This 2011 judgement from the Ontario Superior Court of Justice stems from an application brought by the Applicant Father to vary a Divorce Order, which was granted in 2003, and a cross motion brought by the Respondent Mother, in which she alleged that the Applicant Father has been underpaying support since the above mentioned was granted.

The Applicant Father argued that the 2003 Divorce Order should be varied due to the fact that one child has been attending university away from home since 2009 and so he should only be paying full child support, as agreed to in the Order, during the summer months when the child is actually residing in the home with the Respondent Mother.

It should be noted that the Applicant Father was to contribute towards 71% of the total cost any special and extraordinary expenses of the two children, which include expenses relating to the children’s extracurricular activities, education, etc.

The Respondent Mother, in her cross motion, claimed that the Applicant Father had been underpaying support since the Divorce Order was granted in 2003.  The parties were able to agree on income amounts for the years 2004 to 2008 inclusive, which left his income for 2003, 2009 and 2010 in dispute.

The Respondent Mother claimed that in 2003 the child support agreed to was based on an income of $102,000.00; however, this amount failed to take into consideration a dividend that the Applicant Father received that year which increased his income to $158,420.00 for that year, as stated in his Income Tax Return.

In response to the Respondent Mother’s cross motion, the Applicant Father argued that she cannot pick and choose how to determine his income when it suits her.  He further argued that they had agreed to determine his income based on the actual billings of his company and so she could not then claim that his income needed to be determined based on what he declared to Revenue Canada.  In addition, the Applicant Father stated that when the Divorce Order was made, the Respondent Mother had counsel and was aware of the considerable retained earnings in the company, so she made an informed decision at the time about how his income would be determined.

Justice Sachs agreed with the Applicant Father’s argument and stated that typically income for child support purposes is based on income as declared for tax purposes, including dividends; however, the parties in this case chose not to use this method when calculating income.

Instead, they looked to the actual billings (before expenses) through the Applicant Father’s company, which more often than not resulted in a higher income being attributed to him.  As such, the judge determined that it would be unfair to use different methods of calculating income for different years for support purposes.

The parties were also able to agree that child support should only be paid for both children during the months that they are both residing at home with the Respondent Mother and when the eldest child returns to school, then support should only be paid for the one child who continues to reside at home.

In addition, the parties agreed that expenses should be shared proportionally between them in accordance with their incomes.  Therefore, Justice Sachs took into consideration the parties respective incomes from 2009 and 2010.

For 2009, the judge imputed income in the amount of $30,000.00 to the Respondent Mother.  Although she had no income that year as a result of her trying to start her own business, her earnings history suggested, according to Justice Sachs, that she could earn an income of approximately $30,000.00.

For 2010, the Respondent Mother’s income increased whereas the Applicant Father’s income decreased and so Justice Sachs made all necessary adjustments and determined that from 2004 to 2009 the Applicant Father underpaid child support whereas in 2010 and 2011 he had overpaid.

Then, Justice Sachs determined that the Respondent Mother failed to contribute towards expenses in proportion to her income for the years 2009, 2010 and 2011 thus resulting in her owing money to the Applicant Father which was credited towards the amount owing by him for child support.

Finally, Justice Sachs stated that with respect to the future, the parties are to continue to share post-secondary school expenses for both children in proportion to the parties’ incomes.  As well, the Applicant Father is to pay the Respondent Mother child support based on when the children are residing with her, as opposed to attending school and the parties are to provide each other with annual disclosure as to their incomes.

On Wednesday, January 18, 2012, the Supreme Court of Canada heard the now infamous Eric v. Lola case following an appeal from the decision of Quebec Court of Appeal on November 3, 2010 which was made by the Attorney General of Quebec, Jean-Marc Fournier.

In this case, the Quebec Court of Appeal was asked to decide whether article 585 of the Quebec Civil Code, which does not give common-law partners the right to support, the sharing of family property and the protection of the family residence, was discriminatory pursuant to s. 15 of the Canadian Charter of Rights and Freedoms.  It should be noted that these rights, as well as many others, are granted to married couples and couples in civil unions who reside in Quebec.

In their judgement, released November 3, 2010, the Quebec Court of Appeal ruled that article 585 of the Civil Code does in fact discriminate against common-law partners by denying them the same right to support as individuals who are married or in civil unions.

However, one exception to the decision was that the Quebec Court of Appeal did not invalidate the article of the Civil Code pertaining the sharing of family property.   Rather, they affirmed the Quebec Superior Court’s decision and claimed that the case of Walsh v. Bona was determinative and could not be set aside, and that with regards to the division of property, the freedom to choose whether to marry or not is paramount.

The Quebec Court of Appeal further stated that support payments exist to meet basic need and represent an aspect of social solidarity whereas the division of property is contractual in origin.

FACTS

The parties, namely Eric and Lola (please note that the parties’ real names were not used in order to protect their privacy and their children), met in 1992 when Lola was seventeen years old and attending high school and Eric was thirty-two years old.  Following their meeting, the parties had three children in 1996, 1999 and 2001.  Despite Lola’s numerous efforts to persuade Eric to marry her, he consistently refused stating that he did not believe in the institution.

Eric was the head of a lucrative business and therefore Lola never secured or maintained employment and instead relied financially on Eric throughout their relationship.

After seven years of cohabitation, the parties separated in 2002.  After separation, Eric supported Lola in the following ways:

• He was providing her with $34,260.00 in monthly support for the couple’s three children;
• He provided her and the children with a house;
• He provided her with a car;
• He provided her with money for the children’s tuition; and
• He provided her with money for various travels.

However, despite his provisions to both Lola and the children, she brought an action to the Quebec Superior Court seeking $56,000.00 per month in support as well as a $50 million lump sum payment.  The Quebec Superior Court dismissed her action and reinforced that common-law partners in Quebec have no right to claim support from the ex-partner.

The Quebec Superior Court also dismissed her claims that article 585 of the Civil Code was discriminatory, stating instead that the choice not to marry is a legitimate lifestyle choice and is accepted by Quebec society.  Thus, common law partners are not the subject of prejudices or stereotypes.  In addition, the court ruled that any changes to the law would have come from the government and could not be made by the judiciary.

Lola appealed this decision:  the following is the decision from the Quebec Court of Appeal.

When deciding whether article 585 of the Civil Code was discriminatory, the Quebec Court of Appeal relied heavily on s. 15 of the Canadian Charter of Rights and Freedoms as well as the Supreme Court of Canada case Law v. Canada, which sets out the test to be satisfied in order to establish equality rights claims under s. 15.

Firstly, s. 15 states the following:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Therefore, in order to establish discrimination, one must prove that a law, in purpose or effect, violates s. 15.  To be successful, one must establish that the law creates a distinction on an enumerated and analogous ground and in this case it was found as marital status is listed as a ground under s. 15(1).  Secondly, one must establish that the distinction creates a disadvantage by perpetuating prejudice or stereotyping.  In order to do so, one must satisfy the four prong test enunciated in Law v. Canada:

1. Pre-existing disadvantage, stereotyping, prejudice or vulnerability experienced by the individual or group at issue;
2. The correspondence, or lack thereof, between the ground or grounds on which the claim is based and the actual need, capacity or circumstances of the claimant or others;
3. The ameliorative purpose or effect of the impugned law upon a more disadvantaged person or group in society; and
4. The nature and scope of the interest affected by the impugned law.

Based on these four factors, the Quebec Court of Appeal held that article 585 was in fact discriminatory for the following reasons:

• The failure of the government to include common law partners in the Civil Code, and afford them the right to support in the case of separation, reflects the stereotype whereby these unions are not sufficiently stable or serious to warrant the legal protection of the right of these partners to have their basic needs met in the event of a breakdown of the relationship, even though these types of unions can bear the same characteristics of financial dependence as marriages or civil unions.  Common law partners are deemed less worthy of protection than married spouses and civil union spouses, even though common law unions present many similarities with those other types of unions.

• By requiring marriage or civil union as a precondition to the right to claim support, the legislature fails to consider social realities.  The purpose of an obligation of support between former spouses is to allow one of the spouses to meet his or her basic needs after separation (especially in situations of economic dependency created during the relationship) by obtaining support from the other who is able to provide it.  The nature of the couple’s relationship, whether it be a marriage, civil union or common law relationship, does not change whether one of the partners needs support after the relationship breaks down.  The Civil Code therefore fails to recognize that common law unions and the children resulting therefrom constitute a legitimate family unit in the same way as those stemming from a marriage or civil union.  Since 34.6% of couples in Quebec are in fact common law, the government is ignoring and excluding more than one-third of Quebec couples and their children from the laws that are in place to protect the family unit.

• There are a number of Quebec statutes that extend the rights and obligations, which were once reserved for married persons to common law couples thus demonstrating the similarity between these two types of relationships.  Therefore, the breakdown of a common law relationship can lead to economic consequences comparable to those experienced by married or civil union couples, particularly with respect to the need for support.  Therefore, the different treatment created by this law has an actual impact on common law partners, as they are unable to claim support from one another.

• There may be situations where only one of the spouses does not want to marry and therefore the spouse who does want to marry, such as Lola in this case, is disadvantaged by the effect of this law; and

• The quality of life of the children in common law relationships may deteriorate if they are in the custody of a former common law partner who was once financially dependent on the other and then loses the right to support.

The Quebec Court of Appeal then went on to consider whether the violation of s.15 was justified under s. 1 of the Charter and concluded it was not.

Based on the aforementioned, the Quebec Court of Appeal allowed the appeal in part, set aside the trial judgement, declared article 585 of the Civil Code of Quebec to be of no force or effect due to constitutional invalidity since it violates s. 15 of the Charter, and suspend the declaration of invalidity for twelve months, with costs against Eric and the Attorney General of Quebec in both the first instance and appeal, including $25,000.00 for expert fees.

Family Law cases rarely make their way to the Supreme Court, but the matter of L.M.P. v. L.S. did just that, and the decision was released on December 21, 2011.  The issue in this case was defining and dealing with a “material change in circumstances.”

The husband was applying to reduce and terminate his spousal support obligations as a result of an alleged change in his financial circumstances and the wife’s failure to make efforts to become self-sufficient since the support Order was granted.

The Supreme Court Judges were faced with the task of establishing the proper approach with respect to varying a spousal support Order by way of Section 17(4.1) of the Divorce Act.  Part of making a determination in this regard involves analyzing the approach taken when initial Applications for a spousal support Order are made via Section 15.2 of the Divorce Act.

Section 17(4.1) of the Divorce Act reads as follows:

Factors for spousal support order

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

And, Section 15.2 of the Divorce Act reads as follows:

Spousal support order

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Complicating this matter was the fact that the wife was diagnosed with multiple sclerosis shortly after the date of marriage and she has not worked at all since then.

As per their 2003 Separation Agreement, the husband was to pay the wife $3,688.00 per month in spousal support.  This Agreement was turned into a Court Order which did not specify a termination date for spousal support.

The husband’s initial attempt at getting a variation and reduction of spousal support was made in 2007.

The trial judge rejected the husband’s claim that his financial circumstances had changed, but the trial judge did decide that the wife was now able to work.  The result: an Order that set out a reduction of spousal support and identifying August 2010 as the termination date for spousal support.  The judge did not comment on whether there had been a material change in circumstances.

The decision seemed to be based on the facts presented, but those facts were not evaluated in light of the concept of “material change.”  The Court of Appeal for Quebec held that the wife’s failure to become self-sufficient did amount to a material change, hence the further appeal to the Supreme Court.

In the end, the wife’s argument prevailed and the Supreme Court decided that the original 2003 Order should be restored.

The minority position, however, was most captivating, in my opinion.  In his reasoning, Justice Cromwell advised as follows:

“When, as here, parties have reached a comprehensive, final separation agreement and its provisions are incorporated into a court order, those provisions must be given considerable weight in a subsequent variation application in relation to spousal support.”

In other words, Justice Cromwell is expressing an agreement reached on consent between two people with the requisite capacity should be respected as much as possible and that the threshold for what constitutes a material change is actually quite high.

The two-step test used to establish materiality, developed in the case of Miglin v. Miglin, is as follows: the change must be one that (1) relates to something that was not either expressly addressed by the parties in the agreement or that cannot be taken as having been in their contemplation; and (2) results in the support provision, considered in the context of the entire agreement, no longer being in substantial compliance with the objectives of the Act as a whole.  The objectives of the Act are finality, certainty, and autonomy.

Essentially, this decision represents a strict interpretation of the Miglin test and strict adherence to the objectives of the Act.  The wife’s self-sufficiency, or lack thereof, must have been in the contemplation of the parties at the time they entered into their Agreement.  Given the medical situation and historical role of this particular wife as a homemaker, achieving self-sufficiency was no guarantee.  It does not take an overly large logical leap to conclude that the parties foresaw the possibility that the wife’s circumstances would prevent her from working for a long-time, or perhaps even permanently.  Allowing the appeal is more in tune with the Act than  dismissing it, which would all but ignore the element of autonomy that the Act is supposed to acknowledge.

On December 23, 2011, the Ontario Court of Appeal released a judgment regarding an appeal by Mr. Stergios in which he challenged the trial judge’s factual and credibility findings relating to Ms. Kim.

More specifically, Mr. Stergios argued that the trial judge should’ve made adverse credibility findings against Ms. Kim arising from the following matters:

• Her late disclosure of her immigration file;
• Her pre-separation income;
• The particulars in her various financial statements; and
• Her evidence concerning the parties’ separation and her availability to further her education in Canada.

The Ontario Court of Appeal dismissed his appeal, stating the trial judge carefully considered the challenges and rejected same because Ms. Kim had adequately explained any deficiencies, whereas Mr. Stergios provided the court with inconsistent and seriously understated and untruthful evidence.  The Court of Appeal stated that the trial judge was in the position to assess the credibility of the parties and as such there was no basis to interfere with his credibility findings.  Moreover, the Court of Appeal offered the following additional reasons for their decision.

IMMIGRATION FILE

The trial judge had given Mr. Stergios ample time and opportunity to obtain evidence and refute Ms. Kim’s claims concerning her immigration position.  More specifically, the trial judge adjourned the trial in the spring of 2008 until October 2008 so that Mr. Stergios could retain an immigration expert.  However, when the trial resumed, Mr. Stergios had failed to do so and as a result, the only immigration expert called at trial was Ms. Kim’s immigration lawyer whose evidence went unchallenged for nine (9) days during the trial.  Her immigration lawyer offered evidence regarding Ms. Kim’s immigration application and her prospects of successfully achieving status in Canada.

EMPLOYMENT PROSPECTS IN SOUTH KOREA AND CANADA

During the trial, Ms. Kim gave evidence concerning her employment prospects in both South Korea and Canada from a cultural perspective.  Mr. Stergios drew issue with this on appeal because he said the specifics relating to same, as well as her ability to be self-sufficient, were not pleaded in her Answer despite being central to this litigation.

Although he drew issue on appeal, he did not object to this evidence at trial and the court of appeal stated that had he done so, then the trial judge would have turned his attention to any necessary amendment and potentially granted an adjournment to permit Mr. Stergios to address the matter.  As such, it was too late for him to raise this issue for the first time on appeal.

The bulk of Ms. Kim’s evidence related to the fact that if she were to return to South Korea, she would face adverse consequences as South Korean females from failed interracial marriages are treated poorly according to culture and tradition.  More specifically, she would suffer reduced career opportunities in South Korea.

Mr. Stergios did not successfully challenge her evidence and during the marriage, he even made threats to end their relationship if she did not comply with his demands, and reminded her that if he did, she would be “nothing” in South Korea.  Therefore, it was evident that he was aware of the cultural importance of Ms. Kim avoiding divorce.

Therefore, the court of appeal determined that there was ample evidence for the trial judge to conclude that Ms. Kim would be unable to reach her career potential in South Korea and did not interfere with his decision.

ENTITLEMENT TO SUPPORT

The evidence presented to the trial judge illustrated that throughout their relationship, Ms. Kim and her family supported Mr. Stergios and allowed him to reach his career potential and that Mr. Stergios undertook to do the same for Ms. Kim once she was successfully sponsored to live in Canada.

NON-APPLICATION OF SPOUSAL SUPPORT GUIDELINES

The trial judge also explained that the peculiar circumstances of this case took the support award outside of the Spousal Support Advisory Guidelines and that those circumstances included the severe economic disadvantage and hardship endured by Ms. Kim as well as to contractual and compensatory aspects of the support ordered.  As such, Ms. Kim was entitled to compensatory, non-compensatory and contractual spousal support and the court of appeal did not interfere with said decision.

Therefore, as previously mentioned, the appeal was dismissed and the court declined to address Mr. Stergios’s appeal of the trial costs, which were dependent on his success in this appeal.  In addition, the costs of the appeal, in the amount of $9,800.00, inclusive of all applicable taxes, were made payable by Mr. Stergios to Ms. Kim.

This decision, from the Ontario Court of Appeal, was released on December 12, 2011 and deals with an appeal from a trial decision of the Superior Court of Justice.

The parties in this case, who were never married but rather lived together from May 2007 to October 2007, are the parents of one child who was born in April of 2007.

The Trial Decision

At trial, the judge awarded sole custody of the child to the Respondent/Father with the caveat that he was to consult with the Applicant/Mother prior to making any major decisions involving the health and schooling of the child.

The judge then ordered that each parent was to have equal time with the child pursuant to a detailed and elaborate access order that she had created for them. Read more…

This case deals with an Applicant’s desire to extend the limitation period for her claim for an equalization payment.  Justice Kershman identified the sole issue to be decided as whether the Applicant should be granted an extension of time to apply for an equalization of net family property.

The parties in this case are both 61 years of age and have four children, all of whom are over the age of 21.  The Applicant brought an Application in September of 2008 in which she made claims for spousal support and the equalization of net family property.

The husband was properly served with the Application, yet he provided no Answer to same.  The Applicant then brought a motion to extend the time for the division of net family property and spousal support in December of 2009.

Once again, the husband was properly served and failed to respond to the motion. Read more…

The matter of Berry v. Berry was heard by the Court of Appeal for Ontario on October 17, 2011.  The issue at hand was a mobility application and how it affected a custody and access arrangement between the spouses.  The father, Mr. Berry, was appealing the decision of the Superior Court of Justice, dated October 20, 2010.

The parties were married for 10 years and had a three-year old son when they separated in 2010.  Their son has several health issues and has been diagnosed with Noonan’s Syndrome.  There was no contention between them about the other’s parenting abilities and most of the issues stemming from their separation were handled amicably.

When she filed for divorce, Ms. Berry also brought an urgent motion seeking permission to relocate, permanently, with her son, to Kingston, Ontario (from Toronto, Ontario).  The motion was adjourned, and then once heard, it was denied, and Justice Kelly determined that the mobility issue should be dealt with at trial. Read more…

This recent judgement of Justice MacPherson, Justice LaForme, and Justice Hackland from the Court of Appeal of Ontario was heard orally and released on November 17, 2011.  The main issue on appeal here was the correctness of the trial judge’s order of a lump sum payment for spousal support and a securing of that Order by way of a charge against the Appellant/Husband’s solely owned property.

Briefly, the judicial history of this case is as follows.   As a result of the Appellant/Husband failing to fulfill certain undertakings, his pleadings were struck and therefore the matter proceeded on an uncontested basis and as a default judgment hearing.  As such, the only witnesses present at the hearing were the Respondent/Wife and her sister. Read more…

This Motion was heard in the Ontario Superior Court of Justice by Justice McGee on April 27, 2011.  She released her judgement on May 2, 2011.

The wife in this case was seeking an interim order for the sale of the matrimonial home, or in the alternative, an award of interim disbursements in the amount of $85,000.00.  The husband was seeking an order for exclusive possession of the matrimonial home and a claim for a trust interest in same, for which the wife was solely on title, despite the fact that it was purchased during the marriage.  There was a slight discrepancy between the parties with respect to the value of the home and the outstanding mortgage on same, meaning the equity in the home was between $285,000.00 and $315,000.00. Read more…

The parties in this case were married on June 8, 1996 and separated after approximately 11 years of marriage on March 30, 2007. At the end of June 2007, the Respondent moved out of the jointly owned matrimonial home, granting the Applicant de facto exclusive possession of the matrimonial home which she was living in with the two children of the marriage.

During the marriage, in 2001, the Respondent and Applicant agreed that she would forego any viable career opportunities in order to stay home and take care of the family.  The Respondent held a prestigious executive position from which he was deriving a substantial income, thus facilitating the decision for the Applicant to become a stay-at-home mom.  Read more…