Siegel's Family Court Calendar

“Many cases have considered how the court should approach its task under s. 7(1) of the Arbitration Act, which provides:

7(1) If a party to an arbitration agreement commences a proceeding in respect of a matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding. [Emphasis added.]

The law favours giving effect to arbitration agreements. This is evident in both legislation and in jurisprudence. Section 7 of the Arbitration Act contains mandatory language, stating “the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding” (emphasis added).

The mandatory wording in s. 7 of the Arbitration Act is a change from s. 7 of the old Arbitrations Act, R.S.O. 1990, c. A.24, which gave the court discretion to stay the action:

[I]f satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission and that the applicant was at the time when the proceeding was commenced and still remains ready and willing to do all things necessary to the proper conduct of the arbitration, [the court] may make an order staying the proceeding. [Emphasis added.]

As can be seen, the statutory language in s.7 of the current Arbitration Act is directory, not equivocal. It strongly favours giving effect to an arbitration agreement. This policy direction is reinforced by s. 17 of the Arbitration Act:

17(1)  An arbitral tribunal may rule on its own jurisdiction to conduct the arbitration and may in that connection rule on objections with respect to the existence or validity of the arbitration agreement.

(2)  If the arbitration agreement forms part of another agreement, it shall, for the purposes of a ruling on jurisdiction, be treated as an independent agreement that may survive even if the main agreement is found to be invalid.

Subsection 17(1) did not exist in the 1980 or the 1990 Arbitrations Act.  Subsection 17(2) codifies the common law, and establishes that an arbitration agreement can survive even where the contract in which it is found is determined to be invalid.”

         Haas v. Gunasekaram, 2016 ONCA 744 (CanLII) at 9-13

“One of the desired objectives of a custody order is to maximize the involvement of both parents in the child’s life. The extent to which evidence shows that a parent has failed to communicate with and inform the other parent and tried their best to reach mutual decisions on significant guardianship questions, is an important consideration when deciding what parenting arrangement is in the best interests of a child. If a parent has made access to the child difficult for the other parent, that is also a factor: D.L.S. v. R.S., 2012 BCSC 977 (CanLII), paras. 171, 208. I also consider the ability and commitment of each parent to putting their child’s interests ahead of their own, including their commitment to ensuring the child maintains a positive relationship with the other parent: Hawkins v. Schlosser, 2012 ONSC 2707 (CanLII), para 71.”

Liu v. Huang, 2018 ONSC 3499 (CanLII) at 114

“In a series of decisions, judges of the Superior Court have ‘grossed up’ a spouse’s income to take account of similar striking differences in tax consequences between salaried employees and persons in receipt of other forms of income: see Orser v. Grant, [2000] O.J. No. 1429 (QL) (S.C.J.); Moran v. Cook (2000), 2000 CanLII 22542 (ON SC), 9 R.F.L. (5th) 352 (Ont. S.C.J.); Sarafinchin v. Sarafinchin (2000), 2000 CanLII 22639 (ON SC), 189 D.L.R. (4th) 741 (Ont. S.C.J.); Manis v. Manis, [2000] O.J. No. 4539 (QL), [2000] O.T.C. 880 (S.C.J.); and Brans v. Brans (2000), 2000 CanLII 22471 (ON SC), 13 R.F.L. (5th) 335 (Ont. S.C.J.).

The leading case is Orser v. Grant in which Benotto J. analyzed the issue in this fashion, at paras. 10-13:

Gross-Up for Tax

Mr. Grant has arranged his financial affairs so that he paid only $7,362.31 in income tax, substantially less than he would pay were he a salaried employee. It means that he enjoys a net income after tax of $55,405.67.

The Child Support Guidelines base support on the payor’s gross taxable income. One of the objectives of the guidelines is to ensure “consistent treatment” of those who are in “similar circumstances”. Thus, there are provisions to impute income where a parent is exempt from paying tax, lives in a lower taxed jurisdiction, or derives income from sources that are taxed at a lower rate.

Where, as here, a parent arranges his or her affairs to pay substantially less tax on income, the income must be grossed up before the table is applied. This is the only way to ensure the consistency mandated by the legislation.

Here, I have been asked to use a 36 [per cent] average tax rate. This is reasonable. If I apply that gross-up to his net after tax income, his gross income would be over $85,000. Thus, Mr. Grant would have to earn this gross amount to net $55,405 for himself. This greater amount is what the table amount of support should be based on.

(Emphasis added)

Benotto J.’s analysis was explicitly adopted by Speigel J. in Moran v. Cook, Sachs J. in Sarafinchin v. Sarafinchin, Lane J. in Manis v. Manis and Greer J. in Brans v. Brans. It was also followed by Rooke J. in Lavoie v. Wills (2000), 2000 ABQB 1014 (CanLII), 13 R.F.L. (5th) 93 (Alta. Q.B.). [page426]

Subject to observing that s. 19 of the Guidelines defines certain specific circumstances in which income may be imputed and sets out the criteria to be metin those circumstances, I agree with the general approach adopted in these cases. Section 1(d) of the Guidelines states that one of the objectives of the Guidelines is “to ensure consistent treatment of spouses and children who are in similar circumstances”. An interpretation of ss. 18 and 19 of the Guidelines that would impute the same income for child support purposes to two parents, one earning a salary of $128,000 and paying tax of $48,000 and the other receiving business income of $128,000 and paying tax of $5,000, would be remarkably out of step with the “consistent treatment” objective of the Guidelines.”

Riel v. Holland, 2003 CanLII 3433 (ON CA) at 32-35

“Having found that the three elements for civil contempt were established, however, the motion judge erred in law by failing to consider whether she should exercise her discretion to decline to make a finding of contempt. It is this last, crucial step that is missing from the motion judge’s analysis.

As the Supreme Court of Canada stated in Carey, at para. 36, “[t]he contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders”. This power should be exercised “cautiously and with great restraint” as “an enforcement power of last rather than first resort”. The Court added, at para. 37, that “a judge may properly exercise his or her discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case.”

There is no indication that the motion judge considered whether a finding of contempt was a last resort or whether she considered any alternatives to such a finding. Such alternatives might have included the court finding that the appellant had breached the order, while admonishing him that, despite his apparently good intentions in ensuring his children were fed, he should respect the respondent’s wishes when the children were with her and comply with the order.

Nor does it appear that the motion judge considered the best interests of the children, which this court has stated is the “paramount consideration” when the issue raised in the contempt motion concerns access to children: Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at para. 19. As this court stated in Ruffolo, it is in the best interests of the children to encourage professional assistance as an alternative to making a finding of contempt too readily. Indeed, here, the motion judge herself encouraged the parties to continue working with a family mediator.

In our view, the motion judge’s failure to consider these discretionary factors before making a finding of contempt was an error of law. It is especially important for courts to consider the discretion to impose a contempt finding in high-conflict matrimonial cases such as this one…”

Chong v. Donnelly, 2019 ONCA 799 (CanLII) at 8-12

“Refusing to answer the door and then throwing papers back at a process server is not an effective strategy to avoid service.”

NVG v IMP, 2017 ONSC 6009 (CanLII) at 21

“In the end, although a business person is entitled to create corporate structures and relationships for valid business, tax and other reasons, the law must be vigilant to ensure that permissible corporate arrangements do not work an injustice in the realm of family law. In appropriate cases, piercing the corporate veil of one spouse’s business enterprises may be an essential mechanism for ensuring that the other spouse and children of the marriage receive the financial support to which, by law, they are entitled. The trial judge was correct to recognize that this was such a case.”

Wildman v. Wildman, 2006 CanLII 33540 (ON CA) at 49

“The overriding consideration on a motion to set aside an order dismissing an appeal is the justice of the case, which entails a consideration of the merits of the appeal: Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731, at para. 8. In addition, factors analogous to those typically considered on a motion to extend the time to appeal inform a request to set aside the administrative dismissal of an appeal: (i) the explanation for not perfecting the appeal within the time stipulated by the rules; (ii) the length of and explanation for the delay in moving to set aside the administrative dismissal; and (iii) prejudice to the respondent.

More justification must be shown by a party moving to aside an administrative dismissal of an appeal than would have been required had the party earlier availed itself of its rights to move for an extension of time to perfect the appeal: Langer v. Yorkton Securities Inc. (1986), 1986 CanLII 2612 (ON CA), 57 O.R. (2d) 555 (C.A.), at para. 14.”

Sickinger v. Sickinger, 2017 ONCA 760 (CanLII) at 13-14

“I am aware of two decisions where imputation was considered for child support purposes while the payor was incarcerated. In both, the existing orders were in essence continued based on previous earnings: Khentov v. Bieler, [2007] O.J. No. 1159 (Ont. S.C.J.) at paragraph 23, and Billingsley v. Billingsley, 2010 ONSC 3381 (Ont. S.C.J.) at paragraph 52. The rationale, as in the above paragraph, was that intentional criminal actions led to the incarceration and resulting unemployment. Incarceration was not considered to be a sufficient reason for the parent being unable to work.

The applicant suggests those latter cases lead to a seemingly hard and fast rule that where a support payor is incarcerated child support is to be imputed based on prior earnings. However, I note that imputation is discretionary under the Guidelines (Drygala at paragraph 44), and the ultimate consideration (per the third part of the test in Drygala ) is always reasonableness. A situation where a person’s drug and/or criminal behaviour has led to decreased earning capacity may be somewhat different than a situation where a payor is incarcerated and is therefore simply unable to earn any income. In the former, the payor would still have the capacity to do something to address his or her issues, and have the potential to correct the failure to satisfy the support obligation.

While all the 19(1) listed criteria are clearly designed to direct the court in the exercise of its discretion in determining reasonable income, given the way it is applied subsection 19(1)(a) has the added practical role of encouraging or in effect coercing parents to earn to their capacity to support their children. However, an incarcerated parent cannot modify his or her behaviour by finding suitable employment in response to an imputation order. The order proposed by the applicant here would simply create debt. As argued, there is also an underlying element of punishment or penalty for the alleged criminal behaviour.

I am not convinced that there is an absolute rule that the court must always impute income where the payor was working prior to incarceration. The two cases referred to above were fact specific and considered many other contextual elements. In both the payor had already been convicted of the crimes. Most importantly for this motion, those decisions were final orders. This is only a request for interim support. In my view it is preferable to have the trial judge, on better evidence and with more up-to-date information, assess what would be reasonable support going back to the date of the incarceration in the respondent’s particular circumstances. No order that I make will assist to get regular support flowing now. If the respondent is ultimately acquitted, there might be an issue about the intentionality of his unemployment. If the respondent is released relatively quickly, full imputation might indeed be found to be appropriate. However, while the court must be mindful of the children’s need for financial support, if the respondent will be incarcerated for a long period, for example say 5 years, the circumstances of all those involved will need to be practically and thoughtfully considered before he is saddled by way of imputation with a very large (in this example $76,000) debt upon his release, a debt that would be very difficult if not impossible to vary given that his circumstances while incarcerated are unlikely to change. As noted in Jesse v. Jesse, 2010 ONSC 861 (Ont. S.C.J.) at paragraph 64, a cautious approach to income is appropriate on temporary motions for child support. I also note that the respondent raises his mental health and its connection to his circumstances. Imputation may not be appropriate if a parent is unable to work for mental health reasons: see Fraser v. Fraser, 2013 ONCA 715 (Ont. C.A.) .”

Sheridan v. Cupido, 2018 ONSC 5817 (CanLII) at 13-16

“Under the Children’s Law Reform Act and the Divorce Act, the child’s views and preferences are only one factor among many in determining the child’s best interests. Consequently, a child’s refusal to attend counselling is not necessarily determinative of their best interests.

Having said that, A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 (CanLII), [2009] 2 S.C.R. 181 at paras. 81 and 82 highlighted the potential tension between a child’s growing autonomy and the child’s “best interests” norm:

[81] The general purpose of the “best interests” standard is to provide courts with a focus and perspective through which to act on behalf of those who are vulnerable. In contrast, competent adults are assumed to be “the best arbiter[s] of [their] own moral destiny”, and so are entitled to independently assess and determine their own best interests, regardless of whether others would agree when evaluating the choice from an objective standpoint.

[82] The application of an objective “best interests” standard to infants and very young children is uncontroversial. Mature adolescents, on the other hand, have strong claims to autonomy, but these claims exist in tension with a protective duty on the part of the state that is also justified [citations omitted].

As a result, the majority in A.C. stated that the best interests standard “must be interpreted in a way that reflects and addresses an adolescent’s evolving capacities for autonomous decision-making”: at para. 88.

Under this interpretation of the best interests standard, a minor’s wishes will have greater weight as their maturity increases. In some cases, the court “will inevitably be so convinced of a child’s maturity that the principles of welfare and autonomy will collapse altogether and the child’s wishes will become the controlling factor”: A.C., at para. 87. Scrutiny of a child’s maturity will intensify in relation to the severity of potential consequences of medical treatment or its refusal: A.C. at paras. 95. This is partly because it is inherently difficult to assess an adolescent’s ability to make medical decisions: A.C., at paras. 70-79.

The majority in A.C. listed questions to assist courts in assessing maturity:

What is the nature, purpose and utility of the recommended medical treatment? What are the risks and benefits?

Does the adolescent demonstrate the intellectual capacity and sophistication to understand the information relevant to making the decision and to appreciate the potential consequences?

Is there reason to believe that the adolescent’s views are stable and a true reflection of his or her core values and beliefs?

What is the potential impact of the adolescent’s lifestyle, family relationships and broader social affiliations on his or her ability to exercise independent judgment?

Are there any existing emotional or psychiatric vulnerabilities?

Does the adolescent’s illness or condition have an impact on his or her decision-making ability?

Is there any relevant information from adults who know the adolescent, like teachers or doctors?: at para. 96

While A.C. was decided in relation to Manitoba’s child welfare legislation and its application of the best interests test, the above principles are still relevant for interpreting the best interests standard under the federal Divorce Act and Ontario’s Children Law Reform Act.

Taking this together, the HCCA [Health Care Consent Act] does not limit the courts’ jurisdiction to make therapeutic orders in the child’s best interests. A court must always consider a child’s view and preferences, but a child’s refusal to participate in a therapeutic intervention will not necessarily determine whether a court can make such an order. Rather, a court must assess the child’s maturity and weigh their wishes accordingly, in relation to the various factors listed in section 24(2) of the Children’s Law Reform Act.

There are of course risks in making therapeutic orders. The child may refuse to comply. A health care practitioner may consider that the child is capable and that he or she cannot override the child’s refusal. The attempts at therapeutic intervention may fail. Courts cannot fix every problem.

That said, time and time again, experienced family court judges have emphasized the value of access to a broad variety of remedial measures. Again, in Leelaratna, the trial judge observed, “there are often no legal solutions to family problems. Therapeutic orders can be very effective tools to help the family move forward, reduce the parental conflict, and help children transition though the emotional turmoil of their parents’ litigation in a healthier way”: at para. 52, see also Fiorito, where a reversal of custody and therapy was ordered to remedy a father’s estrangement from his children. Judges deciding custody cases should be enabled to create or support the conditions which are most conducive to the flourishing of the child.”

A.M. v. C.H., 2019 ONCA 764 (CanLII) at 65-73

“The court has the power to order that the access of a parent be supervised.  See s. 16(6) Divorce Act. The onus is on a person seeking to limit access to prove that the requested access restrictions are in the best interests of a child. See Lee v. Albrecht, supra; Hagen v. Muir, [2000] B.C.J. No. 786 (S.C.). Supervised access is not a permanent solution to access problems. Supervised access should only be used to alleviate a short-term problem and not to provide a long-term visitation arrangement.  See M.(B.P.) v. M.(B.L.D.E.) (1992), 1992 CanLII 8642 (ON CA), 97 D.L.R. (4th) 437 (Ont. C.A.).”

         Shaikh v. Martin, 2017 ONSC 5842 (CanLII) at 93