Conditional Custody Orders, Mobility, and Children’s Wishes

In Decaen v. Decaen, the Ontario Court of Appeal upheld a trial judgement granting sole custody of 8-year-old twins to a mother on the condition that she relocate from Mississauga, Ontario (where she was living) to Sudbury, Ontario (where the children were living).

The parties resided in Sudbury during the marriage and the mother was the primary caregiver of the children.  After separation the mother moved to Mississauga with the parties’ 18 year-old daughter, but the father did not allow the twins move.

The mother applied for sole custody and an order allowing her to relocate the twins to Mississauga. The father applied for joint and shared custody and an order requiring the twins to remain in Sudbury.

The judge trial concluded that it would be in the children’s best interests to remain in Sudbury.  He granted sole custody to the mother on the condition that she returns to Sudbury, and if the mother decided to remain in Mississauga the father would have sole custody. Both parents appealed.

Neither party objected to the relocation condition in the custody order; both parents argued that the order should be set aside entirely, and each parent sought the relief he/she originally asked for at trial. In a jointly-written decision by a 3-judge panel, the Court of Appeal dismissed both parents’ appeals and upheld the trial decision.

By deciding to uphold the trial judgement in Decaen,  the Court of Appeal accepted (at least tacitly) that judges in Ontario can make custody orders that are conditional on a parent’s willingness to relocate, and this decision of the Court of Appeal is very noteworthy.

While section 16(10) of the Divorce Act empowers judges to “impose any terms, conditions, and restrictions” on custody orders that they see “fit and just”, case law indicates that judges rarely use this discretion when making custody orders. In mobility cases, judges do  restrict a parent’s ability to move to another jurisdiction (by prohibiting that parent from relocating with a child to another jurisdiction.  It is very uncommon to see orders that place a positive obligation on a parent to move to or from a jurisdiction as a prerequisite to being awarded custody of a child.

The Nova Scotia Court of Appeal has found that requiring a parent to relocate as a condition of custody is permitted but unusual, and such orders should only be made in rare circumstances when it is the children’s best interests (see Reeves v. Reeves and MacRae v. Hubley). In contrast, the British Columbia Court of Appeal found  that courts “do not have the power to dictate where a parent must live, even if the result would be in furtherance of the best interests of the children.” (see Stav v. Stav).

The trial judge’s order in Decaen did not explicitly compel the mother to relocate to Sudbury, however in light of the mother’s interest in sole custody of the children, it could be argued that the actual effect of the order was compulsory from her perspective. It will be interesting to see how this decision will be used and interpreted in  future mobility (and custody) cases in Ontario.

In addition to raising an interesting point of law about conditions of custody, the Court of Appeal’s decision contains a helpful analysis of mobility issues and helpful comments about the weight that should be  accorded to children’s wishes in custody disputes. The mother in Decaen argued that the trial judge did not conduct a proper analysis of the children’s best interests with respect to mobility, and that he did not give sufficient weight to evidence that the children wished to relocate to Mississauga.

In finding that the trial judge properly conducted his analysis, the Court of Appeal cited the leading case on parental mobility, Gordon v. Goertz, [1996] 2 SCR 27:

[23]       In Gordon v. Goertz, Justice McLachlin (as she then was), writing for the majority, identified a number of factors relevant to a child’s best interests in the context of possible relocation:

(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
(f) disruption to the child of a change in custody; and
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[24]       At para. 50 of Gordon v. Goertz, McLachlin J. stated that, “[i]n the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community.

In dismissing the mother’s argument with respect to the children’s wishes, the Court of Appeal listed the factors that are relevant to such a determination:

[42]        In assessing the significance of a child’s wishes, the following are relevant:

(i) whether both parents are able to provide adequate care;
(ii) how clear and unambivalent the wishes are;
(iii) how informed the expression is;
(iv) the age of the child;
(v) the maturity level;
(vi) the strength of the wish;
(vii) the length of time the preference has been expressed for;
(viii) practicalities;
(ix) the influence of the parent(s) on the expressed wish or preference;
(x) the overall context; and
(xi) the circumstances of the preferences from the child’s point of view: See Bala, Nicholas; Talwar, Victoria; Harris, Joanna, “The Voice of Children in Canadian Family Law Cases”, (2005), 24 C.F.L.Q. 221.

It is apparent that the trial judge considered all of these relevant factors.

Annual Income-based Readjustments of Final Spousal Support Order

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. Bragagnol2008 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)

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.

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

In Owens v. OwensJustice 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.

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

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.

Appeals, Custody and Access, Mobility in Deguchi v. Deguchi

The Alberta Court Appeal recently upheld the decision of a chambers judge, who granted a father primary care and control of his two young sons (ages 3 and 5), and allowed him to relocate the children from Alberta to British Columbia, notwithstanding that the mother was found to be the primary caregiver of the children during the marriage and until the date the order was made.

The Court of Appeal’s reasons in Deguchi are contained in just 6 short paragraphs. The Court relies heavily on the reasons of the chambers judge, which, unfortunately, have not been reported. As a result, only the most basic facts of this case are available, and they are as follows:

The parties were married in 2008, and had two sons (ages 3 and 5 at the time of appeal). The mother was a stay-at-home parent, and was the primary caregiver of the children throughout the marriage. The father was in the banking business. During the marriage, the parties agreed to accept numerous transfers to advance the father’s career, and one such transfer required relocation to Salve Lake, Alberta. It is unclear how long the family lived in Slave Lake, but the parties resided there at the time of separation. After separation, the father was transferred to Aldergrove, British Columbia. The mother refused to relocate to Aldergrove, and stayed with the children in Slave Lake. The mother’s position prompted the father to apply for an order granting him primary care and control of the children (with generous access to the mother), and for an order allowing him to take the children to British Columbia. The father was successful and both the parenting and mobility orders were granted.

The mother appealed, claiming that the chambers judge “misapplied the law and failed to consider some of the evidence”. The Court of Appeal dismissed the mother’s appeal, finding that there was no basis upon which to interfere with the order.

Although the Court of Appeal did not provide any detail about the chambers judge’s analysis, the Court of Appeal noted (and apparently accepted) the chambers judge’s findings that:

  1. The parties both understood that their stay in Slave Lake would not exceed three years; and
  2. Neither party had family in Slave Lake, but both parties had extended family in Aldegrove.

In this case, the Alberta Court of Appeal upheld what appears to be a fairly drastic change in the parenting status quo of two very young children, and such a change of parenting arrangements is somewhat unusual, especially in light of the finding that the mother was the children’s primary caregiver.

From a pragmatic standpoint, however, the Court was not left with many options, given the father’s work obligations and the mother’s refusal to relocate to British Columbia. The “best interests of the child” continues to be the overriding test in determining parenting issues, including residence and mobility.

Unfortunately, the Court of Appeal does not describe the chambers judge’s analysis of the children’s best interests, and it is unclear how the chambers judge weighed the existing parenting status quo against other considerations.

The chambers judge’s findings regarding the temporary nature of the family’s move to Alberta, and her findings regarding the strength of the children’s ties to each province, likely had a significant impact on the decision at both court levels to allow the father to relocate the children to British Columbia.

Deguchi is yet another example of the often unpredictable nature of mobility cases. The leading case on mobility is the Supreme Court of Canada’s decision in Gordon v. Goertz, 19 R.F.L. (4th) 177 (S.C.C.). Although the legal framework in Gordon has led to inconsistent results in mobility cases across Canada, the Supreme Court of Canada has thus far declined to re-visit the issue. The federal government has also been reluctant to establish a Canada-wide legislative framework for mobility issues. It should be noted that, on March 18, 2013, British Columbia’s new Family Law Act came into force, replacing a number of family law statutes in that province.

The new Family Law Act includes specific provisions dealing with mobility and relocation (see sections 65-71 of the Act), making British Columbia the first province in Canada to establish a legislative framework for mobility. It will be interesting to see how the new legislative framework is applied, and whether other provinces will follow suit with similar amendments to their own provincial legislation.

Retroactive Child Support for Hitfar Founders (Fargey v. Fargey)

The Supreme Court of British Columbia recently released the decision in Fargey v. Fargey, dealing with retroactive child support based on the success of a Vancouver-based cellphone company.

The couple founded the company in 1989, the same year they were married. The mother’s involvement in the company diminished when the children were born, but she retained half of the shares of the company. After separating in 2005, a separation agreement in 2006 provided all of her shares to the father.

The father’s current income from the cellphone business as a sole shareholder increased from $580,000 in 2008 to about $1,900,000 in 2012, and the mother claimed she did not know of the increase until very recently. On Aug. 24, 2011 she emailed:

There is really no discussion on the child support issues Troy. You (We) are legally to be providing each other with our corporate and personal returns every year to determine what child support you are to be paying. You have neglected to do this until July 2011 at which time, a complete set of documents has not been provided. At this point, I am finding this very difficult and if you are not going to cooperate, I have no choice but to set a court date. Below are the guidelines for Child support. If you can prove to me that you are paying what you should be paying, then it will be easy to move forward. To date, however, you have not proven that nor have you provided me with the correct support payments over the past 3 years…according to the recent incomplete documents. So in saying that, I suggest you provide me with all the documents required, including your 2010 Hitfar Financials, which should be complete by now if not soon, and we move from there. I have been very patient with this and I have provided for the kids in every aspect of care and upbringing and gone beyond my means to do so. If I do not receive proof of income and or potential income by September 15th, then I will proceed to BC Courts. I have been to the BC Justice Court House to confirm by them as well, that you are breaking the law by not abiding by these details.

She then made an application on May 25, 2012 for retroactive support. The personal salary he provided in response on August 28, 2012 was as follows:

2008

$365,000

2009

$306,000

2010

$401,000

2011

$471,000

2012

not yet determined at the time of the hearing

Justice Affleck noted that the father had voluntarily increased child support by $12,000 since the spousal support payments ended, but should have updated the mother about his company’s financial situation. However, he found that the $600,000 she claimed in retroactive support was excessive:

[22] …The children enjoy a relevantly high standard of living. There has been no financial hardship for which they should be compensated from their father’s increased prosperity and a payment of $600,000 would, in my view, constitute a windfall in the hands of the claimant.

[30]   …When the parties were together they did not take all the net profit of Hitfar for themselves. Hitfar needs considerable capital. Hitfar operates in a volatile market with many uncertainties. It is not in the interests of the children that the business be put at risk through substantial withdrawals of cash or by extending its line of credit. There were satisfactory business reasons for the respondent to retain earnings in Hitfar and those earnings should not all be imputed to him for the purposes of paying child support. That is particularly the case when there has been no hardship suffered by the children.

Justice Affleck calculated the retroactive support from the time of effective notice and reduced the amount to $261,000.

 

Settlement Conference Costs Against Self-Represented Litigant (Meidell v. Meidell)

Justice G.A. Campbell of the Ontario Superior Court of Justice released a cost decision recently in Meidell v. Meidell where he awarded $5,000 plus HST against a self-represented litigant.

The husband had asked for a delay in the cost submissions so that he could seek legal advice, but Justice Campbell noted this was the third or fourth legal professional he was consulting. He also pointed out that the husband explicitly did not state he was retaining counsel to assist him for the remainder of the case.

Although the proceedings were for a settlement conference and not a motion, Justice Campbell referred to Rule 24(10) that costs should be decided “promptly after each step in the case.”

He refused to entertain further delay, which would necessitate response by the wife’s counsel, because the husband had rejected “very clear and strong opinions” about spousal support and documentary production which Justice Campbell had offered the husband at the settlement conference.

The factors considered in determining costs under Rule 24(11) include:

(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.

 

Highest Interim Spousal Support in Canada (McCain v. McCain)

mccain v. mccain

The stakes are high for any divorce, but they’re higher still for the wealthy in Canada. In an interim decision made on December 27, 2012, Justice Greer of the Ontario Superior Court of Justice considered a marriage contract by Michael McCain, Maple Leaf Foods CEO, with his wife Christine McCain.

They were married between 1981-2011 and had 5 children. Throughout the marriage, the wife raised the children and did not work. In 1996, the husband’s father, Wallace McCain, announced to his children that they would have to enter into a domestic contract with their spouses. If they did not, they faced being cut out of the estate.

Justice Greer concluded that the contract was unfair, improvident and unconscionable to the wife, and stated,

[88]           …An agreement, which may have appeared as fair to the Husband when it was signed, can through time become unconscionable.  In my view, this is what has happened, and this leaves the Wife with very little.  The circumstances regarding its execution, the improvident result for the Wife and the extent of the Husband’s now wealth, are sufficient to have the spousal support provisions of the Contract set aside.

Justice Greer dismissed the wife’s claim for interim child support and interim disbursements, but ordered the husband to pay an interim and retroactive spousal support of $175,000 per month. This amount is the highest interim spousal support award on record.

 

Means and Needs Analysis for Interim Support (Odgers v. Odgers)

Justice McKinnon of the Supreme Court of British Columbia recently heard an application in Odgers v. Odgers for an increase in retroactive and interim child maintenance, s. 7 expenses, and interim and retroactive spousal maintenance.

The parties had a 5-day trial scheduled on February 25, 2013.

The respondent is a self-employed financial planner who declared an income of $130,000 at the time of the hearing. He reported a net income of $189,000 in 2010 and a net income of $185,000 in 2011. He explained this discrepancy by saying he needed to retain earnings to ensure operational funds for his business, and since the claimant was seeking a division of his business he could not be criticized for ensuring its financial viability.

Although Justice B. MacKenzie determined on a  “without prejudice” basis that the respondent had a Guideline income of $138,000 on July 5, 2012, he made a consent order that he pay $1,129 per month in child support for their two children. The Table amount at this income is  $1,958, so Justice McKinnon assumed that factors such as parenting arrangements, the claimant’s income and the debt load paid by the respondent were considered.

Since that time, one of the children no longer wanted to spend alternating weeks with the father. He claimed this change was due to parental alienation, but she said it was because of his temper.

However, after examining their finances Justice McKinnon concluded there was simply no other money to address the claims being advanced by the claimant until their home was sold. He rejected the claimant’s needs as it did not account for funds she had received from the respondent at the time of separation. He held these matters were best left to trial.

Justice McKinnon did outline the type of analysis that courts can employ in these situations, nothing that historically courts have used a means and needs analysis for determining entitlement to interim support. The Spousal Support Advisory Guidelines (SSAG) were used in D.R.M. v. R.B.M., 2006 BCSC 1921, but Robles v. Kuhn, 2009 BCSC 1163, provided a list of relevant considerations instead.

The relevant passage at passage in Robles for interim support can be found at para. 12:

[12] On interim support applications, the application of these provisions must be qualified by certain established considerations:

1.         On applications for interim support the applicant’s needs and the respondent’s ability to pay assume greater significance: Gibb v. Gibb, [2005] B.C.J. No. 2730 (S.C.);

2.         An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it: Grossi v. Grossi, [1993] B.C.J. No. 878 (S.C.);

3.         On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best: Randhawa v. Randhawa, [1999] B.C.J. No. 1082 ; Newson v. Newson,1998 CanLII 6440 (BC CA), [1998] B.C.J. No. 2906, 65 B.C.L.R. (3d) 22 (C.A.);

4.         The courts should not unduly emphasize any one of the statutory considerations above others;

5.         On interim applications the need to achieve economic self-sufficiency is often of less significance;

6.         Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise: Ladd v. Ladd2006 BCSC 1280 (CanLII), [2006] B.C.J. No. 1930, 2006 BCSC 1280 (S.C.);

7.         Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out: L.G.B. v. M.A.C.M.,2005 BCSC 1786 (CanLII), [2005] B.C.J. No. 2966, 2005 BCSC 1786 (S.C.);

8.         Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support: L.G.B.