“A grave risk of harm to a child’s mother can establish a risk to the child as well: Cannock v. Fleguel, 2008 ONCA 758 (CanLII) at para. 41.”
Category: Uncategorized
April 8, 2022 – Contribution by Child Towards Post-Secondary
“The Father submits that Madison should be required to contribute $2,000 of her own earnings towards her education. He also points out that her student loan covered almost all of her educational costs. The Mother believes the Father should have to pay, irrespective of the student loan, as it would not have been necessary had he contributed.
It is well established that a child should contribute to their own education to the best of their ability. They do not have to contribute every cent they earn, but their earnings must be considered and balanced with the income of their parents: Lewi v. Lewi (2006), 2006 CanLII 15446 (ON CA), 80 O.R. (3d) 321 (C.A.), at paras. 39-42.
In addition, when determining the proper expense to be paid, the court is to consider any subsidies, benefits or income tax deductions or credits received: s. 7(3), Guidelines. A student loan is not considered a “benefit” within the meaning of s. 7(3) of the Guidelines: Roth v. Roth, 2010 ONSC 2532, at para. 16(e). The receipt of a student loan by a child will not always eliminate the obligations of a paying parent. The court must determine the reasonableness of taking such loans into account in the circumstances of each case: Coghill v. Coghill (2006), 2006 CanLII 28734 (ON SC), 30 R.F.L. (6th) 398, at para. 44; Roth, at para. 16.
Generally, the courts will only require a child to contribute to their education by taking out and assuming responsibility for student loans as a last resort, where the means of the child and those of the parents are insufficient to cover the child’s education and living expenses: Naveed v. Nasir, 2016 ONSC 7878, at para. 45.
Madison should be commended for her hard work and her contributions to her education. This skill will bode well for her in the future. Given her earnings, it is only reasonable that she contributes her share. The sum of $2,000, as suggested by the Father, is a reasonable contribution.”
April 7, 2022 – Non-Party Disclosure
“The importance of relevant financial disclosure in family law cases is well-recognized. Delays in disclosure impede the progress of an action, act to the disadvantage of the opposite party, and impact the administration of justice: see Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at paras. 11-12.
When a spouse controls a corporation and their income is necessary to determine the amount of child support, the Guidelines require that the payor spouse provide the other spouse with corporate documents. Those documents include, for the corporation’s three most recent taxation years: the financial statements of the corporation and its subsidiaries; and a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal with at arm’s length: see ss. 21(2) and 21(1)(f) of the Federal Child Support Guidelines, SOR/97-175.
When a spouse is a shareholder, director or officer of a corporation, the pre-tax income of that corporation is relevant to the determination of their annual income. If the court is of the opinion that the amount of the spouse’s income does not fairly reflect all of the money available to the spouse for the payment of child support, the court may include all or part of the pre-tax income of the corporation. All amounts paid by the corporation as salaries, wages, management fees, or other payments or benefits to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances: see s. 18 of the Guidelines.
If the payor spouse does not control the relevant corporation, there are two provisions of the Family Law Rules, O. Reg. 114/99, that permit the court to make orders for document disclosure from a non-party:
i. If a document is in a non-party’s control that is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may order the non-party to produce the document to the party: Rule 19(11).
ii. The court may order a non-party to disclose information where:
a. it would be unfair to the party who wants the disclosure to carry on with the case without it;
b. The information is not easily available by another method; and
c. The disclosure will not cause unacceptable delay or undue expense: Rule 20(5).
On this motion, the onus is on the mother to satisfy the court that production should be ordered: see Weber v. Merritt, 2018 ONSC 3086, 11 R.F.L. (8th) 177, at para. 29.
Non-party disclosure in family litigation is generally more permissible than under the Rules of Civil Procedure, and judges should exercise “liberal and generous discretion” in ordering non-party disclosure in the family context. This is because it is common in family litigation for parties to make use of close family members for purposes of concealing income or assets: see Weber at para. 33; Hagey-Holmes v. Hagey, 2005 CanLII 23324 (ON SC), [2005] O.J. No. 2760 (Ont. S.C.), at para. 32.
It is not uncommon in the family law context for family members and their businesses to align themselves to support and protect a family member defending a property or support claim: see Weber at para. 34; Loeb v. Loeb, 2013 ONSC 1730, 34 R.F.L. (7th) 149, at para. 42.”
April 6, 2022 – Relaying Messages Through Children
“It is clear to the court based on the evidence filed that the respondent has been the parent who makes and takes the children to their doctor’s appointments and specialist appointments both prior to and after separation. It is further clear to the court that the lack of communication between the parties is primarily due to the applicant’s refusal to communicate with the respondent. I find that the lack of communication (or miscommunication) regarding the applicant’s recent trip to Pakistan was due solely to the applicant’s lack of respectful communication with the respondent.
The applicant should have known better and should have acted in a more mature manner to clarify the plans for the children to remain in the respondent’s care during his absence. He should have provided the respondent with clear contact information so they could plan some phone calls between him and the children during his absence. Sofia is just 8 years old and Ayesha is just 5 years old. Neither of them is of the age or maturity to relay any messages to their parents, let alone a message about their father’s trip to Pakistan. The children are further not equipped to take responsibility for a cell-phone and plan out long distance phone calls and messaging with their father while he was away.
To be crystal clear, NEITHER PARENT SHOULD EVER RELAY MESSAGES TO EACH OTHER THROUGH THE CHILDREN.
Based on the evidence filed and the above reasons, I find that there is sufficient evidence to satisfy the court that it is in the best interests of the children to make a temporary order granting the respondent decision making responsibility for both children.”
April 5, 2022 – Providing Medical Disclosure
“The Respondent requests that the Applicant be required to provide disclosure regarding S.H.’s medical history and conditions. Under the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A, S.H.’s health information can only be disclosed with her consent. The Applicant cannot produce that information to the Respondent without S.H.’s written authorization.
Section 23(1) of the Personal Health Information Protection Act provides:
Persons who may consent:
23(1) If this Act or any other Act refers to a consent required of an individual to a collection, use or disclosure by a health information custodian of personal health information about the individual, a person described in one of the following paragraphs may give, withhold or withdraw the consent:
-
-
-
-
- If the individual is capable of consenting to the collection, use or disclosure of the information,
-
-
-
i. the individual, or
ii. if the individual is at least 16 years of age, any person who is capable of consenting, whom the individual has authorized in writing to act on his or her behalf and who, if a natural person, is at least 16 years of age.”
April 4, 2022 – Determining “Success” On Costs
“Mr. Kraemer relies upon the case of Takhar v. Takhar, 2009 CarswellOnt 8172 to submit that since success has been divided, there should be no costs. I prefer to rely upon Thompson v. Drummond, 2018 ONSC 4762 where Chappell J. said that the determination of success is not a simple mathematical exercise: “Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication…”.
April 1, 2022 – Maximum Contact
“The principle that a child should have as much contact as possible with each parent remains a part of the court’s best interests considerations. However, the Divorce Act’s previous reference, in the heading to the relevant section, to “maximum” contact has been removed. However, the operative terms in the section remain the same.
Whether “as much contact as possible” or “maximum”, the notion of ensuring that a child enjoys as much contact with each parent as is consistent with their best interests remains an important consideration for the determination of their parenting time.
The present provision, s. 16(6) states:
Parenting time consistent with best interests of child
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
The previous provision stated:
Maximum contact
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
Whether this change in the heading is merely semantic remains a point to be argued. The point was not raised before me. However, I note that in Rigillio v Rigillio, 2019 ONCA 548, the Court of Appeal for Ontario found that a court’s failure to advert to what was then the maximum contact principle represented an error in law. Any judge who departs from the principle must provide reasons for doing so. Implicit in that principle is the notion that those reasons must be in a child’s best interests.
Despite the changed wording of the heading and any potential implications, it remains necessary for any court making a parenting decision to avert to the s. 16(6) principle.”
March 31, 2022 – Matrimonial Home & Writs of Execution
“The matrimonial home occupies a special place in family relations: Bank of Montreal, at p. 113. Sections 21 and 23 of the FLA are intended to protect the interests of spouses in matrimonial property by prohibiting unilateral dealings that threaten to interfere with their interest: see Walduda v. Bell (2004), 2004 CanLII 4037 (ON SC), 7 R.F.L. (6th) 205 (Ont. S.C.), at para. 14.
While a writ of execution may be an “encumbrance” within the meaning of that term in ss. 21 and 23(d) of the FLA, there is an issue as to whether, and in what circumstances, a writ of execution by a third-party creditor can be an “encumbrance” by a spouse. Under s. 23(d) of the FLA, the court may set aside a transaction encumbering an interest in a matrimonial home, and revest the interest if the encumbrance occurred contrary to s. 21(1) – that is, contrary to the prohibition against a spouse encumbering the interest without the consent of the other spouse. Therefore, to engage this section, the spouse must have done something to directly encumber the interest in the matrimonial home. As such, this provision does not typically apply to executions by third-party creditors: see Maroukis v. Maroukis, 1984 CanLII 76 (SCC), [1984] 2 S.C.R. 137, at p. 144.
It is unnecessary in this case to determine whether there are circumstances in which ss. 21 and 23 of the FLA would apply to an execution by a third-party creditor. Assuming, without deciding, that these provisions could be available to permit the court to stay an execution by a third-party creditor, they would only be available where the court can conclude that, by virtue of the execution, the spouse effectively encumbered the interest in the matrimonial home.
For example, in Walduda the spouse borrowed money from her sister to fund the litigation against her husband – knowing that she would be unable to repay the debt – and then consented to judgment in the action to recover the debt. In these circumstances, the application judge found that the spouse had entered into the transaction with the intent of tying up the interest in the matrimonial home. The spouse used the third-party transaction to encumber the matrimonial home, thereby doing indirectly what she could not do directly.
In this case, and unlike the spouse in Walduda, Robert did not execute the promissory notes that led to the judgment for the purpose of tying up Nicole’s interest in the matrimonial home. As noted by the trial judge in the Civil Action, the debts behind the promissory notes were “legitimate marital debts”. Moreover, there is no evidence that Robert was using the debt he owed Harold to encumber OFH. Harold did not consult or confer with Robert before he sued or executed on the judgment and Robert chose not to defend Harold’s claim only after obtaining legal advice that led him to believe that there were no valid defences to Harold’s claim. The fact that Harold knew of Nicole’s interest in the matrimonial home is not sufficient to engage s. 21(1) of the FLA. Speaking of a comparable provision under Nova Scotia’s legislative framework, Bryson J.A. noted that it “contemplates some positive act by an owner that grants an interest to a third party”, and he concluded that third party judgments would not be caught “merely because a creditor knows that a debtor owns a matrimonial home”: Hurst v. Gill, 2011 NSCA 100, 342 D.L.R. (4th) 583, at paras. 65-66.
In my view, the requirements of s. 23(d) of the FLA were not met in this case because Harold’s writ of execution was not an encumbrance of the matrimonial home by Robert. As such, the trial judge ought not to have stayed the writ of execution under that provision.
Nevertheless, as I will explain, the stay of the execution of Harold’s judgment was justified under s. 106 of the CJA. Section 106 provides that “[a] court on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just”. This general authority of the court to stay a proceeding can be applied to the enforcement of a judgment. See Zanetti Estate v. Roltford Developments Ltd., [1990] O.J. No. 2584 (S.C.); Buttarazzi v. Buttarazzi (2009), 2009 CanLII 80136 (ON SC), 84 R.F.L. (6th) 240 (Ont. S.C.); and 1247902 Ontario Inc. v. Carlisle Power Systems Ltd., [2003] O.J. No. 6300 (Div. Ct.), at para.10, aff’d 2005 CanLII 691 (Ont. C.A.).”
March 30, 2022 – Difference Between a Review & a Variation
“First, the appellant is correct that there is a difference between a “review” and a “variation”. A review permits an order to be revisited without a threshold determination of a material change in circumstances, while a variation includes a burden to establish changed circumstances, as required by s. 17(4.1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.): Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at paras. 35-37. That said, once the threshold to vary the existing order is met, both a review and a variation of spousal support consider the same objectives: those that are set out explicitly at ss. 15.2(6) and 17(7) of the Divorce Act.”
March 29, 2022 – Child Support & Non-Recurring Gains
“In determining the Respondent’s income for support purposes, the default approach under section 16 of the CSG is his Line 150 income as shown on his income tax return. The last tax return filed by the Respondent was in 2019. His Line 150 income in 2019 was $1,362,197.00.
The Respondent, relying upon section 17 of the CSG, submits that his income for support purposes is $180,000.00, which is his current salary with Basecamp. The Respondent submits that his income in the years 2017, 2018 and 2019 reflect non-recurring capital gains and other items and that those non-recurring amounts should be removed. In this regard, the Respondent relies on the Scenario 2 income figures from the Marmer Penner report which results in a three-year average income of $340,000.00 for the period 2017-2019.
In Ewing, at paras. 33-35, the Alberta Court of Appeal provided the following guidance on whether it would be fair and reasonable to exclude a non-recurring gain from income.
33 Thus, the nature of the sale of a capital asset, or other extraordinary gain or fluctuation in income, should always be considered when determining fair income. Frequently the fairest method of income may be to exclude the gain. On the other hand, where a non-recurring gain is in the nature of an employment bonus, in the sense that it is truly income for work done, its inclusion in section 16 income may not make that method of calculation unfair. The sale of stock options as part of annual compensation may be such an example.
34 In addition to considering the nature of the non-recurring gain, or fluctuation of income, it is also important to consider the purpose of support orders when deciding whether a section 16 calculation of income is fair. Support orders are directed at ensuring that, to the extent possible, that children enjoy the same standard of living they would have experienced if the marriage had not broken down. Thus, when determining a fair and reasonable income, the day-to-day standard of living the family would have enjoyed, had it remained intact, is relevant. A court might want to consider whether a specific non-recurring gain would have resulted in a change in lifestyle of a particular family, had it remained intact. For instance, if the family’s standard of living is high to begin with, the unusual gain may not affect the family’s standard of living at all but may simply be seen as a means of providing security for future years. Thus, notwithstanding a large gain, a section 16 calculation which includes the gain might not be the fairest method of calculation.
35 While the courts have the discretion to determine whether the section 16 income calculation is fair, having regard to non-recurring gains and patterns of income, the following, although not an exhaustive list, outlines some of the matters a court might consider:
Is the non-recurring gain or fluctuation actually in the nature of a bonus or other incentive payment akin to income for work done for that year?
Is the non-recurring gain a sale of assets that formed the basis of the payor’s income?
Will the capital generated from a sale provide a source of income for the future?
Are the non-recurring gains received at an age when they constitute the payor’s retirement fund, or partial retirement fund, such that it may not be fair to consider the whole amount, or any of it, as income for child support purposes?
Is the payor in the business of buying and selling capital assets year after year such that those amounts, while the sale of capital, are in actuality more in the nature of income?
Is inclusion of the amount necessary to provide proper child support in all the circumstances?
Is the increase in income due to the sale of assets which have already been divided between the spouses, so that including them as income might be akin to redistributing what has already been shared? [Emphasis added]
Did the non-recurring gain even generate cash, or was it merely the result of a restructuring of capital for tax or other legitimate business reasons?
Does the inclusion of the amount result in wealth distribution as opposed to proper support for the children? [Emphasis added]
The test in s. 17(1) of the CSG is what is “fair and reasonable” having regard to the payor’s income in the preceding three years: Marquez v. Zapiola, 2013 BCCA 433, at para. 53. While it may be appropriate to average a spouse’s income over the last three years, there is no obligation to do so: Decaen v Decaen, 2013 ONCA 218, at para. 50. When a spouse’s income fluctuates significantly due to the inherent unpredictability of income from business interests, the averaging approach can certainly be appropriate: Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, at para. 128. In Jakob v. Jakob, 2010 BCCA 136 the British Columbia Court of Appeal, at para. 46, stated:
The calculation of income for the payment of support is based on a payor’s capacity to pay; it is a payor’s income or earning capacity that determines the amount of support he or she will be required pay. Actual income may not always reflect a payor’s capacity to pay. Where income has fluctuated in previous years, in the sense that it has increased and decreased over a fixed period of time, and it is anticipated that it will continue to fluctuate in that manner, it may be appropriate to take an average of fluctuating income for a fixed number of years to calculate a payor’s income or earning capacity.”
In this case, the Respondent’s stated income of $144,000 as well as his current salary of $180,000 does not “fully and fairly” reflect his income when viewed from a three-year perspective. In the last three years, the Respondent’s salary has been only one aspect of his compensation. Amongst other things, scenario 2 of the Marmer Penner report excludes from the Respondent’s income the retention bonuses and RSUs that he has received. I find that the Scenario 2 figures of the RVG report are a better representation of the Respondent’s income for purposes of this interim support motion. Accordingly, taking the three-year average of his 2017-2019 income, I find that it is fair and reasonable to conclude that the Respondent’s income for purposes of this interim support motion is $1,192,666.67 rather than his Line 150 income in 2019 of $1,362,197.00 or his current salary.”