Siegel's Family Court Calendar

“The Family Law Act and the Child Support Guidelines govern the obligations of a parent to pay child support and to contribute to child care expenses. If an adjustment is claimed with respect to amounts that were or should have been paid in the past, the proper remedy is to apply for an adjustment under the applicable legislative scheme. Absent a determination under such scheme, there is simply no entitlement to either a refund for past payments or compensation for payments not received and an action for damages does not therefore lie in relation to such amounts.

Considered in this context, the appellant’s civil action for damages against the respondent is an abuse of process. Allowing such claims to proceed would permit family law litigants to circumvent the statutory scheme governing family law claims and introduce a potentially chaotic duplication of proceedings into an already overburdened family law justice system. See Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), rev’d on other grounds 2002 SCC 63 (CanLII), [2002] 3 S.C.R. 307, in which Finlayson J.A. described the court’s inherent power to invoke the doctrine of abuse of process as follows at para. 31:

The court can still utilize the broader doctrine of abuse of process.  Abuse of process is a discretionary principle that is not limited by any set number of categories.  It is an intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy.”

Cunningham v. Moran, 2011 ONCA 476 (CanLII) at 39-40

“Overall, as this court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.”

Boucher v. Public Accountants Council (Ontario),2004 CarswellOnt 2521 (C.A.) at 26

“Review orders under s. 15.2 have a useful but very limited role.  As the amicus curiaepointed out, one or both parties at the time of trial may not, as yet, have the economic wherewithal even to commence recovering from the disadvantages arising from the marriage and its breakdown.  Common examples are the need to establish a new residence, start a program of education, train or upgrade skills, or obtain employment.  In such circumstances, judges may be tempted to attach to s. 15.2 orders a condition pursuant to s. 15.2(3)of the Divorce Act, that entitles one or other or both of the parties to return to court for a reconsideration of a specified aspect of the original order.  This will properly occur when the judge does not think it appropriate that at the subsequent hearing one or other of the parties need show that a change in the condition, means, needs or other circumstances of either former spouse has occurred, as required by s. 17(4.1)of the Divorce Act.

Review orders, where justified by genuine and material uncertainty at the time of the original trial, permit parties to bring a motion to alter support awards without having to demonstrate a material change in circumstances:  Choquette v. Choquette(1998), 1998 CanLII 5760 (ON CA), 39 R.F.L. (4th) 384 (Ont. C.A.).  Otherwise, as the amicus curiaefairly points out, the applicant may have his or her application dismissed on the basis that the circumstances at the time of the variation application were contemplated at the time of the original order and, therefore, that there had been no change in circumstances.  The test for variation is a strict one:  Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, at pp. 688-90.”

Leskun v. Leskun, [2006] 1 SCR 920, 2006 SCC 25 (CanLII) at 36-37

“In brief, it is well established that in interpreting legislation, there is a presumption that the legislature intends to conform to international law and to live up to its international obligations. That presumption may be rebutted, but to do so, the language of the legislation at issue must be clear and unequivocal. The language of the Family Law Rulesdoes not clearly compel the result that the Legislature of Ontario intended to default on Canada’s international obligations under the Hague Service Convention.

While the law is not completely settled on the question of whether the requirements of compliance with the Hague Service Convention may be dispensed with, the decision of the Ontario Court of Appeal in Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189, 115 O.R. (3d) 1(Ont. C.A.) makes it clear that this case is not a case where the “access to justice” exception, if it exists, could be invoked.

…

66      We recognize that the Family Law Ruleswere enacted in 1999 to create a separate set of rules for family law proceedings. The Family Law Rules, however, were silent concerning service of documents outside Ontario. Silence cannot support a finding that Ontario, seven years after implementing the Hague Service Convention in family law matters, reversed its decision, thereby causing Canada to default on an international obligation. If Ontario wishes to declare that the Hague Service Convention does not apply to family law matters within its exclusive jurisdiction, it must do so in clear and unequivocal language. (See R. v. Hape, at para. 53; Metcalfe Estate v. Yamaha Motor Canada Ltd., 2012 ABCA 240, 536 A.R. 67(Alta. C.A.) , at para. 48.)”

Wang v. Lin, 2016 ONSC 3967 (Div. Ct.) at 7-8 & 66

“The most basic obligation in family law is the duty to disclose financial information.   This requirement is immediate and ongoing. 

Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party.  It also impacts the administration of justice.  Unnecessary judicial time is spent and the final adjudication is stalled.

Financial disclosure is automatic.  It should not require court orders – let alone three – to obtain production.”

Roberts v. Roberts, 2015 ONCA 450 at 11-13

“An inequality of bargaining power may arise in a number of ways.  As Boyle and Percy, Contracts:  Cases and Commentaries(4th ed. 1989), note, at pp. 637-38:

[A person] may be intellectually weaker by reason of a disease of the mind, economically weaker or simply situationally weaker because of temporary circumstances.  Alternatively, the “weakness” may arise out of a special relationship in which trust and confidence has been reposed in the other party.  The comparative weakness or special relationship is, in every case, a fact to be proven.”

Norberg v. Wynrib, 1992 CanLII 65 (SCC) at 33

“The role of the trial judge in relation to expert witnesses has also evolved. Appellate courts have repeatedly instructed trial judges that they serve as gatekeepers when it comes to the admissibility of expert opinion evidence. They are required to carefully scrutinize, among other things, an expert witness’s training and professional experience, along with the necessity of their testimony in assisting the trier of fact, before the expert is qualified to give evidence in our courts.”

Bruff-Murphy v. Gunawardena, 2017 ONCA 502 (CanLII) at 2

“The motion judge had the power to strike the appellant’s pleadings due to her repeated refusals to obey court orders: see rule 14(23) of the Family Law Rules, O. Reg. 114/99.  I have every sympathy for the court which had given Ms. Mongrain a number of opportunities to participate, to be heard, and to assist in the proper resolution of this matter.

At the same time, however, courts should use the utmost caution in striking pleadings where children’s interests are involved and it is generally preferable to avoid using that sanction: see, for example, Haunert-Faga v. Faga (2005), 203 O.A.C. 388 (C.A.).  The reason for that admonition is simple – in order to make custody and access decisions in the best interests of the child, the court needs the participation of both parties”

King v. Mongrain, 2009 ONCA 486 at 30-31

“In my respectful view, it was an error in principle to apply the Table approach. Antoni’s annual receipt of almost $10,000 in the form of ODSP income support was, in itself, sufficient to displace the “one-size-fits-most” approach in s. 3(2)(a) of the Guidelinesin favour of the “tailor made” approach in s. 3(2)(b). That approach would have regard to Antoni’s “condition, means, needs and other circumstances”. That approach is particularly appropriate in light of Antoni’s disability and society’s commitment to share in his care.

Antoni’s eligibility for ODSP is based on a determination that his budgetary requirements exceed his income. Since he receives a payment in respect of board and lodging, it is reasonable to conclude that he established a budgetary requirement for this expense. As his mother and her spouse provide that board and lodging, it is also reasonable to conclude that some portion of the ODSP he receives is to enable him to make a contribution to the cost of his board and lodging.

I agree with Kiteley J. that the trial judge erred in finding the ODSP payments were Antoni’s to use as he wished – that he “could use them to take a trip, buy a car or buy liquor” and in describing the payments as Antoni’s “spending money of his own”: paras. 21 and 26. To treat the ODSP as discretionary “spending money” does not reflect the purpose of ODSP income support. The money is paid to the mother as Antoni’s trustee and she is required to report annually on how the money has been spent.

I also agree with Kiteley J.A. that there is at least the potential for overlap between the amounts paid by the father for child support and the amount received by Antoni as income support for board and lodging. As Kiteley J. observed, at para. 106:

As indicated in Ansell#1,the Child Support Guidelineswere intended to represent a calculation of average expenditures for children that includes items otherwise categorized as “board and lodging”. The overlap between the reason for ODSP income support and child support must be recognized in the analysis as to whether the approach in s. 3(2)(a) is inappropriate. It was an error of law to have concluded otherwise.

As the majority in the Divisional Court noted, it would be reasonable to conclude that a significant portion of child support would be intended to contribute to the “child’s needs for shelter, food and clothing and the multitude of other expenses associated with raising a child” (para. 19).

I acknowledge the majority’s concern about circularity – that reducing child support to reflect the child’s receipt of ODSP could be unfair because ODSP payments may themselves be reduced due to the recipient parent’s application of child support to the non-exempt living expenses of the child. However, a reduction of ODSP would only be triggered by an increase in the amount of child support which the mother gives directly to Antoni or uses for his benefit. Calculating support under s. 3(2)(b), which may or may not result in an amount different from the Table amount, will not necessarily affect the mother’s use of the support payments or reduce the amount of the ODSP payments that Antoni receives. The impact, if any, of the change in support on ODSP is a matter that can be taken into account under the s. 3(2)(b) approach.

ODSP reflects society’s commitment to sharing financial responsibility for adults with disabilities. It makes little sense to calculate child support on the basis that this responsibility falls only on the parents. In my view, the assumption of some responsibility by the state and Antoni’s receipt of income support for his board and lodging make the Table approach inappropriate. These circumstances change the equation and call for a bespoke calculation based on Antoni’s unique condition, means, needs and other circumstances, including his receipt of ODSP, and the ability of his parents to contribute to his support.”

Senos v. Karcz, 2014 ONCA 459 (CanLII) at 58-64

“Our Court has often emphasized the rule 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…  There are strong reasons for the significant deference that must be given to trial judges in relation to support orders.  This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly.  It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence.  This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge.  Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently.”

Hickey v. Hickey, [1999] 2 S.C.R. 518 at 11-12