“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.”
Category: Uncategorized
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.”
March 28, 2022 – Calculating 40% Time
“The two most common approaches to calculating access and custody time are in days, and in hours. If using days, to reach 40 per cent, the access parent must have the child in his or her care for 146 days per year (Handy v. Handy, [1999] B.C.J. No. 6 (S.C.). When calculating in hours, the 40 per cent threshold lies at 3504 hours per year (Claxton v. Jones, [1999] B.C.J. No. 3086 (Prov. Ct.)).
In his paper, “A Practitioner’s Guide to the Economic Implications of Custody and Access under the Divorce Act and the Federal Child Support Guidelines”, Julien D. Payne points out that no matter how the calculation is completed, the relevant period is the amount of time the child is in the care and control of the parent not the amount of time that the parent is physically present with the children ((2002) 32 R.G.D. 1-36, at 8). The calculation includes the time the child spends in swimming lessons, at day care, at school, or with a nanny, so long as the parent claiming this time is the parent who during that period is “responsible for their well-being” (Sirdevan v. Sirdevan, [2009] O.J. No. 3796).
In line with this approach, a custodial parent will be credited with time that a child spends sleeping or at school, except for those hours when the non-custodial parent is actually exercising rights of access or the child is sleeping in the non-custodial parent’s home (Cusick v. Squire, [1999] N.J. No. 206 (S.C.)). If there is a fixed drop-off time for the access parent to deliver the child to school or daycare and the child returns to the custodial parent at the end of that day, the time during school or daycare is typically credited to the custodial parent (Maultsaid, at para. 20; Barnes v. Carmount, 2011 ONSC 3925, [2011] O.J. No. 3717, at para. 43).”
March 25 2022 – Sections 101 & 102, Child Youth Family Services Act
“Sections 101 and 102 of the CYFSA enumerate the orders available to the court where a finding in need of protection has been made and where the court is satisfied that intervention through a court order is necessary to protect the child in the future. Section 101(1) sets out the following options:
Supervision order
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- That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.
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Interim society care
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- That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
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Extended society care
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- That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.
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Consecutive orders of interim society care and supervision
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- That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.
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Custody Order
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- That one or more persons be granted custody of the child, with the consent of the person or persons.
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Under sections 101(2), 101(3), and 101(4), the court must consider other factors, including whether there are any less disruptive alternatives or possibilities for extended family placement. The court must also enquire with respect to the efforts of the Society to assist the child or children before intervention. Those sections read as follows:
101(2) Court to inquire
In determining which order to make under subsection (1) of section 102, the court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention under this Part.
102(3) Less disruptive alternatives preferred
The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child.
101(4) Community Placement to be considered
Where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention under this part, the court shall, before making an order under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbor, or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.
101(5) First Nations, Inuk, or Metis Child
Where the child referred to in subsection (4) is a First Nations, Inuk, or Metis child, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with a member of the child’s extended family if it is possible, or if it is not possible,
(a) In the case of a First Nations child, another First Nations family.
(b) In the case of an Inuk child, another Inuit family.
(c) In the case of a Metis child, another Metis family.
In Children’s Aid Society of Toronto v. L.(T.), 2010 ONSC 1376, at para. 25, the court set out the statutory pathway to be followed when determining disposition. In light of the new legislation, that test should be reformulated as follows:
(a) Determine whether it is in the child’s best interest to return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child’s best interests and include them in the order. If not, determine whether the disposition that is in the child’s best interests is interim society care or extended society care.
(b) If an interim society care would be in the child’s best interests, but the maximum time under section 122 of the Act has expired, determine whether an extension under section 122 (5) is available and in the child’s best interests. If so, extend the time and make an order for interim society care. If not, make an order for extended society care.
(c) If an extended society care order is to be made and a party has sought an access order, determine whether access is in the best interest of the child in view of the factors set out in section 74(3) and a consideration of whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. If the court deems appropriate, it may consider whether access would impair adoption. If access would not be in the best interest of the child, dismiss the claim for access.
(d) If access would be in the best interest of the child, make the access order containing appropriate terms and conditions.”
March 24, 2022 – Health Issues & Imputing Income
“The legal considerations in relation to health issues and imputing income include the following:
a. There is a duty to seek employment in a case where a parent is healthy. Drygala; S.M.R. v. E.L.M.2019 BCPC 236 (BC PC); Anyumba v. Keby 2018 ONCJ 775 (OCJ).
b. A health issue or limitation may constitute a reasonable explanation for unemployment or under-employment. But the onus is on the person advancing such an explanation to provide evidence both as to the nature and magnitude of the health problem; and also the connection between the health issue and the person’s employability or capacity to earn an income.
c. Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. Cook v. Burton2005 CanLII 1063 (SCJ); Stoangi v. Petersen 2006 CanLII 24124 (SCJ).
d. The payor must prove that any medical excuse for being underemployed is reasonable. Rilli v. Rilli2006 CanLII 34451 (SCJ); Matti v. Odish 2017 ONCJ 410 (OCJ); Pecanac v. Mamado 2017 CarswellOnt 5103 (OCJ); McIntyre v. Garcia.
e. Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address those limitations. C.V. v. S.G. 2019 ONCJ 159(OCJ); Cole v. Freiwald [2011] O.J. No. 3654 (OCJ).
f. The receipt of ODSP or Workplace Safety and Insurance Board benefits is not sufficient proof of one’s inability to work for support purposes. Tyrrell v. Tyrrell2017 ONSC 6499 (SCJ). The court cannot take judicial notice of any eligibility requirements for ODSP. Nor can it delegate the important and complex determinations of employability and income earning capacity to unknown bureaucrats applying unknown evidence to unknown criteria.”
March 23, 2022 – Family Violence and the Amended Divorce Act
“With respect to the parenting issues, the only material change which requires a “fresh inquiry” into the best interests of the children is the distribution of parenting time between the parents. Recent amendments to the Divorce Act direct the court to consider family violence in assessing the best interests of children, including its impact on the ability and willingness of the person engaged in family violence to care for and meet the needs of the children, and the appropriateness of making an order requiring cooperation on issues affecting the children. Factors to be considered include:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.”
March 22, 2022 – Children’s Wishes: Key Criteria
“I do not discount the significance of the expressed wishes of a 13- and 14-year-old child but I am also to consider those wishes within the context of all of the evidence.
In Abbott v. Meadus, 2014 NBQB 18, at paras. 67-70, Baird J. stated the following:
[67] In this case, the children are now 14 and 12 years of age. Their views and preferences, although not determinative, do play a role in the ultimate decision to be made.
[68] Here I wish to refer to the Voice of the Child Assessment. Professor Nicholas Bala, a professor of law from the University of Toronto in an article titled, “The Voice of Children in Canadian Family Law Cases” established criteria that he believes the judiciary should consider when assessing the significance of a child’s wishes. The reason why I am including these criteria in this decision, is to demonstrate to the respondent mother in this case, the imperative we have as judiciary to consider those expressed views when children are at an age where their views should have some weight.
[69] In this case, the responding mother does not accept that these children have the requisite maturity to fully comprehend their choice.
[70] The criteria are as follows:
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- Whether both parents are able to provide adequate care;
- How clear and unambivalent the wishes are;
- How informed the expression is;
- The age of the child;
- The maturity level;
- The strength of the wish;
- The length of time the preference has been expressed for;
- Practicalities;
- The influence of the parent(s) on the expressed wish or preference;
- The overall context;
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The circumstances of the preference from the child’s point of view.”
March 21, 2022 – Charging Orders Under the Solicitors Act
“In order to obtain a charging order or a lien on the monies in issue, the onus is on the solicitor to demonstrate that a charging order or lien is warranted. The decision is discretionary: Taylor v. Taylor (2002), 2002 CanLII 44981 (ON CA), 60 O.R. (3d) 138 (C.A.), at para. 34; Foley v. Davis (1996), 49 C.P.C. (3d) 201 (Ont. C.A.), at p. 202. In deciding whether or not to exercise that discretion, courts must “balance the circumstances and equities of each case and client”: Taylor, at para. 34.
The test for a charging order under s. 34 [of the Solicitors Act] is clear. To obtain a s. 34 charging order a solicitor must demonstrate that:
i. the fund or property is in existence at the time the order is granted: Langston v. Landen, [2008] O. J. No 4936 (Ont. S.C.J.), at paras. 28-29;
ii. the property was “recovered or preserved” through the instrumentality of the solicitor; Kushnir v. Lowry, [2003] O.J. No. 4093 (C.A.), at para. 2;
iii. there must be some evidence that the client cannot or will not pay the lawyer’sfees; Kushnir, at para. 2; see also Guergis v. Hamilton, 2016 ONSC 4428 (CanLII), at para. 6; Thomas Gold Pettinghill LLP, at para. 88; Foley, at p. 202.
Charging orders exist alongside, and in addition to, a court’s inherent jurisdiction to grant a solicitor’s lien. Although distinct, they are two sides of the same coin, and overlap significantly in purpose and effect. As this court observed in Taylor, at para. 28, s. 34 of the Solicitors Act is a codification of a court’s “inherent jurisdiction in equity to declare a lien on the proceeds of a judgment where there appears to be good reason to believe that the solicitor would otherwise be deprived of his or her costs.”
In our view, the conceptual differences between the two orders, such as how and when they are acquired, do not justify the application of different tests. The two types of charges cover the same circumstances and have identical objectives. Regardless of which of the two remedies is sought, it is our view that the three elements outlined above must be established.”
March 18, 2022 – Police Records and the Evidence Act
“The father tenders an Ottawa Police Occurrence report and file notes made by social workers employed by the Ottawa Children’s Aid Society. All of these documents are attached as exhibits to his own affidavit.
Section 35 of the Evidence Act addresses the admissibility of business records:
35 (1) In this section,
“business” includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise; (“entreprise”)
“record” includes any information that is recorded or stored by means of any device. (“document”) R.S.O. 1990, c. E.23, s. 35(1).
Where business records admissible
(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. R.S.O. 1990, c. E.23, s. 35(2).
Notice and production
(3) Subsection (2) does not apply unless the party tendering the writing or record has given at least seven days notice of the party’s intention to all other parties in the action, and any party to the action is entitled to obtain from the person who has possession thereof production for inspection of the writing or record within five days after giving notice to produce the same. R.S.O. 1990, c. E.23, s. 35(3).
Surrounding circumstances
(4) The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility. R.S.O. 1990, c. E.23, s. 35(4).
Previous rules as to admissibility and privileged documents not affected
(5) Nothing in this section affects the admissibility of any evidence that would be admissible apart from this section or makes admissible any writing or record that is privileged. R.S.O. 1990, c. E.23, s. 35(5).
Setak Computer Services Corp. v. Burroughs Business Machines Ltd. (1977) 1977 CanLII 1184 (ON SC), 15 O.R. (2d) 750 (HC) remains the foundational case in Ontario with respect to the fundamentals of the admissibility of business records. Note that Setak does not admit evidence otherwise inadmissible simply because it is in a business record. For example, expert opinions contained in a business record are not admissible as part of the business record. Nor is recorded hearsay from third parties who are not under a business duty to report the information.
The court in Setak stated the following at pages 761, 762 and 763:
In this case, I have no hesitation in holding that the minutes are admissible under s. 36, as prima facie proof of what actually transpired at the meetings, including the following:
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- That the meetings were held on the dates shown, with the persons described as being present actually present.
- That the reports described as having been made in the minutes were in fact made at the meeting.
- That where indicated, one of the persons attending did, in fact, undertake to follow a certain course of action.
- That where indicated, an agreement was reached or formalized between the parties on any point or issue.
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A writing or record made in the regular course of business consists in its simplest form of a record by the maker on the basis of his own personal observations and knowledge, and there can be no objection to the minutes being offered for statements attributable or events that they say happened at the time or within a reasonable time of the meeting.
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… the minutes may not be received to prove the validity of any opinion expressed at a meeting. I say that, regardless of who offered the opinion….unless given by a duly qualified expert.
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… The Act was intended to make admissible records which, because they were made pursuant to a regular business duty, are presumed to be reliable. The mere fact that recording of a third party statement is routine imports no guarantee of the truth of the statement, and to construe s. 36 as admitting hearsay evidence of any third party would make the section as almost limitless dragnet for the introduction of random testimony from volunteers outside the business whose information would be quite beyond the reach of the usual test of accuracy. In my opinion, s. 36 of the Evidence Act should be interpreted as making hearsay statements admissible when both the maker of the writing or the entrant of the record, and the informant or informants, if more than one, are each acting in the usual and ordinary course of business in entering and communicating an account of an act, transaction, occurrence or event.”
DiGiorgio v. DiGiorgio, 2020 ONSC 1674 (CanLII) at 48-51
March 17, 2022 – Restraining Orders Under the CLRA
“The court is authorized to make a restraining order pursuant to s. 35(1) of the [Children’s Law Reform] Act:
Restraining order
35 (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 15.
The applicant relies on McCall v. Res, 2013 ONCJ 25, where there is a helpful discussion as to the necessary evidence to justify a restraining order. In paras. 29-31, the court states (with any emphasis being in the original):
29 Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds [for the mother] to fear for her own safety or for the safety of [her child]”. In Fuda v. Fuda, 2011 ONSC 154 (CanLII), 2011 CarswellOnt 146 (Ont. S.C.J.), Justice McDermot had this to say, at paragraph 31 [my emphasis]:
It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears.
30 In Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.J.), Justice Ruth Mesbur made the following comments, at paragraphs 7 and 9 [my emphasis]:
More importantly, Horkins J made specific findings of fact that the applicant had physically and verbally abused the respondent, with psychological abuse being more frequent. It is telling that today, when the respondent raises the issues of her ongoing psychological fear of the applicant, the applicant simply suggests she should get counselling. [In this case] I accept that the respondent has reasonable grounds to fear for her own safety and the safety of the child who is in her custody. This fear extends to both their physical safety and psychological safety.
31 What I take from these cases is:
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- The fear must be reasonable
- The fear may be entirely subjective so long as it is legitimate
- The fear may be equally for psychological safety, as well as for physical safety
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An underlying principle is that a person’s fear for his or her safety or the safety of a child, must be related to a respondent’s actions or words.”