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Law Times Focus on Family Law Television Show

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Yamri Taddese of the Law Times has a focus on Family Matters with Harvey Brownstone:

Ontario Court Justice Harvey Brownstone says he’s tearing down the thick shroud over Canada’s judiciary by moving readily between the bench and the TV spotlight.

The family court judge has grown tired of looking on from the bench as litigants struggle to navigate the justice system. That’s why, Brownstone says, he didn’t hesitate when a producer approached him about hosting a TV show called Family Matters.

My Support Calculator is a proud sponsor of Family Matters.

Annual Income-based Readjustments of Final Spousal Support Order

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Guttmann v. Guttmann, a unanimous decision of the British Columbia Court of Appeal, deals a husband’s appeal from a final spousal support order. The parties in this case were married for 22 years, and the spousal support order was issued as part of their divorce.

The portion of the support order that was contested by the husband read as follows:

To calculate the quantum of spousal support to be paid by the [husband] to the [wife], the mid-range spousal support payable on the Spousal Support Advisory Guidelines shall be used. The [husband]’s income for the calculation on the Spousal Support Advisory Guidelines is $70,000.00 per annum and the [wife]’s income to be used is $31,700.00 per annum. The spousal support amount payable by the [husband] to the [wife] shall be adjusted annually based on the actual amounts paid to the [husband] for the year, which amount shall include the [husband]‘s bonus.

The husband put forward several grounds for appeal, all of which were rejected by the Court of Appeal.  Justice Frankel dismissed the husband’s appeal in this brief, but notable, judgement.

The husband first argued that the trial judge erred because he did not assess the wife’s entitlement to spousal support prior to making the support order. Justice Frankel disagreed. He found that the wife’s entitlement to spousal support was not put before the trial judge as an outstanding issue for determination. Rather, the trial judge was only asked to determine the husband’s income for 2012 and the resulting spousal support obligation.

The husband next argued that the trial judge erred when he fixed the husband’s 2012 income for support purposes at $70,000. Specifically, the husband claimed that:

  1. there was no basis for the $70,000 figure, and;
  2. the trial judge should have averaged the husband’s income from 2009, 2010, and 2011 to determine his income for support purposes.

The Court of Appeal was not persuaded by either of these arguments. Justice Frankel first noted that fixing the income at $70,000 was actually beneficial to the husband, because the evidence available at trial suggested that the husband was actually on track to earn over $100,000 in 2012. Justice Frankel concluded that:

[7]       The chambers judge was asked to determine [the husband’s] income for the purposes of his 2012 spousal support obligations. On the limited information available to the judge, a good indicator of [the husband’s] ability to earn income on a going-forward basis was his actual income for 2011, which included substantial bonuses. While the judge did not provide a mathematical basis for arriving at the $70,000.00 figure – and counsel were unable to provide us with one – that amount cannot, as submitted by [the husband], be said to be either unfair or unreasonable.

Justice Frankel’s findings on this point are in line with the leading authorities on the issue of determination of income for support purpose (see for example: Dickie v. Dickie, 2001 CanLII 28203 (ON SC); Bell v. Bell, 1999 BCCA 497; Jakob v. Jakob 2010 BCCA 136; Dabrowska v. Bragagnol, 2008 ONCJ 360.

General principles borne out of these cases include the following:

  • The determination of income for support purposes is based on a payor’s capacity to pay;
  • Income for support purposes should be based on the payor’s current income, unless current income does not accurately reflect a payor’s capacity to pay;
  • A payor’s income from the previous year is generally a good indicator of his/her current income;
  • When determining ongoing support obligations, courts should not average a payor’s income from prior years as a matter of course, especially if current and reliable income information is readily available and there are no other mitigating considerations;
  • In certain circumstances it may be more appropriate to average a payor’s income to determine ongoing support, even when current income information is available. Courts have averaged income in circumstances where:
    • the payor’s income is unpredictable or fluctuates significantly from year to year (for ex: if the payor works on commission, or if the payor’s income depends on external factors such as company performance or market performance);
    • the payor’s current income does not accurately reflect his/her capacity to pay support (for ex: the payor’s income in the previous year was uncharacteristically high or uncharacteristically low, and is unlikely to be repeated in the near future), or;
    • The payor’s current financial circumstances are anomalous and likely to change in the near future

The husband next argued that the trial judge’s erred because he did not specify an end date for spousal support. Justice Frankel noted that, prior to the appeal, the husband never asked for an end date to be included in the order. He also noted that nothing prevents the husband from applying for a variation of the order in the future, if he ever feels that a material change in circumstances has occurred to warrant a termination of his support obligations. Justice Frankel concluded that the trial judge did not err in making a support order without a termination date.

Finally, the husband argued, unsuccessfully, that the trial judge erred in fixing spousal support in the mid-range of Spousal Support Advisory Guidelines (SSAGs). After reviewing the husband’s evidence, Justice Frankel concluded the husband failed to show any basis upon which the Court could interfere with the trial judge’s decision about quantum. Justice Frankel’s conclusion on this point illustrates the broadly accepted principles set out in the Supreme Court of Canada’s decision in Hickey v. Hickey ([1999] 2 SCR 518, at para 10-12), namely that:

  • Trial and motions judges have broad discretion to determine the appropriate level of spousal support in each case before them, and this discretion is limited only by legislation (for example: section 15 of the Divorce Act or the relevant sections of applicable provincial legislation);
  • Appeal courts should not interfere with a trial or motions judge’s decision about quantum of spousal support, unless (1) there is clear evidence that the judge made a mistake about the law and/or facts of the case, and (2) the judge’s decision would have been different if he/she did not make the mistake.

Guttmann is most noteworthy because the Court of Appeal in this case explicitly upheld the portion of the trial judge’s order that required the parties to adjust spousal support every year based on the husband’s actual income in that year. Unlike with child support orders, it is highly unusual for spousal support orders to require payment readjustments to account for the annual changes in a payor’s income.

Only a handful of reported cases that contain orders similar to Guttmann. These cases all appear to originate in British Columbia (like Guttmann), and in some cases, the annual readjustment order is made only because the parties have agreed to such an arrangement. See for example: Jones v. Jones, 2012 BCSC 1231; Vallée v. Vallée, 2012 BCSC 1780; K.S.F. v. S.M.F., 2011 BCSC 1563.

It is much more common for spousal support orders to be ‘fixed’ for a period of time, with a right seek a variation if there is a material change in circumstances, and sometimes also a right to review the support arrangements after a specific date without having to demonstrate a material change.

It should be noted that courts across Canada do sometimes order annual spousal support adjustments to account for annual increases in the cost of living increases. However, such adjustments are generally based on increases in the Consumer Price Index (CPI) and result in only minor changes to support payments (an increase of 2-3%/year). In contrast, the type of support order that has been upheld by the Court of Appeal in Guttmann can potentially result in much more significant variations in spousal support payments from year to year.

An annual, income-based readjustment of spousal support has the potentially to benefit both recipients and payors:

  • it would allow a support recipient to automatically share in, and benefit from, increases in the  payor’s income, without being put to the cost of seeking a variation, and without having to demonstrate that an increase in the payor’s income meets the threshold of “material change”; and
  • It would largely eliminate the financial burden faced by a payor whose income has decreased by an amount that does not meet the threshold of a “material change”, but may nonetheless have a significant impact on the payor’s ability to pay support and meet other financial obligations.

However, such an order could also result in several serious issues:

  • the unpredictable payment pattern may be contrary to some of the objectives of spousal support awards, including the important objectives of certainty and finality (see Miglin v. Miglin, 2003 SCC 24;
  • Annually adjusted support awards may deter payors from seeking or accepting opportunities to increase earnings in order to avoid sharing the benefit with the recipient;
  • Sharing in post-separation increases in income may not be appropriate (See Pendleton v. Pendleton, 2010 BCSC 1167, for a good review of this issue);
  • While “fixed” support awards encourage payors to maintain income at a level sufficient to meet financial obligations, annual readjustments may incentivize payors to minimize their earnings in order to reduce support payments. This could potentially lead to increased litigation about intentional underemployment; and
  • The necessity for annual interaction may result in increased potential for conflict, especially in highly contentious cases.

Guttmann appears to be the first appellate decision in Canada to uphold a spousal support order that requires annual, income-based readjustments. It will be interesting to see whether courts in other provinces will use this appellate authority to issue similar orders, and what the long-term effect of such orders might be.

What Does a Typical Divorce Case Look Like? (DeAngelis v. Zanin)

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What does a typical divorce case look like as it goes through the courts? The recent Ontario Superior Court of Justice trial decision by Justice Parayeski in DeAngelis v. Zanin is a good case study to provide litigants with helpful context about judicial decision-making in family law matters.

The parties were married in 2004, had one child (age 6 at trial), and separated in 2010. Although the parties were able to resolve many of their issues (and were commended for doing so by the trial judge), they required the court’s intervention to reach a final resolution. Justice Parayeski addressed the outstanding issues under the broad headings that are often seen in family law disputes.

Custody

The parents agreed (prior to trial) that the mother would have sole custody of the child, but the father asked to be provided with “written notice regarding major decisions relating to the child”. Although Justice Parayeski noted that the parents had difficulty communicating even about issues relating to the child, he found that “[the father’s request] phrased in that way, is most unusual”. He therefore declined to make the order sought by the father, and no further explanation was provided by the judge on this issue.

Section 16(5) of the Divorce Act provides that, unless the court orders otherwise, “a parent who is granted access to a child has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.” Section 20(5) of Ontario’s Children’s Law Reform Act contains a similar provision (as does the legislation of most provinces that frame parental rights in terms of “custody” and “access”).

In light of the legislative background, there would likely be no issue if the father had asked to be “notified” about decisions relating to the child, instead of asking that the mother provide him with “notice” about these decisions. It is possible that Justice Parayeski was concerned that the order sought by the father could be misinterpreted as requiring the mother to inform the father in advance of making any decisions about the child’s welfare. While custodial parents are certainly encouraged to keep access parents informed about upcoming major decisions, a custodial parent would not breach the access parent’s rights to information by informing the access parent of a decision after it has already been made and executed.

An order requiring the mother to provide “notice” to the father might also result in ambiguity about the father’s role in making decisions regarding incidents of custody. It is important to remember that a parent who is awarded sole custody has the right to make all major decisions affecting the child, without having to discuss these decisions with the access parent in advance.

In certain circumstances, courts do order that the custodial parent must consult with the access parent prior to making major decisions, but if the parties are unable to agree, the custodial parent is still empowered to make the final decision (see for example: Lamont-Daneault v. Daneault, 2003 MBCA 111, at para 74, LaPalme v. Hedden, 2012 ONSC 6758 at para 97, and McArton v. Young, 2010 ONSC 3962, at para 24).

In McArton, the mother was awarded interim sole custody, but was ordered to advise the father in writing prior to making major decisions, in order to receive the father’s “input” on these decisions. In DeAngelis, Justice Parayeski apparently did not consider it necessary to order the mother to consult with the father prior to making decisions.

Access

The parties had agreed to a general access framework, but were unable to finalize the particulars of the father’s parenting time. The outstanding issues included:

  • Extending weekend access: The mother requested that the father return the child on Sunday nights after his weekend parenting time, and the father requested that the child remain in his care until drop off at school on Monday mornings. The judge agreed with the father, and noted that the additional overnight with the father would be beneficial for the child.

Courts will typically allow parents to extend weekend parenting time into Monday morning (even for relatively young children), unless there are legitimate concerns, ideally supported by reliable evidence, that such an arrangement is disruptive to the child. For example, if the parent often fails to deliver the child to school in a timely fashion, or the parent delivers the child without homework being done, without lunch, without adequate sleep, etc, extending parenting time may not be appropriate (see for example: Cunningham v. Cunningham, 2013 MBQB 50).

  • Mid-week access: The father requested that his mid-week parenting time be extended from an evening to an overnight. The mother disagreed with an overnight, and requested that the father’s mid-week parenting time end earlier, to allow her to prepare the child for bed. Justice Parayeski Justice noted that the status quo before trial was a mid-week visit with the father from 6:15 p.m. to 8:30 p.m. He found that the father’s request to increase the time was ‘too much, too soon’, especially in light of his order that weekend parenting time be extended, and that the mother’s request to decrease the time had more to do with her need for control than with the child’s best interests. Accordingly, Justice Parayeski ordered the mid-week visit to remain the same.

This decision provides a good illustration of the significance of status quo in parenting. Generally speaking, courts are reluctant to make drastic changes to children’s schedules in the absence of strong evidence that an established routine is not in the children’s best interests (for ex: where there are concerns about the children’s well being or safety or a party’s parenting ability).

Although it is certainly possible to make changes to any parenting schedule, even when the schedule is mostly “working”, courts prefer changes to be gradual, to allow children time to adjust. In light of the courts’ tendency to use the status quo as a starting point, it is particularly important for access parents to insist that an acceptable parenting schedule is established as soon as possible after separation (while keeping in mind that the children’s best interests are paramount in determining what schedule is appropriate).

  • Pick up and drop off and missed access visits: The mother claimed that the father was often late to pick the child up, and asked to be given the right to declare an access visit “abandoned” if the father was late by 30 minutes or more. Justice Parayeski agreed that the mother and child should not be kept waiting, but also noted that the father worked out of town and could not control factors such as traffic. Although Justice Parayeski noted that the father should call and explain any delays to the mother and the child, he declined to make an order on the issue.

The mother also requested that the father provide 48 hours’ notice of any missed access visits. The father asked notice to be only 8 hours. Justice Parayeski ordered that the father provide 24 hours’ notice. To provide further incentive to the father, Justice Parayeski ordered that missed visits would only be rescheduled when 24 hours’ notice is provided.

  • Holiday schedule: Justice Parayeski reviewed the parties’ proposals for holiday access during Easter, statutory holidays, March Break, and the summer vacation. In each instance, he found the father’s proposals to be more reasonable, and ordered holiday access as requested by the father.

Access is the right of the child, and not the right of the parent. Unless there are specific concerns about prolonged/consecutive parenting time, or practical difficulties such as serious scheduling issues, courts are often prepared to order generous holiday parenting time to access parents. Absent specific and cogent reasons to limit time, there is an increasing tendency by the courts to order generous parenting time for access parents, even in cases involving very young children (see also: the “maximum contact principle” in section 16(10) of the Divorce Act) 

  • Overnight visits: The mother requested the father’s overnight visits to take place at the father’s parents’ or sister’s home. The father advised that he secured a furnished apartment and asked for overnight access to take place there. He suggested that the mother should visit his apartment to satisfy herself that it was suitable for the child, and the parties would return to court if they couldn’t agree after her visit. The judge found the father’s suggestion to be more reasonable than the mother’s, and ordered accordingly.

Life Insurance

The mother requested that the father maintain a life insurance police of $300,000 to secure his child support obligations. The father requested that the mother be obliged to maintain a similar policy on her life. Justice Parayeski ordered both parents to maintain similar life insurance policies. He noted that:

[11]      While the father’s request is out of the ordinary inasmuch as it is usually the support payor who is obliged to carry life insurance, the rationale behind that request is compelling.  In the event that the mother should die before the child no longer requires support, it is probable that he would live with the father full-time.  Without the mother being insured, the full support obligation would rest on the father, just as that burden would rest upon the mother should the father die before his child support obligation ends.  I see no manifest why reason life insurance should not be carried by both parents for so long as the child remains dependent.  The amount suggested by the mother is reasonable.

Property Division and sale of the Matrimonial Home

In this case, the mother and child continued to live in the parties’ jointly owned matrimonial home. The mother sought an order allowing her to buy out the father’s equity in the home. The father argued that the home should be listed for sale, and that the mother could make an offer on the home, to be considered against other offers made in the open market.

Justice Parayeski acknowledged that a spouse cannot be forced to sell his/her equity in a matrimonial home to the other spouse without his/her consent. However, he found that the father previously consented to an order that allowed the mother to buy his interest in the home, and the father did not take any steps to set that order aside. As a result, Justice Parayeski ordered that the wife could buy the husband’s equity in the home at fair market value.

The parties were not able to agree on the fair market value of the home. Each party provided an expert appraisal report, but there was an $83,000 discrepancy between the values provided by the two experts. Justice Parayeski preferred the mother’s expert because. The mother’s expert considered properties that were more similar to the matrimonial home in terms of amenities;

  • The father’s expert did adjust the value of comparable properties to account for differences between those properties and the matrimonial home, but his adjustments were general, rather than specific;
  • In making adjustments for the value of comparable properties, the father’s expert did not take into consideration case-specific factors that may affect the adjustment, such as the neighborhood where the matrimonial home and comparable properties were located.

Justice Parayeski’s comments illustrate the types of factors that courts will consider when assessing expert reports. Litigants who are dealing with valuation issues should keep these factors in mind when assessing the strength of their own expert reports, and any expert reports provided by the other party.

The parties in this case ran into further difficulty because their expert reports were outdated, and neither party provided evidence about the current value of the home. Justice Parayeski calculated the present value of the home based on an appreciation formula that was presented by the mother’s expert during his testimony at trial.

This outcome should serve as a reminder to litigants that it is crucial to provide the judge with sufficient evidence to enable him/her to make decisions. Prior to attending any court appearance, litigants should ensure that the court has access complete and up-to-date evidence about every outstanding issue. If such evidence is not available, the court may have to make a decision based on incomplete information, to the detriment of either or both parties.

Other Issues

As a final issue, the parties were not able to agree on the division of household contents. The majority of household contents remained in the matrimonial home when the father moved out.  The mother suggested that she should keep all the contents in the home, and that the father should be credited with $4,000 for his 50% share of the value. The father argued that the household contents were more valuable than $8,000, and noted that it cost him significantly more than $4,000 to furnish his new home.

The father made a proposal for division of contents, and Justice Parayeski found it to be reasonable: the mother was ordered to create an inventory of the disputed household contents and divide it into two lists with equal total values. The father would then select one of the lists, and each party would keep the items from his or her list.

Conclusion

Justice Parayeski’s decision in DeAngelis exemplifies a very important point that all family litigants would do well to remember: in family law disputes, reasonableness wins the day. This is especially true in cases involving children.

Judges are often required to make decisions that will have a significant impact on children’s day-to-day lives, and their futures.  In the vast majority of cases, judges are asked to make these decisions without knowing the children in question, and without the benefit of neutral third-party evidence.

In the face of conflicting evidence from the parties, judges try to create solutions that are reasonable. Litigants who can demonstrate to a judge that they are willing to put the need of children first, to work with the other parent, and to compromise (unless there are valid and demonstrable reasons to insist on a position), will often receive the orders they are seeking, or orders that are quite close. This is what happened for the father in this case; whenever he presented reasonable proposals, Justice Parayeski ordered in his favour.

B.C. Attorney General Explains the New Family Law Act

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Shirley Bond, Minister of Justice and Attorney General of British Columbia, released the following statement clarifying the new family law legislation enacted this month:

Headlines have mistakenly suggested that common-law couples are now “married” under B.C.’s new Family Law Act. This is not true.

I want to make it very clear: the new family law is not about forcing unmarried couples into getting married. When it comes to the law’s property division rules, it’s about providing fair rules for couples who split up – and ensuring that those rules are crystal clear at the onset of a relationship.

The new family law’s model is fair: you keep what’s yours, but you share what you accrued together as a couple. This means that property brought into a relationship, and certain property you might receive during your relationship, such as inheritances or gifts, are generally not divided upon separation, regardless of whether you are married or not.

Only property and debt that a couple accrues together during their relationship is dividable. This is similar to many other Canadian jurisdictions.

Under the outdated Family Relations Act, property division provisions only applied to married couples.

A common-law couple could live together 20-plus years, and when they broke up, the property would stay with whoever’s name it was in. It would not be considered joint property and divided in half, as would be the case for married couples.

This resulted in complex legal cases and often great unfairness, usually to women, as the property was more often in the man’s name.

Today common-law couples have the freedom to opt-out of the property division rules by written agreement.

The agreement will allow them to divide their property as they see fit, with limited ability for the court to overturn the agreement.

It is important to note that under existing law, common-law couples are already subject to many of the same laws as married couples, such as those around income tax and wills and estates.

Also, under the old Family Relations Act, common-law couples could seek spousal support.

The new Family Law Act replaces outdated legislation passed in the 1970s and addresses the needs of modern B.C. families and shifts in societal norms.

Contributions to Costly Section 7 Expenses (Owens v. Owens)

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In Owens v. Owens, Justice Ramsay of the Ontario Superior Court of Justice considered a motion by a mother to vary a final child support order on the basis of material changes to the children’s child care, orthodontic, dental, and tutoring expenses. This case provides a good illustration of the type of analysis judges undertake when considering the reasonableness and necessity of costly child care expenses, particularly where the parties’ incomes are relatively modest.

The parties’ final support order was issued in 2010. The father was ordered to pay Table child support and a fixed monthly contribution toward the children’s section 7 expenses that existed at the time.

The Table support portion of the final order was varied in 2011 to account for the father’s increased income in that year. In 2012, both parties’ incomes decreased, and the mother incurred additional section 7 expenses, including tutoring expenses, orthodontics, and a nanny expense (this expense doubled from the time of the original order). Although Justice Ramsay did not specifically state this, it is clear that these circumstances were sufficiently “material” in nature to warrant a variation of the final order.

Based on the father’s income of $34,500 and the mother’s income of $42,000, Justice Ramsay found that the father should, “in principle”, contribute 40% toward the children’s section 7 expenses. Interestingly, a strict proportionate sharing based on the parties’ incomes would require the father to contribute 45% toward the children’s expenses; however, Justice Ramsay does not provide a rationale for his decision to deviate from the “straight” apportionment.

Justice Ramsay accepted the orthodontic expenses ($5,300) and tutoring expenses ($150/month) as reasonable and necessary, and ordered the father to contribute his proportionate share both retroactively, and on a go-forward basis. Justice Ramsay did not order the father to contribute to previous dental expenses claimed by the mother, because there was insufficient evidence before him about the exact amounts paid by the mother and the exact amounts covered by insurance. This should serve as a reminder to all litigants about the importance of providing the court with enough information to make a determination about an outstanding issue. In the context of section 7 expenses, the court will always need to see evidence of the amounts paid to date, the amounts owing on a go-forward basis, and evidence of any subsidy or insurance coverage that may reduce or eliminate the expense.

Justice Ramsay then went on to consider the nanny expenses claimed by the mother, which were very high ($20,000/year after a subsidy), and accounted for 50% of the mother’s gross yearly earnings.  He noted that the two older children (ages 14 and 12) had significant psychiatric issues (anxiety, depression, and anger management, etc) and made the following observations about the cost of the nanny [emphasis added]:

[8]       The daughter is home schooled by a tutor provided by the school board. A nanny watches the children while the mother works. As a result of the children’s special needs and the mother’s work schedule, this is the most practical option. After school day care would be impractical. Neither of the older children is an apt caregiver for the youngest child, who is only five years old. It is expensive, but if not for the nanny, the mother would probably not be able to work. The net benefit of the arrangement is an additional $20,000 a year for this family. The father’s suggestion that the two older children should watch the youngest child is, to my mind, callous and unrealistic in the circumstances.

…

[10]     I do not blame the mother for providing this care for her daughter. Hiring the nanny and the tutor were reasonable decisions. I accept that the child has benefitted from the tutor. Hiring the nanny has allowed the mother to bring in more money. I simply think that the father cannot afford it. As a result, I think s.7 requires me to award much less. The unfortunate fact is that the family’s resources are limited and hard choices have to be made. It is a fact of life in this case that the hard choices, like the hard work, fall to the mother.

As a result of his findings above, Justice Ramsay ordered the father to pay $350/month toward the children’s tutoring and nanny expenses. It is noteworthy that the father was originally ordered to pay $350/month toward these expenses, but at the time the original order was made, the cost of the nanny was only half the current cost.

Owens v. Owens illustrates the challenges that courts often face when the parties’ financial realities are at odds with the needs of the children. As the primary caregiver in this case, the mother was left to pay a significantly higher portion of the children’s child care expenses, out of necessity. This result that may be unfair, but it is, unfortunately, not at all uncommon.

Families going through separation or divorce will often experience a decrease in their standard of living as a result of the increased cost of running two separate households. It is not unusual for courts to find that an expense is necessary and clearly benefits the child(ren), while at the same time finding that the cost of the expense is financially unfeasible for the family. Under the Child Support Guidelines, only expenses that are both necessary and reasonable will be considered proper section 7 expenses.

Terminating Support for Adult Children

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The decision in Diment v. Diment by Justice Midwinter of the Manitoba Court of Queen’s Bench deals with a motion by a father to terminate child support for an adult child, and a cross motion by a mother to vary the proportionate sharing of the child’s post secondary education and dental expenses.

The child attended a full-time nursing program until April, 2012. During the summer of 2012 (Between April and August), the child was employed, and earned approximately $6,400. She continued to reside with the mother during that time.  The child resumed full time attendance at school in September, 2012.

The father moved for an order terminating his child support obligations for May – September, 2012, when the child was not attending school and was employed. He took the position that the child should use her earnings from the summer job to contribute to her expenses. The father agreed that the child resumed being a child of the marriage in September, 2012, but claimed that only Table support was payable commencing in September, 2012. Finally, the father sought an order terminating child support for the child commencing December, 2013, pursuant to a prior agreement between the parties. The mother took the position that the father should pay child support for summer, 2012, and that he should pay his proportionate share of the child’s section 7 expenses while the child was attending school in 2013.

The judge found that it was reasonable to expect the child to contribute some of her earnings toward her expenses, however, he noted the Manitoba Court of Appeal’s comments in Rebenchuk v. Rebernchuk, that

…. to reduce or eliminate parental support because the child took several breaks to work and save money, or opted for part-time studies, would penalize her efforts to achieve her goals with limited means.

In determining the appropriate level of child support for the adult child attending a program of education, the judge cited the framework set out by the Court of Appeal in Rebenchuk:

[20]  Based on Rebenchuk, there are three steps to consider.

1.  Does the person for whom support is sought a child of the marriage?
2.  Is the table amount in the guidelines inappropriate? If not, then the guidelines should be awarded.
3.  If the answer to step two is yes, what level of support is appropriate?

The judge found that steps 1 and 2 of the Rebenchuk inquiry were met. He noted that the child remained a child of the marriage, and that:

 Once the daughter returns to full-time attendance at her program, and for the full term of 2012, there will be a requirement for support over and above the table amounts by virtue of tuition. Accordingly, I am of the view that the second step in the case of Rebenchuk has been met.

Moving on to step 3 of the inquiry, the judge made the following findings in determining the appropriate level of support:

  • If the parents’ marriage remained intact they would have decided to support their daughter in her ultimate aim of receiving a practical nursing certificate;
  • The degree to which the child is able to earn an income to contribute to her own education is not entirely clear, and there was no evidence that the child still had access to her previous employment;
  • The child’s living expenses were reasonable since she was living at home with her mother and was being supported;
  • The child’s career plans appeared reasonable;
  • The child would likely benefit from her program of study, in that completion of same would hopefully result in a career and full-time employment
  • It was unclear whether part-time employment was available to the child while she studied full-time; and
  • It was unclear whether the child was eligible for student loans or other financial assistance.

On the basis of the findings above, the judge ordered the father to pay Table child support for the period between April and August, 2012. The father’s motion to terminate Table child support as of December 31, 2012 was granted, on consent, however, the father was ordered to contribute his proportionate share toward the child’s 2013 tuition expenses and any dental expenses as they arise.

The judge in Diment made a finding that the child continued to be a child of the marriage, notwithstanding that not attending a full-time program of education. His decision is consistent with section 1(1) of the Divorce Act, which defines a “child of the marriage” as a child who is “… (b)  the age of majority or over … but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”

It is noteworthy that child support for adult children of unmarried spouses is subject to the definition of “child of the marriage” in the various provincial family law statutes, and the definitions are not always consistent with the Divorce Act.  For example, section 31 of Ontario’s Family Law Act provides that a parent is obligated to child support for a child over the age of majority only if that child “is enrolled in a full time course of education.”

Although provincial legislation in Ontario clearly treats children of unmarried spouses differently than children of married spouses, no steps have been taken to amend the legislation to date. Litigants with adult children should therefore be mindful of the legislation pursuant to which child support is being requested and/or ordered in their case.

Interim Order Adjusted when Father Moved from Russia to America

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Justice Midwinter of the Manitoba Court of Queen’s Bench (Family Division) examined in Cunningham v. Cunningham the care and control of children whose father was initially employed in Russia, but then was hired to work in the United States.

The parties in this case were married for just over a year and separated in 2006. They had two children, ages 7 and 9. Following the separation, the father was employed in Russia and returned to Manitoba for one-month periods between prolonged stays abroad.

As a result of the father’s employment schedule, an interim order was made in 2010, which provided that the father would have care and control of the children for 10 days each month when he was in Manitoba. The father subsequently became employed in the United States, but returned to live in Manitoba. The father insisted on the schedule to continue as set out in the interim award, while the mother sought a change.

The judge awarded the mother primary care and control of the children, and reduced the father’s access to alternate weekends (from Friday evening to Sunday evening), based on the following findings:

  • The interim order clearly stipulated that the father’s access schedule of 10 days per month was ordered in contemplation of his employment in Russia
  • The children reside primarily with their mother, and are in full time attendance at school in the mother’s community
  • The children missed many of their extra-curricular activities when with the father
  • There were issues with schoolwork when the children were in the father’s care
  • The children need more stability than is provided with the current schedule

The judge also ordered the father to have two one-week periods of access during the summer months, and ordered the father to take the children to all scheduled extra-curricular activities while they are in his care.

Additional clauses dealing with the children’s travel were also included in the order, and a peace enforcement clause was issued on consent.

Finally, the father was ordered to pay Table child support and his proportionate share of section 7 expenses, and the mother was ordered to consult with the father prior to incurring any future section 7 expenses for which she may seek contribution.

Procedural Fairness in Child Protection Trials

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Alberta (Child, Youth and Family Enhancement Act, Director) v. M.K. deals with a motion by the Director of Alberta’s Child and Youth Services agency (“Director”) to proceed with a permanent guardianship trial under Alberta’s Child, Youth and Family Enhancement Act,  in the absence of the responding party.

The Director brought an application for a Permanent Guardianship Order (“PGO”) of  a child, A.W. (the “child”). The child’s mother died in 2005 and her father was sentenced to a long period of incarceration. As a result, the maternal grandmother (the respondent) became the child’s Guardian.  In 2010, the child was apprehended from the grandmother by Director, who was granted initial custody.

The Director’s Temporary Guardianship application and subsequent  PGO application involved some 40 court appearances, 6 counsel changes by the grandmother, and three trial adjournments,  all requested by the grandmother.   As a result, the child was left in an “initial custody status” for over two and one half years.  The permanent guardianship trial was finally set for August, 2012.  In July, 2012, the grandmother requested a fourth adjournment, which was denied. On the date of the trial, the grandmother decided not to attend at court, and instructed her lawyer to proceed in her absence. The grandmother’s lawyer requested and was allowed to get off the record. As a result of the grandmother’s non appearance, the Director applied to proceed in her absence.

In considering the Director’s application, the Judge W.S. Andrew cited the decision of the Alberta Court of Appeal in B.N. v. Alberta (Director of Child Welfare),

 [10]           The Court recognized that the duty to enter into an inquiry prior to proceeding to trial arises from the principle of a parent’s right to procedural fairness and to be heard in child welfare proceedings.  This principle was articulated by the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46.

 [11]           The Alberta Court of Appeal held that, while procedural fairness is fundamental in child protection proceedings, it is not absolute.  The Court was satisfied that an inquiry guided by a number of factors “provides sufficient protection to an absent parent in light of the overriding onus to proceed in the best interests of the child.” (Para 36).  The factors to be considered, as outlined by the Court at paragraphs 31 and 32 are as follow:

 a) the nature and date of the notice given, and the adequacy of it in the unique circumstances of the case;

b) the circumstances of the parent’s residence and ability to receive messages or correspondence;

 c) the parent’s pattern of past attendances at scheduled trials or hearings;

 d) the number of adjournments and length of delay leading up to the hearing;

 e) the extent of the parent’s involvement with the children prior to the hearing;

 f) whether there is some other reasonable explanation for the parent’s absence; and

 g) whether further attempts to secure the parent’s attendance may be productive.

Judge W.S. Andrew examined each of the factors articulated in the B.N. decision, and found that most factors worked against the grandmother. Judge W.S. Andrew found that the grandmother was fully engaged in the court process prior to the trial date:

  • she had regular supervised access to the child after the child was apprehended by the Director;
  • she attended the vast majority of the 40 or so previous court appearances and was familiar with the court’s process;
  • she attended at court on the day her request for a further adjournment was dismissed, and;
  • she was aware of the date on which the trial was scheduled to commence.

Judge W.S. Andrew found that no cogent reason was provided for the grandmothers’ non appearance, and that, absent a bench warrant to compel her attendance, further efforts to contact her could be equally productive or unproductive.

Judge W.S. Andrew noted that:

 [19] …All the factors [as set out in the B.N. decision] must be considered and the overriding test is what is in the best interests of the child.  In these circumstances, the best interest of the child is to have a decision made and some finality brought to her situation which has been left in suspension for at least two and a half years. It is clear that [the grandmother] is aware of these proceedings and has chosen not to attend. Further attempts to secure her attendance would not be productive, nor in the child’s best interests.  After reviewing all the factors, this Court finds that it is in the Child’s best interest to proceed.

 Accordingly, the Director’s application to proceed with trial was granted.

 

 

Mouat Comments on the New B.C. Family Law Act

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Mary E. Mouat of the Quadra Legal Centre in Victoria, British Columbia, has some commentary in The Times Colonist on the new Family Law Act in British Columbia:

Until Monday, common-law spouses had no property rights under B.C. family law. Now, like married people, they have a choice.

Mouat explains how the new legislation creates a different regime of excluded property to reflect changing family structures, and focuses on value flowing from pre-acquired property, gifts and inheritances and instead of the assets themselves.

She also describes how the focus of family law litigation will increasingly be mediation and out of court settlements:

 

…one of the underlying fundamental purposes of the new Family Law Act is to give families options beyond the courtroom.

The changes in family law in the 1970s saw family cases exploding into the courtroom. As more and more cases were litigated, the limits of that process for families became glaringly obvious. The adversarial system for determining truth between strangers was never designed to deal with the intricacies of a shared-parenting plan.

The unique demands of family law led to the development and expansion of mediation and more recently, collaborative law, which are designed to provide the participants control and support.

Litigation should now be seen as the alternative process, as it is not necessarily the first or best option for families.

 

One of the other important changes of the Act is that does not assume a separation agreement is in the best interests of the children, and will consider the physical, psychological and emotional safety, security and well-being of the children.

Spousal Support: General Principles, Variation, and Termination of Support (Stanley v. Stanley)

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Stanley v. Stanley from the British Columbia Supreme Court provides a helpful summary of the leading authorities on spousal support, especially in the context of a long-term but non-traditional marriage.

The parties were married for 21 years. They had no children, and both worked during the marriage. The wife was unemployed at the time of separation, but was the higher income earner during the marriage. The parties entered into a separation agreement that required the husband to pay the wife $1,500/month in spousal support.  The separation agreement also required the wife to take reasonable steps to become economically self-sufficient. Five years after the separation, the husband applied to terminate spousal support, or, in the alternative, to reduce monthly payments. At the time of application, the husband was 66 years old, and the wife was 59 years old.

The husband took the position that the wife made virtually no efforts to become self sufficient. He claimed that the wife was able to work, but chose to relocate to a rural area with limited employment opportunities to focus on her hobbies, including a horse farm. The wife claimed that she her ability to work was limited due to her age, lack of qualifications, and depression. She claimed that she had attempted to make her horse farm profitable, but that the income from the farm was insufficient to cover her monthly expenses. Finally, she claimed that the parties agreed that the wife would continue to receive spousal support in lieu of sharing one of the husband’s pensions.

Justice N. Brown reviewed section 15 of the Divorce Act and the leading jurisprudential authorities on spousal support entitlement, including the Supreme Court of Canada decisions in Bracklow v. Bracklow, Moge v. Moge, and Leskun v. Leskun.

The Court examined the three bases of spousal support entitlement, and the differences between compensatory spousal support and non-compensatory or “needs based” spousal support. Compensatory spousal support compensates a spouse for economic disadvantage suffered as a result of the marriage and/or its breakdown. non-compensatory or “needs based” spousal support involves a “needs and means” analysis, and “embraces the idea that, upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner, rather than the state”, even in the absence of a compensatory or contractual foundation for the obligation to pay.

Justice Brown then considered the obligation of spousal support recipients to achieve economic self-sufficiency, and cited the following principles:

  1. “Self-sufficiency, with its connotation of economic independence, is a relative concept.  It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living.  It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation.”
    (see Fisher v. Fisher, 2008 ONCA 11 at para. 53)
  2. It is critical to recognize and encourage the self-sufficiency and independence of each spouse, however, it is also important to recognize that sometimes the goals of actual independence are impeded by patterns of marital dependence, and that too often self-sufficiency is an impossible aspiration at the time of separation
    (see Bracklow)
  3. A spouse has a positive obligation to make reasonable efforts to become self-sufficient, but does not have an absolute obligation to become self-sufficient. The goal of self-sufficiency is to be accorded equal weight and consideration among the objectives set forth in the Divorce Act (see Munro vs. Munro, 2006 BCSC 1758)
  4. A spouse’s failure to achieve economic self-sufficiency does not constitute a breach of a duty. It is one of the factors to be considered in determining entitlement and the appropriate level of spousal support (see Leskun)
  5. The duty to become self-sufficient is never extinguished (see Munro)

In applying the legal principles to the case at bar, Justice Brown noted that, while the parties had a long-term marriage, it was not a traditional one. He found that neither party was economically disadvantaged by the marriage or its breakdown, and that there was no compensatory basis for an award of spousal support in this case. Justice Brown concluded that spousal support in this case was “intended to be an interim measure; directed towards giving the [wife] time to settle in after her move and to her finding employment again… to which end the respondent agreed she would make all reasonable efforts.”

Justice Brown agreed with the husband’s position that the wife did not make sufficient efforts to become economically self-sufficient. However, in considering the length of the parties’ marriage, the wife’s age, and her health concerns (including a serious leg injury), the judge found that the wife continued to be in need of spousal support. The judge ordered the husband to continue to pay support for an additional 2 years, with a specified gradual drop down of the monthly amounts, at which point spousal support would be terminated.