Author: dawi

“As I have said, under the Guidelines, child support is calculated on the payor’s total income for income tax purposes. Lifestyle is clearly not a type of income, receipt or benefit included in total income. Canadians are not taxed on lifestyle.

Equally clearly, however, a payor’s lifestyle often will be relevant to whether a court may impute income under s. 19(1) of the Guidelines. For example, it may be apparent from lifestyle that a payor is receiving undeclared income because he or she has historically worked, lives comfortably with the usual trappings, and yet declares minimal income for tax or child support purposes. In such a case, the recipient who calls evidence of the payor’s lifestyle will ask the court to draw the reasonable inference that the payor must have a greater income than he or she has disclosed.

This occurred in Davids v. Davids, [1998] O.J. No. 2859, 66 O.T.C. 321 (Gen. Div.), where a chartered accountant was able to demonstrate from the husband’s financial data that he was receiving income from a source he could or would not explain. Given the absence of any explanation, the court drew an inference that the husband’s earnings were more than reported. Similarly, in Biamonte v. Biamonte, [1998] O.J. No. 541, 36 R.F.L. (4th) 349 (Gen. Div.), based on evidence of the parties’ lifestyle, income was imputed to a husband who was shown to have a cash component to his restaurant business in addition to his declared income. While these cases demonstrate that a party’s lifestyle can inform the question of whether the payor has diverted income, or underreported income, lifestyle is not a stand-alone ground for imputing income.

On this issue, I conclude that lifestyle is not income, but rather evidence from which an inference may be drawn that the payor has undisclosed income that may be imputed for the purpose of determining child support.”

Bak v. Dobell, 2007 ONCA 304 (CanLII) at 40-43

“The appellant submits that the trial judge was required to make a finding of custody and that his failure to do so constitutes an error of law. 

The Ontario legislation does not require the trial judge to make an order for custody. Section 28(1)(a) of the CLRA is permissive, not mandatory: The court … by order may grant the custody of or access to the child to one or more persons (emphasis added).

For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.

It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody.” It was also in keeping with the well-recognized view that the word “custody” denotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.”

M. v. F., 2015 ONCA 277 (CanLII) at 37-40

“The ODSPA (Ontario Disability Support Program Act) recognizes the right of disabled adults to apply in their own right for income support.  This is a fundamentally important element of the statute.  It furthers one of the program’s underlying purposes:  to effectively serve persons with disabilities who need assistance (see s. 1(c) of the ODSPA). 

Although Jocelyn lives with her mother and her mother receives child support, Jocelyn has an independent right under the ODSPA and the Regulation to apply for income support.  The Director recognized her right to do so because Jocelyn was assessed as an independent adult.  Thus, for the purpose of calculating her entitlement to income support, she alone is a “benefit unit”.  Her mother is not included in that unit.  Characterizing child support paid to her mother as income to Jocelyn is inconsistent with this important element of the statutory scheme.  This inconsistency is evident from an examination of the features of the child support payments to Jocelyn’s mother:

•      The child support order itself stipulates that the support is paid to Jocelyn’s mother, not to Jocelyn;

•        The order does not say how Jocelyn’s mother is to spend the money.  Thus, although she voluntarily uses the money for disability related expenses, the order does not require her to do so;

•        Jocelyn’s mother is not required to account for how she spends the money;

•       Jocelyn’s mother must report the child support as income on her personal income tax return.  Jocelyn does not report the payments on her own return;

•       The child support payments are tied to Jocelyn’s mother.  They end if she dies;

•        Jocelyn is not a party to the court order and has no legal right to enforce it.

These features show that, in her mother’s hands, the child support payments are not Jocelyn’s income.  Jocelyn has no legal entitlement to them, no ability to access them, and no control over how they are spent.  Her mother could use the child support to repair the roof, pay a hydro bill or buy a new television set.  Although these expenditures might be said to benefit Jocelyn indirectly, they are not the kind of expenditures that would be characterized as income attributable to Jocelyn under s. 37(1) of the Regulation.  They are not payments to her or on her behalf or, at a practical level, even for her benefit. 

In short, although the payment of child support is a duty owed to Jocelyn, it does not necessarily follow that all, or even any portion of it can properly be characterized as payments to her or on her behalf or for her benefit. To include child support as income under the Regulation could deprive applicants of disability benefits under the ODSPA, even though none of the child support is used for the applicant’s benefit. 

Ontario (Disability Support Program) v. Ansell, 2011 ONCA 309 (CanLII) at 27-30

“The Notice to the Profession issued by the Chief Justice provides that urgent matters may include matters related to the safety of a parent or a child, or urgent issues related to the wellbeing of a child.

In Ribeiro v. Wright, 2020 ONSC 1829, released March 24, 2020, Pazaratz J. set out principles to aid in the determination of urgency with respect to parenting issues in this difficult time. He held that in most situations, there is a presumption that existing parenting arrangements will continue, subject to modifications to ensure that COVID-19 precautions are adhered to, including social distancing. Specific circumstances in a family, such as the need to self-isolate, personal risk factors of a parent, could necessitate restrictions on parenting time. He stressed that would be “zero tolerance” for a parent who recklessly exposes a child to any COVID-19 risk.

Pazaratz J. also emphasized that no matter how difficult the challenge, or what modifications or restrictions may be appropriate, we must find ways to maintain important parental relationships, above all in a safe way.

In Thomas v. Wohleber, 2020 ONSC 1965, at paragraph 38, Kurz J. provided guidance on what constitutes urgency at the present time:

1.    The concern must be immediate; that is one that cannot await resolution at a later date;

2.    The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;

3.    The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;

4.     It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

In my view, applying the Notice to the Profession and the caselaw, the motion brought by the mother is urgent. On Ms. Tomkins’ evidence, the children were removed from her care and she does not know where they are. She says that Mr. Che has not responded to texts for over one month now. Ms. Tomkins’ concern is immediate and serious. If Mr. Che has concerns about Ms. Tomkins’ admitted alcohol use, a plan must be developed having regard to that issue – it does not give license to unilaterally withhold the children with no information as to their whereabouts.

Tomkins v. Che, 2020 ONSC 2424 (CanLII) at 10-14

“…I conclude that if the court finds that reduced ability to pay due to retirement is a material change in circumstances, and the support payor’s pension has been accounted for in the asset distribution to the support recipient, the recipient needs to make reasonable use of those assets to generate income when the retirement pension goes into pay.” 

Walts v Walts, 2016 ONSC 4777 (CanLII) at 23

“Although the issue was not raised, retaining one’s own professional as an expert to provide “evidence in relation to a case under the [Family Law Rules]”, as opposed to a “participant expert”, (see Westerhof v. Gee, [2015] O.J. No. 147 (C.A.) at para 6) must be strongly discouraged. Experts are required to provide evidence in regard to issues before the court “…that is fair, neutral and non-partisan and within the expert’s area of expertise.”: ibid at 35.  It is difficult to meet that standard when the expert’s firm also provides services to a party or his non-arm’s length corporation.” 

Cameron v. Cameron, 2018 ONSC 2456 (CanLII) at 100

“The father contends that the application judge was right to apply the Hague Convention framework. He points to various lower court decisions in support of his argument that the principles governing applications under the Hague Convention and s.40 of the CLRA are entirely interchangeable: See e.g. Bolla v. Swart, 2017 ONSC 1488, at para. 38; Moussa v. Sundhu, 2018 ONCJ 284, 11 R.F.L. (8^th) 497, at para. 32.

I do not accept the proposition that a s. 40 CLRA application is indistinguishable from a Hague Convention application.

Recall the wording of s. 40 of the CLRA that is relevant to this appeal:  

Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; …

may do any one or more of the following …. [Emphasis added.]

The available remedies are: (1) making interim custody or access orders in the best interests of the child; (2) staying the application on conditions, including that a similar proceeding be promptly commenced in another jurisdiction; and (3) ordering the return of the child “to such place as the court considers appropriate”.

Recall, also, that under the Hague Convention, the court must determine the child’s habitual residence immediately before the alleged wrongful removal or retention and, then, unless a specified exception applies, order the child’s return to the state of the habitual residence.

Accordingly, a plain reading of s. 40 of the CLRA and of the relevant Articles under the Hague Convention reveal two fundamental differences between the two types of return applications:

(1) The determination of wrongful removal or retention is not tied to the concept of “habitual residence” under s. 40 of the CLRA. In fact, s. 40 contains no reference at all to the term “habitual residence”.

(2) If the court is satisfied that a child “has been wrongfully removed to or is being wrongfully retained in Ontario” under s. 40 of the CLRA, unlike under the Hague Convention, the court is given broad powers to make orders, including staying the application on conditions. This is in direct contrast to the Hague Convention which provides that, once there has been a determination of wrongful removal, subject to specified exceptions, the child must be returned to the state in which he or she was habitually resident.   

While considerations taken into account under Hague Convention and s. 40 CLRA applications will often overlap, it is important not to lose sight of the fundamental differences between the applications. The court’s ability to exercise a broader range of powers under s. 40 is particularly important.

There is good reason to distinguish between a return application under the Hague Convention and under s. 40 of the CLRA.

In relation to Hague Convention matters, it is widely recognized that, between contracting states, the country of habitual residence is the most appropriate location to determine custody and access issues. Accordingly, the purpose of the Hague Convention is to ensure that, between signatories to the Convention, there is “the prompt return of wrongfully removed or retained children to their country of habitual residence”: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 24. The return order is not a custody determination, but an order designed to “restore the status quo” existing before the wrongful removal or retention and “to deprive the ‘wrongful’ parent of any advantage that might otherwise be gained by the abduction”: Balev, at para. 24. 

The fact that a state is a signatory to the Hague Convention provides comfort about how custody and access matters will be dealt with by that state. By becoming a signatory to the Hague Convention, states agree to follow the reciprocal obligations as set out in the Convention. By virtue of signing the Hague Convention, signatories warrant that they are:

[f]irmly convinced that the interests of children are of paramount importance in matters relating to their custody. [Emphasis added.]

Given the paramountcy of the child’s best interests in custody and access decisions under the CLRA, the warranty that Hague Convention signatories also treat the best interests of children as of supreme importance is critical.

When considering whether to return a child to a non-signatory state, there is no basis to assume that the receiving state will determine custody and access issues based on the child’s best interests. As noted by Laskin J.A. in Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 61, “[s]ome non-signatory countries may do so; others may not.” By way of example, in this very case, there is a significant dispute between the parents as to whether, in the U.A.E., considerations other than the child’s best interests might prevail.” 

Geliedan v. Rawdah, 2020 ONCA 254 (CanLII) at 29-38

“An appeal is not an opportunity to reargue a motion or trial. The decision of the original motions judge or trier of fact remains unless the appellant can show an error of law or fact was committed.

When considering potential errors of law, the standard of review is one of the correctness. Where an error of law is found, the appellate court is free to replace the opinion of the trial judge with its own: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para 8.

When considering potential errors of fact, the standard of review is that an appeal will not be granted unless it can be established that the trial judge made a palpable and overriding error. Absent such a finding, deference is given to the trier of fact who was able to observe witnesses and hear the evidence first hand: Housen, at para. 10.

A palpable and overriding error is where a finding of fact is clearly wrong, unreasonable or unsupported by the evidence and the error affected the result of the motion or trial. This applies whether there is direct proof of the fact in issue or indirect proof of facts from which the fact in issue has been inferred: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 53-56.

Matters of mixed fact and law lie along a spectrum. If there is an extricable legal principle, then that legal question will be reviewed on a correctness basis.  Otherwise, if there is no extricable legal error, the standard of palpable and overriding error applies: Housen, at para. 36.

Trial judges are entitled to considerable deference when their decisions are reviewed. This promotes finality in family law matters and recognizes the importance of the appreciation of facts by a trial judge. While an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error of law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at paras. 10, 12. This principle is equally applicable to orders concerning child custody: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 12.”

Gegus v. Bilodeau, 2020 ONSC 2242 (CanLII) at 3-8

“The conflict here began when the parties separated. It continued throughout the litigation, and it was considered and anticipated by Kaufman J. A continuation of the conflict does not establish a material change in circumstances. This court confirmed this principle in Litman v. Sherman, 2008 ONCA 485, 238 O.A.C. 164, when it found no reason to re-open custody in a situation where “conflict between the parties was, regrettably, the norm”. At paras. 36-37, the court said: 

According to the trial judge, “since the birth of their child, the parties have been altogether incapable of cooperating with one another in order to raise [the child].” This finding is well supported by the evidence. The parties’ willingness to work through a parenting coordinator does not detract from that finding; rather it reinforces it, given one was necessary to begin with and given this regime quickly deteriorated and proved unworkable. It follows that … the conflict between the parties did not constitute either a change or a situation that could not have been foreseen by them at the time of [the original] order.”

Goldman v. Kudelya, 2017 ONCA 300 (CanLII) at 41

“The Supreme Court of Canada in Sattva Capital Corp. v. Creston Moly Corp. 2014 SCC 53 (CanLII), [2014] 2 S.C.R. 633 re-examined the principles regarding contractual interpretation.  The parties did not provide me with Sattva at first instance and I therefore asked for further submissions regarding same. At paras. 47 and 48 of Sattva, the court stated:

Regarding the first development, the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding” (Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21 (CanLII), [2006] 1 S.C.R. 744, at para. 27, per LeBel J.; see also Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4 (CanLII), [2010] 1 S.C.R. 69, at paras. 64-65, per Cromwell J.). To do so, a decision-maker 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. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning:

No contracts are made in a vacuum: there is always a setting in which they have to be placed… In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.

(Reardon Smith Line, at p. 574, per Lord Wilberforce)

The meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement (see Moore Realty Inc. v. Manitoba Motor League, 2003 MBCA 71 (CanLII), 173 Man. R. (2d) 300, at para. 15, per Hamilton J.A.; see also Hall, at p. 22; and McCamus, at pp. 749-50). As stated by Lord Hoffmann in Investors Compensation Scheme Ltd. v. West Bromwich Building Society, [1998] 1 All E.R. 98 (H.L.):

The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. [p. 115] [Emphasis added.]

At paragraphs 56 to 58 of the same decision, the court also stated:

The Role and Nature of the “Surrounding Circumstances”

I now turn to the role of the surrounding circumstances in contractual interpretation and the nature of the evidence that can be considered. The discussion here is limited to the common law approach to contractual interpretation; it does not seek to apply to or alter the law of contractual interpretation governed by the Civil Code of Québec.

While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement (Hayes Forest Services, at para. 14; and Hall, at p. 30). The goal of examining such evidence is to deepen a decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract (Hall, at pp. 15 and 30-32). While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement (Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular Inc. (1997),1997 CanLII 4085 (BC CA), 101 B.C.A.C. 62).

The nature of the evidence that can be relied upon under the rubric of “surrounding circumstances” will necessarily vary from case to case. It does, however, have its limits. It should consist only of objective evidence of the background facts at the time of the execution of the contract (King, at paras. 66 and 70), that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. Subject to these requirements and the parol evidence rule discussed below, this includes, in the words of Lord Hoffmann, “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man” (Investors Compensation Scheme, at p. 114). Whether something was or reasonably ought to have been within the common knowledge of the parties at the time of execution of the contract is a question of fact.  [Emphasis added.]”

Birnie v. Birnie, 2019 ONSC 2152 (CanLII) at 31-32