Siegel's Family Court Calendar

“The Supreme Court of Canada stated the following in Michel v. Graydon, 2020 SCC 24, commencing at para. 10:

[10]   In D.B.S., this Court endorsed certain important principles governing orders for child support (including retroactive child support) that merit restating here:

–         Child support is the right of the child, which right cannot be bargained away by the parents, and survives the breakdown of the relationship of the child’s parents (para. 38);

–         Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together (para. 38);

–         The child support owed will vary based upon the income of the payor parent, and is not confined to furnishing the “necessities of life” (paras. 38‑45).

–         Retroactive awards are not truly “retroactive”, since they merely hold payors to the legal obligation they always had to pay support commensurate with their income (para. 2);

–         Retroactive awards are not confined to “exceptional circumstances” or “rare cases” (para. 5); and

–         In determining whether to make a retroactive award, the payor parent’s interest in certainty in his/her obligations must be balanced with the need for “fairness and . . . flexibility”. A court should consider whether the recipient parent’s delay in seeking retroactive support was reasonable in the circumstances, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail (para. 133).

The Supreme Court went on to state at para 32:

[32]   Retroactive child support awards will commonly be appropriate where payor parents fail to disclose increases in their income. Again, D.B.S. is instructive: “a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct” (para. 107). And where the strategy for avoiding child support obligations takes the form of inadequate or delayed disclosure of income, the effect on the child support regime is especially pernicious. This is because the methodology adopted by the Federal Child Support Guidelines, SOR/97‑175, which are expressly incorporated in the FLA, results in information asymmetry. Apart from shared parenting arrangements, the Guidelines calculate child support payments solely from the payor parent’s income. At any given point in time, therefore, the payor parent has the information required to determine the appropriate amount of child support owing, while the recipient parent may not. Quite simply, the payor parent is the one who holds the cards. While an application‑based regime places responsibility on both parents in relation to child support (D.B.S., at para. 56), the practical reality is that, without adequate disclosure, the recipient parent will not be well‑positioned to marshall the case for variation.

…

The Supreme Court stated in Colucci v. Colucci, 2021 SCC 24, stated commencing at para. 4:

[4] The applicable framework must give effect to the objectives and provisions of the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”), particularly the core objective of safeguarding the child’s right to a “fair standard of support” (s. 1). Retroactive variation applications also require courts to weigh the certainty and predictability provided by an existing court order against the need for flexibility in a system that ties support to fluctuating payor income. The framework set out below balances these interests in a way that incentivizes payment of the right amount of child support when it is due and the timely disclosure of financial information — the linchpin of a just and effective family law system. Rules which create perverse incentives to ignore or postpone parental support obligations are to be firmly rejected in favour of legal standards designed with the fundamental purposes of child support in mind.

In Colucci, para. 34 the Supreme Court went on to state:

[34] The enactment of the Guidelines in 1997 marked a paradigm shift in Canadian child support law away from a need-based approach to one which clearly established the child’s entitlement to support commensurate with the payor’s income (D.B.S., at paras. 42-45). The Guidelines rest 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” (Divorce Act, s. 26.1(2)). Section 3 of the Guidelines provides that the amount of child support is presumptively determined in accordance with the applicable table in Schedule I. Putting aside shared custody arrangements, the tables generally allow parents and courts to calculate the amount of child support owing based on just two numbers: the payor’s income, and the number of children to be supported…”

          Tyndall v. Tyndall, 2022 ONSC 131 (CanLII) at 61-62, 64-65

“Please, Please, Please…don’t use a police station for parenting exchanges.

If you think mere proximity to the cop shop will make unruly adults behave – or protect children from emotional harm – you should have sat in on any one of the 22 days of this nasty trial.

This was a motion to change a consent final order.  Except, clearly the parents never really regarded the order as final.  More like an interlude in a never-ending high-conflict war.  A strategic pause while they assembled better evidence for inevitable motions and cross-motions.

They love their son and hate each other.

They really love their son.

And really hate each other.

We delude ourselves if we think court orders will ever overcome such powerful and conflicting emotions.

1. 1. 1.    All we can really do is try to separate the good from the bad.
      2.    Promote more opportunities for the love.
      3.    And eliminate anyopportunities for the hate.

But routinely sending combative parents with their anguished children to a police station is an abdication of responsibility.

1. 1. 1.    It’s like assembling a bomb every week and driving it to the fire hall.
      2.    Sure, it’s nice to know first responders will be on the scene if there’s an explosion.
      3.    But why set the stage for predictable disaster?
      4.    Wouldn’t it make more sense to defuse the bomb ahead of time?  To keep volatile ingredients – volatile parents– as far apart as possible?

The “safety” rationale for police station exchanges is dubious at best.

1. 1. 1. The police aren’t equipped for this type of service.  The station is not a child-friendly environment.
      2. They don’t know you’re coming.
      3. They don’t want you there.
      4. They don’t know anything about you, or what to watch for.
      5. Generally, they’re so busy with other duties, they may not notice who’s doing what.
      6. At any given time, there may not even be a police officer anywhere in sight.

And if we’re choosing a location intended to intimidate adults – what about scaring the kids?

1. 1. 1. By the time high conflict couples make it to family court, their children have already been exposed to far too much chaos and upset.
      2. Many have experienced significant family violence (with its recently expanded definition).
      3. Painful memories of officers attending their home for family trouble calls may be triggered by the dramatic and hyper-stimulating stationhouse environment (the police cars, the uniforms, the guns, the crackling radios, the commotion, the people in crisis).
      4. We can’t undo the unhappiness these children experienced pre-separation.   But why perpetuate the trauma by exposing them to more negativity and upset in the strange and frightening environment of a police station lobby?
      5. These are emotionally vulnerable children who need rescue from parental conflict.  Not a ringside seat.

What message do police station exchanges convey to the innocent child?

1. 1. 1. That the trouble’s not over?
      2. That their world isn’t safe yet?
      3. That they still need to worry?
      4. That someone they love is dangerous or can’t be trusted?
      5. That something bad could happen every time their parents meet?
      6. That officers with weapons might have to intervene?
      7. That one of their parents might get taken away or hurt or punished?
      8. That every transition between parents will be anxiety-producing?
      9. How is a fragile young mind supposed to process so much upsetting information?

Candidly, far too little thought goes into selecting a police station for pick-ups and drop-offs.  It’s a simplistic, convenient default position.

1. 1. 1. It’s an option if you can’t think of anything else.
      2. It’s always open.  You don’t have to re-arrange your schedule
      3. It’s free.
      4. It’s quick.
      5. There’s no waiting list. It’s available instantly and for as long as you want.
      6. There’s no paperwork or pre-arrangement.
      7. There’s usually free parking or bus service.
      8. It requires little effort and not much parental insight or discipline.
      9. It’s open even during the pandemic.
      10. It checks off a lot of boxes for adults.

But how is any of this child-focused?

1. 1. 1. We are constantly told that the best interests of the child must always prevail over adult preference and convenience.
      2. Why then do we gravitate toward this obviously terrible option, simply because adults lack the creativity or commitment to work at better solutions?
      3. Should children suffer just because parents won’t put more effort into solving the problems they created?

As soon as police station exchanges are proposed, the response should be obvious:

1. 1. 1. If the level of conflict is so great that these parents need armed guards to keep the peace, they shouldn’t be having face-to-face contact anywhere.
      2. Even if actualmisconduct is averted, children who have been exposed to family violence will likely experience heightened anxiety whenever they see their parents together.  The presence of police officers isn’t calming.  To the contrary, it reinforces the child’s perception of imminent danger.

Why am I starting this judgment with such a strong warning?  Because this trial could have been avoided – and a four-year-old boy could have had a much happier life – if only the parents had selected an exchange location better than Hamilton Police Station 30.”

            K.M. v. J.R., 2022 ONSC 111 (CanLII) at 1-15

“Family law litigants are responsible not only for their litigation positions, but also for the financial consequences to both parties of funding those positions. A former spouse who engages in “win at all costs” litigation chooses to be as answerable for the resulting litigation fees to the other side as for one’s own fees.”

            S. v. A., 2022 ONSC 55 (CanLII) at 74

“I want to take this opportunity to wish all of the subscribers to the Siegel Family Court Calendar a peaceful and restful break.

I’ve been doing the Calendar now for 4.5 years (about 2.5 years longer than I ever intended) and, despite the amount of work involved, find it stimulating, challenging, and, especially when I hear from many of you with your feedback, rewarding and fulfilling.

See you in 2023, with all new quotes starting January 4^th.”

         Brahm Siegel

“The leading case on classifying legal issues as questions of law, fact or mixed fact and law is Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 (“Southam“). In Southam, the Supreme Court of Canada commented, at para. 35, that, “[b]riefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.”

The parties agree on the appropriate standards of review. The standard of review on questions of law is correctness, while findings of fact and factual inferences are reviewable for palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10 and 25. A question of mixed fact and law involves the application of a legal standard to a set of facts, and is subject to review for palpable and overriding error, except for extricable questions of law: Housen, at para. 26. A question of law may be extricable from a question of mixed fact and law if, for example, the incorrect legal standard is applied, or a part of a legal test is not considered by the decision-maker. The extricable question of law is reviewed on a correctness standard.

The standard of palpable and overriding error was further articulated by the Ontario Court of Appeal in Waxman v. Waxman, 2004 CanLII 39040 (ON CA), at paras. 296, 297 and 300:

[296] The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result.  A “palpable” error is one that is obvious, plain to see or clear: Housen at 246.  Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

[297] An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact.  Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”.  The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254 at 281.

[300]…First and foremost, as indicated above, the “palpable and overriding” standard applies to all factual findings whether based on credibility assessments, the weighing of competing evidence, expert evidence, or the drawing of inference from primary facts.

In Spadacini-Kelava v. Kelava, 2020 ONSC 5561 (CanLII), at para. 32, Kurz, J. referred to the decision of Desormeau, J. in Rosenberg v. Yanofsky, 2019 ONSC 6886, as offering an excellent review of the law regarding the standard of review of the decision of an arbitrator in a family law proceeding, in which she wrote:

7  The decision of an arbitrator deserves as much deference on appeal as does a decision of a trial judge: Palmer v. Palmer, 2010 ONSC 1565 (Ont. S.C.J.) at para. 3 (cited in Reati v. Racz, 2016 ONSC 1967, at para. 28)

8  In reaching an award, an arbitrator sits in the same position as a judge in a lower court when a decision is appealed to a higher court, and for a decision to be overturned on appeal, the appellate court must find that the reasons amount to an error [in] law and that the decision is not correct, or that a palpable and overriding error was made on a question of mixed fact and law: Gray v. Brusby, 2008 CarswellOnt 4045 (Ont. S.C.J.) at para. 27, and Palmer, supra, at para. 5, cited in Reati v. Racz, 2016 ONSC 1967, at para. 29.

…

13  The Court should not interfere with an arbitrator’s award unless it is satisfied that the arbitrator acted on the basis of a wrong principle, disregarded material evidence, or misapprehended the evidence: O’Connell v. Awada, 2019 ONSC 273, at para. 9, citing with approval Robinson v. Robinson, [2000] O.J. No. 3299 (Ont. S.C.J.), at para. 5.

The issues raised in this appeal involve questions of law; questions of fact; and questions of mixed fact and law. The Arbitrator’s determinations with respect to questions of fact and mixed fact and law are entitled to deference and cannot be interfered with unless they amount to palpable and overriding error in facts or in mixed fact and law. The question is whether, the Arbitrator erred, with respect to identifying the correct legal test (an error of law), or correctly identified the legal test but erred in applying the test to the facts (an error of mixed fact and law).

Due to the fact-based and discretionary nature of family law cases, trial judges and arbitrators must be afforded a high degree of deference: see Wright v. Holmstrom, 2016 ONCA 360.”

         Solcz v. Solcz, 2021 ONSC 8457 (CanLII) at 99-104

“Parenting orders are inherently exercises of discretion: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13. A trial judge’s exercise of discretion and factual findings in connection with it are entitled to deference on appeal: A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, at para. 4. The caution an appellate court must show before interfering with a parenting order by a trial judge is all the more pronounced where, as here, the decision has already been implemented and we are asked to interfere with the trial judge’s step by step process mid-course, but without current information.”

         W.S. v. P.I.A., 2021 ONCA 923 (CanLII) at 3

“In our view, where the amount of child support that should have been paid in a prior year is under consideration, the payor’s actual income for that year is the amount that should be used to calculate support for the prior period, so long as the payor’s actual income for the prior period is known.

When calculating prospective child support, income from the previous year is used to calculate future support, essentially as a matter of convenience, because actual income for the upcoming year is incapable of exact determination. However, where, as here, the actual amount of income earned in a prior year is known, it is that amount that should determine the quantum of support that should have been paid.

Our conclusion in this regard is rooted in common sense – but also in  s.2(3) of the Child Support Guidelines, SOR/97-175, which states, “[w]here, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used.”

Further, we agree with the following comments of Baltman J. in Desjardins v. Bart, 2006 CanLII 33701 (ON S.C.) at para. 17:

Although the normal practice, based on convenience, is to address child support going forward based on the previous year’s income, once the court is intervening and looking backwards at a particular period, it makes sense to adjust child support retroactively for the relevant period, which in this case is 2004.”

         Vanos v. Vanos, 2010 ONCA 876 (CanLII) at 13-16

“Compensatory support is intended to compensate a spouse upon the breakdown of the marriage for contributions made to the marriage, such as sacrifices made for a spouse’s career and loss of economic opportunity sustained as a result of raising children.  This is primarily applicable where a property division is unable to achieve this result.  Where a spouse has the capacity to be self-sufficient but the spouse’s ability to enjoy the same standard of living as during the marriage has been negatively impacted as a result of the marriage breakdown, compensatory support helps to ensure that the economic impact of this breakdown is equitably shared.  Non-compensatory support arises where there is an economic dependency that may be due to a variety of factors such age, illness or disability.  These factors need not necessarily be connected to the marriage.”

Peerenboom v. Peerenboom, 2018 ONSC 7562 (CanLII) at 77

“As I have previously emphasized in Kerr v. Kerr, the Court of Appeal statement in Papp v. Papp that clear and compelling evidence is typically required to disrupt the status quo on a motion for temporary relief did not establish a presumption that the status quo should continue absent clear and compelling circumstances that make a change absolutely necessary. On motions dealing with temporary custody, residence and access there is no presumptive rule in favour of the status quo that must be rebutted by the party seeking to change the existing arrangements. As the Court of Appeal emphasized in Papp v. Papp, the applicable test remains the best interests of the child. In applying that test, there is an obligation on the part of the court to carefully scrutinize and weigh the quality, magnitude, and strength of the evidence adduced in support of a change to the status quo arrangements, and to ensure that the evidence is sufficiently compelling before acting upon that evidence to vary the existing arrangements. The Ontario Divisional Court highlighted the importance of avoiding presumptive rules on motions relating to temporary custody and access in the case of Holt v. Anderson, 2005 CarswellOnt 5158, (Div. Ct.). It emphasized that the overriding consideration in such cases is the best interests of the child, and that the maintenance of the status quo arrangements as of the time of the hearing should not be elevated into an immutable principle.

The Supreme Court of Canada has also highlighted the importance of avoiding rigid rules and presumptions in carrying out the best interests analysis in custody and access cases.

In determining the issue of whether the status quo respecting decision-making and timesharing should be changed in the context of a motion for temporary relief, it is important to maintain a focus on what is meant by “the status quo.” The courts have clarified that the phrase “status quo” with respect to timesharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. (Irwin v. Irwin(1986), 3 R.F.L. (3d) 403 (H.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (S.C.J.); Horton v. Marsh, 2008 Carswell NS 371 (S.C.))  I agree with this proposition. This court has held in many cases that the status quo that is relevant on temporary custody and access motions is that which existed prior to the separation between the parties. (see, for example Howard v. Howard (1999), 1 R.F.L. (5^th) 375 (S.C.J.)).  In my view, for the purposes of applying the principles set out in Papp v. Papp regarding the strength of the evidence required to disrupt the status quo arrangement, the status quo that is relevant is that which existed just prior to the parties’ separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp.”

            Batsinda v. Batsinda, 2013 ONSC 7869 (CanLII) at 26-28

“…it is important to observe, as the trial judge did, that spousal support is driven by both compensatory and non-compensatory, or needs-based, considerations: Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, at para. 201. The appellant’s argument focuses only on errors in assessing need, despite the fact that the respondent’s strongest entitlement to support was compensatory: to “recognize any economic advantages” arising from the marriage (Divorce Act, s. 15.2(6)(a)), to compensate her for her partnership role during a marriage of nearly 25 years, and to give her a continued share of the fruits of that partnership.

In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at 870, the Supreme Court of Canada explained how a court should evaluate the compensatory grounds for spousal support:

Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), supra, and Linton v. Linton, supra). Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.

The trial judge was entitled to approach the question of the respondent’s entitlement by referring to the standard of living the parties enjoyed during their marriage. The trial judge was also entitled to determine that “without spousal support, Ms. Plese w[ould] have suffered economic hardship as a result of the end of the marriage.” The respondent’s contribution to the parties’ financial security in the early years of the marriage enabled the appellant to take business risks that might otherwise not have been possible. Coupled with the respondent’s role as the primary caregiver to their three children, the trial judge properly concluded that there was a firm basis on which to make a compensatory spousal support award.”

         Plese v. Herjavec, 2020 ONCA 810 (CanLII) at 40-42