment until the commencement of the program is lengthy.

Dealing with the first question, a child who loses their entitlement to support by quitting school may regain their entitlement at a later date by meeting the test under the applicable legislation (Lawless v. Asaro, 2003 CarswellOnt 2416(Ont. S.C.J.); Fergusson v. Kurylo, 2005 CarswellSask 167 (Sask. Q.B.); Haley v. Haley, 2008 CarswellOnt 369 (Ont. S.C.J.); Vohra, Supra.) Much of the case-law dealing with this issue has been decided under the Divorce Act, which sets out different criteria for child support eligibility in cases involving children.  However, cases decided under the Family Law Acthave also established that entitlement to child support can be revived when a child of the relationship resumes their educational pursuits after taking time off from their studies (Vohra, Supra.; F. (R.L.) v. F. (S.)(1996), 26 R.F.L. (4th) 392 (Ont. Gen. Div.); Murchison v. Farmer, 2013 CarswellOnt 16632(Ont. C.J.)).   

As I previously held in Radford v. Nunn, 2011 ONSC 7276 (S.C.J.), the test for determining whether there has been a revival of child support entitlement under the Family Law Actis whether the evidence considered as a whole leads to the conclusion that the child achieved a status of true and meaningful independence from their parents during the time when they were out of school. In determining this issue, the factors to consider include:

1. The amount of time that the child took off from school;
2. Whether the time off was intended to be temporary for the purpose of saving money for school or for any other purpose aimed at improving the child’s life;
3. Whether the child required a period of time to devise a plan for their future;
4. Whether the child was exploring educational alternatives during the time in question;
5. Whether the child was in fact able to achieve any degree of independence from their parents during the time off school; and
6. The child’s living arrangements while they were independent, and in particular whether they were cohabiting in a common law relationship. (Radford, Ibid; MacLean, Supra.)

In general, the longer the time that elapses between the point when entitlement ended and when the moving party seeks to have it reinstated, the more onerous the burden will be on the moving party (Radford, Ibid.; Lawless, Supra.).

I turn to the question of whether a revived entitlement commences as of the date of enrolment in full-time studies or the date when the studies actually begin. In my view, it is open to the court to determine that eligibility for support resumes as of the date of enrolment, provided that the following conditions are met:

1. The child was diligent and timely in planning and applying for the further educational programming, and they became enrolled in the program within a reasonable time after their initial program ended;
2. The child was ready and willing to commence the subsequent program at the time of enrolment, and did everything within their control to resume their studies as soon as possible after the completion of the first program (Vohra, Supra.);
3. The child actually began attending the subsequent program at the earliest possible time that the program was scheduled to begin following the completion of the first program;
4. The child remained dependent on their parent and had not withdrawn from parental control at the time of enrolment; and
5. The subsequent program was part of a reasonable educational plan, and the child is used the period from the time of enrolment until the commencement of classes to further the implementation of the plan in a meaningful way.

If these criteria are satisfied, the temporary break in the child’s studies is relevant not to the threshold issue of eligibility for support, but rather to the appropriate approach for the support analysis under section 3(2) of the Guidelinesand the extent to which the child should be required to contribute to their own support.”

Aubert v. Cipriani, 2015 ONSC 6103 at 28-31

“In preparing reasons in custody cases, a trial judge is expected to consider each of these factors in light of the evidence adduced at trial; however, this is not to say that he or she is obligated to discuss every piece of evidence in detail, or at all, when explaining his or her reasons for awarding custody to one person over another.  This would indeed be an unreasonable requirement at the end of a 26-day trial.  Because of this, trial judges might sometimes appear to stress one factor over another and, in fact, it may be said that this is inevitable in custody cases which are heavily dependant on the particular factual circumstances at issue.  This situation does not open the door to a redetermination of the facts by the Court of Appeal.

…

As I have stated, the Court of Appeal was incorrect to imply that Hickey, supra, and the narrow scope of appellate review it advocates are not applicable to custodial determinations where the best interests of the child come into play.  Its reasoning cannot be accepted.  First, finality is not merely a social interest; rather, it is particularly important for the parties and children involved in custodial disputes.  A child should not be unsure of his or her home for four years, as in this case.  Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge’s decision.  Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts.  Custody and access decisions are inherently exercises in discretion.  Case-by-case consideration of the unique circumstances of each child is the hallmark of the process.  This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child.

…

As indicated in both Gordonand Hickey, the approach to appellate review requires an indication of a material error.  If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of the factors.  In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirected himself with respect to relevant evidence.  This being said, I repeat that omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial.  As stated in Van Mol (Guardian ad Litem of) v. Ashmore(1999), 1999 BCCA 6 (CanLII), 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion.  Without this reasoned belief, the appellate court cannot reconsider the evidence.”

Van de Perre v. Edwards, [2001] 2 SCR 1014, 2001 SCC 60 (CanLII) at 10, 13 & 15

“In some cases, there are complicating factors that must be considered before a court applies the SSAG wholesale. Complicating factors that courts ought to consider include variations based on the post-separation income increase of the payor, or situations with second families. In such cases, the court must conduct an analysis of the facts of the specific case to assess whether the SSAG ranges are appropriate.”

Gray v. Gray, 2014 ONCA 659 at 45

“Whether or not to grant an adjournment is a matter for judicial discretion. The scope for appellate review is limited to whether the discretion is exercised judicially on proper principles, after considering all relevant factors: Khimji v. Dhanani, [2004] 69 O.R. (3d) 790 (C.A.), at para. 20, per Laskin J.A. in dissent, but not on this point.”

Estrada v. Estrada, 2016 ONCA 697 at 2

“In Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, the Supreme Court of Canada indicated that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong.”

Vynnyk v. Baisa, 2008 ONCA 657 (CanLII) at 4

September 18 – Varying Support Orders

“The test for varying a support order was established by the Supreme Court of Canada in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670.[9]  A variation motion is not to be treated as though it were an appeal of the original order.  It is to be granted only if there is a material change in circumstances, that is,

[A] change, such that, if known at the time, would likely have resulted in different terms.  The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.”

Bemrose v. Fetter,2007 ONCA 637 (CanLII) at 67

“In sum, it is by no means certain that permitting civil actions against the custodial parents can be said to be in the best interests of the child, whether this be by creating a tort or recognizing a fiduciary relationship arising out of a court order. Resort even to fines and imprisonment, which is permitted by the Act, has been described as not “entirely appropriate”; see James G. McLeod, “Annotation” to O’Byrne v. Koresec(1986), 1986 CanLII 1315 (BC SC), 2 R.F.L. (3d) 104, at p. 105. That is because these may encroach on the resources of the custodial parent and because the child may suffer from the knowledge that one parent has taken such drastic action against the other. This applies, and in some respects with greater force to a legal action. Damages can impose a far greater financial burden than the fine of up to $1,000 which may be imposed under the Act (s. 39(1)). Furthermore, though the imprisonment of one parent at the behest of the other may be damaging to the child, litigation by one against the other over a protracted period may well be even more damaging.

 …For these reasons, I cannot accept that a breach of the statutorily authorized order in the present case gives rise to a fiduciary relationship on which a cause of action can be grounded.”

Frame v. Smith, [1987] 2 SCR 99, 1987 CanLII 74 (SCC) at 20-21