“Aproper construction of s. 4 requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced with those of fairness, flexibility and recognition of the actual “condition, means, needs and other circumstances of the children” on the other.  Furthermore, this balancing must take into account the ordinary meaning of the word “inappropriate”, as well as its use elsewhere in the statute.  In my opinion, the plain language of s. 4 is consistent with such an interpretation.  Accordingly, the word “inappropriate” in this section must be broadly defined to mean “unsuitable” rather than merely “inadequate”.  Courts thus have the discretion to both increase and reduce the amount of child support prescribed by the strict application of the Guidelines in cases where the paying parent has an annual income exceeding $150,000.  I would note that the respondent did not take issue with this interpretation in either her written or oral submissions.

I add one final comment.  As noted above, Abella J.A. was concerned with the differential treatment of children.  In my respectful opinion, a broad interpretation of the word “inappropriate” in s. 4 does not deny children of high income parents any of the intended benefits of the Guidelines.  The plain wording of s. 4 (b)(i) dictates that these children can predictably and consistently expect to receive, at a minimum, the Table amount for the first $150,000 of their parents’ income.  They can further expect that a fair additional amount will be awarded for that portion of income which exceeds $150,000.  Indeed, even this latter figure lends itself to a degree of predictability and consistency in that the closer the paying parent’s income is to the $150,000 threshold, the more likely it is that the Table amount will be awarded.  In my opinion, child support undeniably involves some form of wealth transfer to the children and will often produce an indirect benefit to the custodial parent.  However, even though the Guidelines have their own stated objectives, they have not displaced the Divorce Act, which clearly dictates that maintenance of the children, rather than household equalization or spousal support, is the objective of child support payments.  Section 26.1(2) of the Act states that “[t]he guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation” (emphasis added).  While standard of living may be a consideration in assessing need, at a certain point, support payments will meet even a wealthy child’s reasonable needs.  In some cases, courts may conclude that the applicable Guideline figure is so in excess of the children’s reasonable needs that it must be considered to be a functional wealth transfer to a parent or de facto spousal support.  I wholly agree with the sentiment of Abella J.A. that courts should not be too quick to find that the Guideline figures enter the realm of wealth transfers or spousal support.  But courts cannot ignore the reasonable needs of the children in the particular context of the case as this is a factor Parliament chose to expressly include in s. 4(b)(ii) of the Guidelines.  Need, therefore, is but one of the factors courts must consider in assessing whether Table amounts are inappropriate under s. 4.  In order to recognize that the objective of child support is the maintenance of children, as well as to implement the fairness and flexibility components of the Guidelines’ objectives, courts must therefore have the discretion to remedy situations where Table amounts are so in excess of the children’s reasonable needs so as no longer to qualify as child support.  This is only possible if the word “inappropriate” in s. 4 is interpreted to mean “unsuitable” rather than merely “inadequate”.

2. Establishing Inappropriateness

When child support is calculated under s. 4(b), the express wording of s. 4(b)(i) does not permit deviation from the Guideline figures for the first $150,000 of the paying parent’s income.  Of course, the application of other sections of the Guidelines, such as the s. 10 undue hardship provisions and the s. 7 special expense provisions, may subsequently permit deviation from this figure.  For that portion of the paying parent’s income over $150,000, the strict Guidelines amount is immediately open to review; under s. 4 (b)(ii) any amount attributable to income above the $150,000 threshold can be reduced or increased by a court if it is of the opinion that the amount is inappropriate having regard to the condition, means, needs and other circumstances of the children, and the financial abilities of the spouses.  Nevertheless, based on the ordinary meaning of the provision, its context in the overall child support scheme, and the purposes of the Guidelines, I find that in all cases Parliament intended that there be a presumption in favour of the Table amounts.  I agree with Abella J.A. that the words “Presumptive Rule” found in the marginal note beside s. 3 of the Guidelines are relevant in this regard.  Accordingly, the Guideline figures can only be increased or reduced under s. 4 if the party seeking such a deviation has rebutted the presumption that the applicable Table amount is appropriate.  Counsel for the appellant conceded this point in oral argument.

The recognition of a presumption in favour of the Guideline figures does not compel a party seeking a deviation from this amount to testify or call evidence.  No unfavourable conclusions should be drawn from this decision.  Indeed, in some cases, such a party may not be able to provide relevant evidence.  Parties seeking deviations from the Table amounts may simply choose to question the evidence of the opposing party.  Whatever tactics are used, the evidence in its entirety must be sufficient to raise a concern that the applicable Table amount is inappropriate. To this end,  I agree with Lysyk J. of the British Columbia Supreme Court in Shiels v. Shiels, 1997 CanLII 767 (BC SC), [1997] B.C.J. No. 1924 (QL), at para. 27, that there must be “clear and compelling evidence” for departing from the Guideline figures.

While there must be an “articulable reason” for displacing the Guideline figures (see, for example, Plester v. Plester(1998), 1998 CanLII 6657 (BC SC), 56 B.C.L.R. (3d) 352 (S.C.), at para. 153), relevant factors will, of course, differ from case to case.  I note, however, my agreement with MacKenzie J. in Plester,supra, as well as Cameron J.A. in Dergousoff,supra, that the factors relevant to determining appropriateness which Parliament expressly listed in s. 4(b)(ii), that is, the condition, means, needs and other circumstances of the children, and the financial abilities of both spouses, are likewise relevant to the initial determination of inappropriateness.  Only after examining all of the circumstances of the case, including the factors expressly listed in s. 4(b)(ii), should courts find Table amounts to be inappropriate and craft more suitable child support awards.

The task of determining whether Guideline figures are inappropriate under s. 4 must be undertaken by courts armed with all of the necessary information.  Given that, as I explained above, children’s needs are one of the factors to be considered in assessing appropriateness under s. 4, child expense budgets which provide some evidence, albeit imperfect, of the children’s needs will often be required in contested cases where the paying parent earns more than $150,000 per annum.  This is consistent with s. 21(4) of the Guidelines, which requires custodial parents to provide certain financial information within a specified time after learning that the paying parent’s annual income exceeds $150,000.  As with the mandatory s. 21(4) financial disclosure, the special circumstances of high income parents may also dictate that custodial parents provide child expense budgets.  However, unlike the forms of financial disclosure expressly required under s. 21(4), Parliament did not choose to create a blanket rule requiring custodial parents to produce child expense budgets in all cases where s. 4 of the Guidelines is invoked.  I would therefore leave it to the discretion and experience of trial judges to determine on a case-by-case basis whether such budgets will be required.  Indeed, in cases where the paying parent’s income does not greatly exceed the $150,000 threshold, the trial judge may conclude that the added cost and delay of requiring a budget cannot be justified.”

Francis v. Baker, [1999] 3 SCR 250, 1999 CanLII 659 (SCC) at 40-45

“Rule 24(10) of the Family Law Rulesprovides that the judge who deals with a step in a case shall decide who, if anyone, is entitled to costs. If a party who has served an offer to settle the case as a whole wishes that fact taken into consideration in relation to a particular step, it is incumbent on that party to raise that issue with the judge who deals with that step. In this case, various steps were taken (e.g. motions, conferences) in relation to which either there was an endorsement that there be no order as to costs or the issue of costs was not addressed. In the absence of a specific order for costs in favour of the respondent, the trial judge should have disallowed costs claimed by the respondent in relation to such steps.”

Islam v. Rahman, 2007 ONCA 622 at 2

“The leading case in Ontario on the use of the SSAG isFisher v. Fisher, 2008 ONCA 11 (CanLII), 88 O.R. (3d) 241, 232 O.A.C. 213, 288 D.L.R. (4th) 513, 47 R.F.L. (6th) 235, [2008] O.J. No. 38, 2008 Cars­well­Ont 43 (Ont. C.A.).  In that case, the Court of Appeal considered the applicability of the SSAG, when the calculations are raised by the parties before the trial judge who is charged with the issue of deciding spousal support.  At paragraph [103], the court stated:

[103]   In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result.  This is no different than a trial court distinguishing a significant authority relied upon by a party.

In other words, while the Court of Appeal stamped its imprimatur of “significant authority” on the SSAG, the Court was clear that the SSAG are not to be treated as binding authority.

In any event, the SSAG cannot be used to establish an entitlement to support.  Rather it is a “useful tool” in calculating quantum, once entitlement has been established.  See Eastwood v. Eastwood, 2006 NBQB 413, 307 N.B.R. (2d) 210, 795 A.P.R. 210, 34 R.F.L. (6th) 408, [2006] N.B.J. No. 513, 2006 Cars­well­NB 655 (N.B.Q.B., Fam. Div.); and Yemchuk v. Yemchuk, 2005 BCCA 406 (CanLII), 215 B.C.A.C. 193, 44 B.C.L.R. (4th) 77, 355 W.A.C. 193, [2005] 10 W.W.R. 634, 257 D.L.R. (4th) 476, 16 R.F.L. (6th) 430, [2005] B.C.J. No. 1748, 2005 Cars­well­BC 1881 (B.C.C.A.).”

Dawson-Fisher v. Fisher, 2011 ONCJ 489 (CanLII) at 12-13

“I find the arguments set out by the critics of the interventionist approach compelling. The intervention of the Ontario Court of Justice in the face of private mediation/arbitration agreements should be limited to its statutory jurisdiction under sections 6 and 7 of the Act. The court should be loathe to intervene in the mediation/arbitration process where that process has begun and there is a mechanism in place to make decisions about a child’s best interests in a timely manner. It is difficult to imagine a circumstance where it will be appropriate for a judge of the Ontario Court of Justice to substitute its own decision for an Award that has just been made by an arbitrator, as requested by the father. Here, the parties reached an agreement that the best interests of the child would be determined though the mediation/arbitration process – an agreement that they bargained in good faith. If the father feels that the process or the Award is flawed, he has a statutory pathway to follow for court intervention. He has not, for the most part, followed that pathway. The parties should be held to their bargain.”

McAlister v. Gallant, 2012 ONCJ 565 (CanLII) at 68

“J.B. seeks leave to intervene as an added party on the appeal. The mother opposes the motion. A motion of this kind is highly unusual in a custody dispute. Typically, if the child is to be heard, an application would be made for the appointment of the Children’s Lawyer to represent the child. That was not done here, and we can only presume that the reason was tactical.

A motion for leave to intervene as an added party is governed by rule 13.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:

13.01(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

J.B. satisfies all three elements of rule 13.01(1), any one of which would be sufficient. He obviously has an interest in the subject matter of the proceeding: his custody. He may be adversely affected by the judgment of the trial judge or of this court in the sense that he may object to the terms of his custody and may not obey one or more of those terms. Finally, the questions of fact and law in the proceeding are common to his parents and to him.

However, even if one or more of the elements of rule 13.01(1) is made out, the court still has discretion to refuse to make the intervention order. Ordinarily, in a custody case we would think an order permitting a child who is the subject of the dispute to be added as a party would rarely be made.

But this is not an ordinary case. In our view, granting the intervention motion is justified for two reasons. First, J.B. is [page 800] now 16 years of age. Even accepting the expert evidence at trial that he has the emotional maturity of a 13 year old, he is an intelligent young man and has reached the age where his voice is entitled to be heard by this court. Moreover, the trial judge’s order has the potential to dramatically change J.B.’s life. In the light of that potential, he ought to be able to participate in the proceeding that will determine with whom and under what terms he lives, independently of either the alienating or alienated parent.

Second, the trial judge’s order raises important and difficult issues. We think it would benefit the panel to hear J.B.’s perspective on these issues through the submissions of his own counsel. We therefore grant the motion to intervene, but on terms, which we discuss below.”

S.G.B. v. S.J.L.,2010 ONCA 578 (CanLII) at 12-17

“This court has addressed the issue of non-compliance with family law judgments pending appeal in the cases of Brophy v. Brophy (2004), 45 R.F.L. (5th) 56 (C.A.); Dickie v. Dickie (2006), 78 O.R. (3d) 1 (C.A.), rev’d 2007 SCC 15, [2007] 1 S.C.R. 346 approving dissenting reasons of Laskin J.A. on this point; and Murphy v. Murphy, 2015 ONCA 69, 56 R.F.L. (7th) 257.

Most recently in Murphy, the court refused to hear the submissions of the responding party who was in default.  In Brophyin 2004, the court discussed the alternatives when faced with this situation. One is to dismiss the appeal, another to adjourn pending compliance with the trial order. Although the court in that case then determined that it did not matter because there was no merit to the appeal, in our view, it is no longer the best practice to proceed in that way.

In our view, where an appellant wishes to be relieved of his or her trial ordered obligations pending appeal, the proper approach is to bring a stay motion where the circumstances can be brought before the court. If that is not done, then although the court may still hear the appeal in circumstances the court feels require that approach, the court will normally not hear the appeal until the trial order has been complied with.”

A.A. v. Z.G.,2016 ONCA 660 at 2-4

“In my view, to award one parent the exclusive custody of a child is to clothe that parent, for whatever period he or she is awarded the custody, with full parental control over, and ultimate parental responsibility for, the care, upbringing and education of the child, generally to the exclusion of the right of the other parent to interfere in the decisions that are made in exercising that control or in carrying out that responsibility. The foregoing, of course, does not address the matter of the respective obligations of the custodial parent and the other parent to contribute to the support of the child, nor the right, if any, of the other parent to access to the child.

By contrast, to award to both parents the joint custody of a child on the basis already described is to clothe both parents with equal parental control over, and equal ultimate parental responsibility for, the care, upbringing and education of the child, but to name one of the parents as the parent with whom the child shall ordinarily reside under that parent’s immediate direction and guidance (whether indefinitely or as otherwise stipulated), with the other parent to enjoy such access to the child as does not unreasonably impede the ability of the first to assume his or her immediate direction and guidance of the child, nor unreasonably interfere with the right of the first parent to live his or her own life separate from the other.

If the foregoing can be said to be a reasonably accurate formulation of what is involved in this kind of joint custody, it seems obvious that it is indeed an arrangement that requires maturity on the part of each parent:

(a) in accepting that the other is a person with whom he or she can share, on an equal basis, the control over and responsibility for the child which together they, as parents, must assume in making the many important decisions that must be made with respect to the child’s care, upbringing and education (including of course the child’s religious upbringing);

(b) in accepting that the child must physically reside with one or the other of them (in the words of Weatherston, J.A., in McCahill v. Robertson (1974), 17 R.F.L. 23, quoted in Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 23 O.R. (2d) 391 at p. 396, 95 D.L.R. (3d) 529 at p. 534, 8 R.F.L. (2d) 236, to which reference has already been made: ”A child must know where its home is and to whom it must look for guidance and admonition …”), and

(c) in accepting that generous access by the other parent is an essential part of the arrangement and must be assured by some sort of agreement that can operate in such a way that it will not ultimately reduce to ruins the whole arrangement.

Above all, it requires a willingness by both parents to work together to ensure the success of the arrangement. Such a willingness must be sincere and genuine; by its very nature it is not something that can be imposed by a Court on two persons, one or both of whom may be unwilling or reluctant to accept it in all its implications. Like marriage itself if it is to succeed, it is an arrangement that has to be worked out by two persons who are determined, of their own will and in good faith, to make it work.”

Kruger v. Kruger, 1979 CanLII 1663 (ON CA) per Thorson J.A.

“The test for bias is well-settled: would a reasonable and informed person viewing the matter realistically and practically and having thought it through, conclude that the judge, consciously or unconsciously would not decide fairly? The test is easily stated. The difficulty arises in its application.

…

The threshold for finding a reasonable apprehension of bias is extremely high: See Lloyd v. Bush, 2012 ONCA 349 at para. 23. There is a strong presumption in favour of the impartiality of the trier of fact and the question of reasonable apprehension requires a highly fact-specific inquiry.

Again in Lloydas this court noted at para. 27:

In Chippewas, the court warned at para. 243 that “[i]solated expressions of impatience or annoyance by a judge as a result of frustrations … do not of themselves create unfairness.”:

Clayson-Martin v. Martin, 2015 ONCA 596 at paras 68, 71 & 72

“In dismissing the motion, the motion judge correctly applied the proposition from this court in Berry v. Berry, 2011 ONCA 705 (CanLII), 285 O.A.C. 366 that the “superordinate consideration” in a mobility case is the best interests of the child, determined from a child-centred perspective (para. 10). Accordingly, in assessing the mother’s reasons for moving, the motion judge correctly held that the only reasons relevant to the analysis were those that related to her ability to meet the needs of her son.

A motion judge’s decision not to allow a relocation is discretionary and it is not the place of this Court to engage in a rebalancing of the factors identified in Berry. However, as explained below, the motion judge made an error in principle by not characterizing the mother as the primary caregiver of the child, which led to the further error that her reasons for moving were not entitled to the serious consideration required by Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

…

The Supreme Court of Canada held in Goertz, at para. 48, that where assessing a motion to relocate:

…the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability.

The motion judge held that in circumstances of joint and shared custody, there is no primary caregiver, and therefore neither parent’s interests can have greater weight than the other’s.

We do not agree that the legal status of joint and shared custody forecloses the possibility that one parent can be, for the purposes of a mobility motion, the primary caregiver. On the record before us, it is evident that although the parties have joint and shared custody, the mother is nevertheless the primary caregiver.”

Porter v. Bryan, 2017 ONCA 677 (CanLII) at 10, 11, 14, 15 and 16

“Second, and importantly, we have examined the comments of the trial judge attacked by the appellant.  In our view, in the circumstances of this trial and having regard to the demonstrated conduct of the parties as established by the record, these comments fall far short of meeting the test for reasonable apprehension of bias established by the Supreme Court of Canada in R. v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 and related cases.  Many of the impugned comments were directed to the respondent wife or her counsel, rather than the appellant or his counsel.  Others arose during the testimony of the respondent, in contrast to that of the appellant.  While some of the challenged remarks by the trial judge may appear to reflect his frustration and concerns with the appellant’s conduct, neither the trial judge’s statements nor his alleged interruptions during the testimony of the parties support the assertion that he approached this trial with a closed mind or that his management of the trial was unfair or partisan.  This was an acrimonious law suit.  The evidence of the parties was conflicting and every issue appears to have been vigorously contested.  Viewed as a whole, the record and the trial judge’s reasons reveal that he did a commendable job in weighing the evidence, managing the trial and adjudicating on the issues in contention.”

McFarlane v. McFarlane, 2007 ONCA 591 (CanLII) at 3