“Whether or not to grant an adjournment is a matter for judicial discretion. The scope for appellate review is limited to whether the discretion is exercised judicially on proper principles, after considering all relevant factors: Khimji v. Dhanani, [2004] 69 O.R. (3d) 790 (C.A.), at para. 20, per Laskin J.A. in dissent, but not on this point.”
September 19 – Basis For Overturning Support Orders
“In Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, the Supreme Court of Canada indicated that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong.”
September 18 – Varying Support Orders
September 18 – Varying Support Orders
“The test for varying a support order was established by the Supreme Court of Canada in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670.[9] A variation motion is not to be treated as though it were an appeal of the original order. It is to be granted only if there is a material change in circumstances, that is,
[A] change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.”
Bemrose v. Fetter,2007 ONCA 637 (CanLII) at 67
September 17 – Fiduciary Relationships in Family Law
“In sum, it is by no means certain that permitting civil actions against the custodial parents can be said to be in the best interests of the child, whether this be by creating a tort or recognizing a fiduciary relationship arising out of a court order. Resort even to fines and imprisonment, which is permitted by the Act, has been described as not “entirely appropriate”; see James G. McLeod, “Annotation” to O’Byrne v. Koresec(1986), 1986 CanLII 1315 (BC SC), 2 R.F.L. (3d) 104, at p. 105. That is because these may encroach on the resources of the custodial parent and because the child may suffer from the knowledge that one parent has taken such drastic action against the other. This applies, and in some respects with greater force to a legal action. Damages can impose a far greater financial burden than the fine of up to $1,000 which may be imposed under the Act (s. 39(1)). Furthermore, though the imprisonment of one parent at the behest of the other may be damaging to the child, litigation by one against the other over a protracted period may well be even more damaging.
…For these reasons, I cannot accept that a breach of the statutorily authorized order in the present case gives rise to a fiduciary relationship on which a cause of action can be grounded.”
Frame v. Smith, [1987] 2 SCR 99, 1987 CanLII 74 (SCC) at 20-21
September 16 – Child Support & Incomes Over $150K
“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”.
- 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
September 13 – Costs At Each Step
“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.”
September 12 – Relevance of Spousal Support Advisory Guidelines
“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.).”
September 10 – When Should Court Interfere With Mediation-Arbitration
“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.”
September 8 – Intervening As Added Party On Appeal
“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.”
September 7 – Appealing Where Trial Order Not Complied With
“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.”