The decision of Justice Sherr, released on June 23, 2010, discusses the obligation of a step-parent with respect to child support when the biological parent is also fulfilling their support obligation.

In this case, the applicant mother (Hilliard) and respondent father (Popal) resided together from approximately March of 2001 until 20 July 2005.  Mr. Popal, who was not the biological father of Ms. Hilliard’s first child, Leyla, was nevertheless present at her birth and was admittedly very involved in the child’s life, acting as “the only father whom Leyla had ever known.”  Ms. Hilliard and Mr. Popal also had a biological child together, Aliya, born in October 2005.  The couple separated in 2005.

At the outset of the appearance, Ms. Hilliard reached a final settlement with Mr. Dixon, Leyla’s biological father, regarding his child support obligations.  It was agreed that Mr. Dixon would not have access to Leyla and would pay child support in the amount of $260/month, based on an income of $29,000 per year.

The main issue before Justice Sherr was Mr. Popal’s liability for the table amount of child support in light of Mr. Dixon’s support obligation.

Mr. Popal conceded that he was Leyla’s “parent” for support purposes as defined in subsection 1(1) of the Family Law Act (FLA).  According to the couple’s separation agreement of September 26, 2006, it was agreed that Mr. Popal would pay Ms. Hilliard the full table amount for child support for both children together with his proportionate share of special expenses.

Unfortunately, the separation agreement was never filed with the court, and Ms. Hilliard commenced an application for child support based on Mr. Popal’s actual income (instead of the amount of $50,000 agreed upon in the separation agreement).  Accordingly, Mr. Popal sought to reduce his support obligation for Leyla by the amount that Mr. Dixon was required to pay for her.

Mr. Popal’s Income

After separating, Mr. Popal commenced a second career as a real estate agent.  In the years 2006-7, while he was establishing himself, he continued to work as a collection agent and sought to deduct real estate expenses from his income.  In 2008, he was terminated as a collection agent, and in 2009, he worked primarily as a real estate agent and secondarily as a collection agent.  Ms. Hilliard asked the court to impute additional income to Mr. Popal pursuant to clause 19(1)(g) of the Child Support Guidelines (CSG) which states that the court may impute income to a parent where the parent unreasonably deducts expenses from his income.

Justice Sherr agreed that it was unreasonable for Mr. Popal to deduct his real estate expenses as there was no need for Mr. Popal to incur such expenses in 2006.  Justice Sherr contended that the respondent already had a well-paying job and that there was no reason the children should have to bear the cost of his new career, which was speculative at the time.

Although Justice Sherr refused to allow Mr. Popal to deduct his losses from his income, he also refused to “gross-up” Mr. Popal’s income for the years in question, something he would ordinarily have done where there was no merit to a new career path.  For the years 2009-10, Justice Sherr accepted Mr. Popal’s real estate expenses, as there was evidence to support the fact that such expenses were attributable to business and not personal use.  Mr. Popal’s income for 2010 was fixed at approximately $92,000 subject to adjustment following financial disclosure.

The Step-Parent Support Obligation

According to subsection 33(7) of the FLA, an order for child support should (a) recognize that each parent has an obligation to provide support for the child; and (b) apportion the obligation according to the CSG.  However, s. 5 of the CSG states that:

Where the spouse against whom an order for the support of a child is sought stands in the place of a parent for a child or the parent is not a natural or adoptive parent of the child, the amount of the order is, in respect of that parent or spouse, such amount as the court considers appropriate, having regard to these guidelines and any other parent’s legal duty to support the child.

Thus, s. 5 of the guidelines provides the court with discretion to determine what amount of child support Mr. Popal should pay.

In determining the appropriate amount of child support, a court should consider the guideline amount as well as the condition, means, needs and circumstances of the parties and of the children. A court may also consider the relationship between the person who stands in the place of a parent (Mr. Popal, in this instance) and the children, including the length of that relationship, whether it continues and the extent to which the children have come to rely on that person for support.

While some courts have approached this problem by simply deducting the biological parent’s support from the step-parent’s obligation, others have ordered that the step-parent be responsible for the full guideline amount.  In Kobe v Kobe, it was established that the court should order the table amount for a step-parent unless he or she can provide clear and compelling evidence that the table amount is inappropriate.

The case law suggests that a court is more likely to order a step-parent to pay closer to the guideline amount in the following circumstances:

(a) If the step-parent and child had a close relationship.
(b) If the step-parent and the child continue to have a close relationship.
(c) If the child enjoyed a high standard of living when the step-parent lived with the child.
(d) If the step-parent has the means to pay the table amount.
(e) If the biological parent has a remote relationship with the child.
(f) If the biological parent does not have a reliable payment history.
(g) If the parties have agreed to pay a higher amount in a separation agreement.
(h) If it is a long-standing relationship between the step-parent and the child.

Following the Supreme Court of Canada in Chartier v Chartier, Justice Sherr rejected the argument that a court’s failure to order a straight mathematical set-off (reduce Mr. Popal’s support obligation by the amount Mr. Dixon is paying in support) would discourage step-parents from assuming a parental role. Justice Sherr also rejected the argument that individuals may be reluctant to be generous towards children for fear that the generosity will give rise to parental obligations.

Ultimately, Justice Sherr adopted the approach taken in Mancuso v Weinrath and reduced Mr. Popal’s support obligation for Leyla by 50% of Mr. Dixon’s support obligation ($130/month) commencing in October 2009.  However, Justice Sherr refused to reduce the amount prior to that date as Mr. Popal had agreed in the separation agreement to pay the full table amount. Justice Sherr also noted that he would not tie future set-offs in child support to 50% of Mr. Dixon’s support obligation as there were too many variables that could affect future support obligations.

In making this decision, Justice Sherr considered a number of factors including but not limited to the fact that: Mr. Popal had agreed to pay his proportionate share of special expenses without requiring Ms. Hilliard to seek contribution from Mr. Dixon; if a deduction was not made in Mr. Popal’s support obligation, Ms. Hilliard would receive more support than recipients in cases where there is only one parent liable; Mr. Popal assumed the role of father to Leyla and had always assumed full financial responsibility for the child; and Mr. Popal had the financial means to pay child support at the table level.

Davies v Quantz, 2010 CarswellOnt 9748 (Ont CA)

The following judgment was an appeal from the Ontario Superior Court of Justice.  The decision of Justice Marshman, which was subsequently upheld by a unanimous Court of Appeal, dealt with the duration and amount of spousal support under the with-child support formula of the Spousal Support Advisory Guidelines (SSAG).

This case involved a couple who, although married 11 years, cohabited for a period of 18 years and 3 months.

A crucial factor in Justice Marshman’s analysis was the fact that Ms. Davies (the wife) was highly educated.  Throughout the early years of the couple’s cohabitation, Ms. Davies completed a Bachelor of Science, worked in a laboratory and then decided to switch careers, returning to school to receive a Bachelor of Commerce.  Throughout the 1990s, Ms. Davies worked for large companies, and by 1999, she had built up a strong clientele basis, obtained a license to sell insurance, and became a certified financial planner.

Mr. Quantz (Ms. Davies’ husband) was also highly educated; throughout their relationship he obtained a degree in medicine and became a respected cardiovascular surgeon.  After marrying in 1997, the couple had two children.  In 2000, the husband was offered a job in London, Ontario; when the family relocated, the wife gave up her job and did not work outside the home again.

The couple separated in 2008.  At the time, neither party had a significant net worth and, accordingly, the equalization payment was only about $81,000.  Justice Marshman calculated the husband’s income at $428,000 which resulted in child support of $5,217/month.

The main issue in this judgment was the amount and duration of spousal support to be paid to Ms. Davies.  In determining amount and duration of spousal support, a court first must conclude whether the applicant (the mother, in this instance) is entitled to support.  Case law in this area has careened back and forth over the years, but currently, there are three justifications for entitlement to child support:

1. Compensatory basis: career sacrifice and familial contribution (Moge v Moge, 43 RFL (3d) 345 (SCC))
2. Contractual basis: where there is an implied or explicit domestic contract
3. Non-Compensatory basis: based on need only (Bracklow v Bracklow, 44 RFL (4th) 1 (SCC))

The courts are also mindful of the judgment in Pelech/Pelech trilogy which highlights the importance of self-sufficiency on the part of the support recipient.  This approach may work against entitlement, especially in instances where the applicant is seen as capable of someday sustaining a similar lifestyle independently of their spouse.

In applying the aforementioned principles, Justice Marshman noted that in the first 9 years of cohabitation, the parties were both pursuing education and establishing their careers, and shared equally in the household responsibilities.

In contrast, for the last 9 years of cohabitation, the wife became a traditional housewife and the husband supported the family financially.  Overall, Justice Marshman found that the wife had been severely disadvantaged because of the role she assumed during the latter half of the marriage, as she gave up a lucrative career when she decided to move to Ontario with her husband.  Despite the fact that the wife had known since September 2007 that her husband was hoping that she would resume a career, the wife established entitlement to spousal support both on a compensatory basis (Moge) and because of need (Bracklow).

Once entitlement to spousal support has been established, the court will turn to the SSAG to determine the appropriate amount and duration of support; this will depend on the application of one of two formulas: the with-child support formula and the without-child support formula.  Although only advisory, the SSAG are nonetheless influential and courts will usually only vary them where there is justification to do so.  Since the husband’s income in this case was above $350,000, Justice Marshman discussed the section of the Guidelines dealing with the ceiling of $350,000.  Justice Marshman held that there is no absolute ceiling or “cap,” only an income level above which the standard fixed-percentage-of-income formula can be varied to generate a lesser percentage of income above that level.

As Justice Marshman noted in her judgment, the authors of the Guidelines discuss two possible approaches to support when the payor earns $350,000 or more.

The first approach uses the formula to determine a minimum amount for spousal support (an approach called “minimum plus”).  In order to determine the “minimum” spousal support range, a notional calculation is required to calculate spousal support at the $350,000 ceiling, using the child support payable at the ceiling.  There would be discretion to add to that minimum for incomes over $350,000.

The second approach would be one of pure discretion.  Once the payor’s income exceeds the ceiling, there would be no “minimum” for spousal support just a dollar figure that would take into account the actual amount of child support paid, an amount which can be very large for high income cases.  This approach becomes more relevant where the payor’s income is well above the ceiling.

Despite s. 15.2(3) of the Divorce Act, which authorizes the court to make a spousal support order for a definite or indefinite period, Justice Marshman concluded that Ms. Davies should be awarded $9,440/month for a period of 8 years.  In making a time limited support order, Justice Marshman noted that:

…the children are at an age where Ms. Davies could begin looking for work…[Ms. Davies] considers her career to be that of a mother but, given the separation, it is not realistic for her to wait until she is over 50 to even consider entering into the workforce.  Ms. Davies is a bright, well-educated woman who could have significant earning capacity if she put her mind to it.  In all of the circumstances, I find it appropriate to order spousal support which is above the range provided for a payor earning $350,000 but at the lowest end of the range for a payor earning $428,000.

In the end, Justice Marshman determined that the wife should receive spousal support at the low end of the range for her husband’s income, leaving her with 54.1% of the parties’ net disposable income. The Court of Appeal deferred to the trial judge and found no error.

The Court of Appeal did note, however, that there is nothing to prevent the wife from reapplying if circumstances are such that she can demonstrate that support should be continued beyond the 8 year period.

The matter of Pessotski v. Toronto Dominion Bank was heard by Justice Corbett of the Ontario Superior Court of Justice in April of 2011.

The spouses in this case had separated and Mr. Pessotski encumbered [laid claim to] the matrimonial home to two separate lending institutions (one of which was the TD Bank) under false pretences – he told them that he was not married.

This is a significant lie to tell within the context of both family law and real estate law because as a result of these unilaterally sought after and executed transactions, Ms. Pessotski did not consent to the loans, which is a violation of Section 23 of the Family Law Act.

Mr. Pessotski mortgaged one of the loans against the matrimonial home via a secured line of credit.  Ms. Pessotski therefore brought an Application to set aside this line of credit.

Ms. Pessotski’s argument that the TD mortgage is not enforceable is two-fold.  First, she claims TD should have known Mr. Pessotski was married as a result of past dealings between the couple and TD Waterhouse.  Second, TD did not register the mortgage until after it had notice of Mr. Pessotski’s status as a spouse.

TD’s argument was that they did not have knowledge of Mr. Pessotski’s spousal status and that the late registration of the encumbrance does not impact its enforceability.

It should be noted that between the time the encumbrance was issued by the bank and the time the matter against the bank was heard by the Court, Ms. Pessotski obtained a Caution on Title, which is something that essentially serves as notice to others that she has possessory rights in the property.  TD claims that this Caution does not create a legal interest in the property and that Ms. Pessotski’s application should have been directed at her husband and not them, as the money can be accounted for through some other means of settlement, such as an equalization payment or support payment.

Justice Corbett states that it is clear to him that Mr. Pessotski committed fraud by lying to the bank about his spousal status and obtaining financing for personal use without informing his wife or obtaining her consent.  However, insofar as the bank is concerned, Justice Corbett confirmed that they did not actually know of Mr. Pessotski’s spousal status, nor were they wilfully blind to it.

So, then where does the onus lie in this case?

Is the bank expected to make any inquiry into what their clients are telling them, or are they simply to take the information at face value?  Justice Corbett’s position is that under these circumstances the bank is under no obligation to search through the information of its affiliates in order to confirm what they heard from Mr. Pessotski.  The information that would have put people at the bank on notice of the spousal status was not available to the relevant TD personnel because the TD Waterhouse information could not be accessed directly by the TD loans department.  Because there was no basis for suspicion in this case, TD Bank did not do anything to assist in the fraud and there is no duty to undertake due diligence to confirm a declaration made by someone seeking a loan.

The relevant portions of the Family Law Act are as follows:

Equitable Mortgage for Value Without Notice

Section 21(1)(a): No spouse shall dispose or encumber an interest in a matrimonial home without the consent of the other spouse.

Subsection 21(2): If a spouse disposes of or encumbers an interest in a matrimonial home in contravention of subsection (1), the transaction may be set aside on an application under section 23, unless the person holding the interest or encumbrance at the time of the application acquired it for value, in good faith, and without notice, at the time of acquiring it or making an agreement to acquire it, that the property was a matrimonial home.

Justice Corbett determined that TD showed its actions fit into subsection (2) above and Ms. Pessotski was ultimately unsuccessful in her claim against the bank because the fault lied with her husband and not TD.  Justice Corbett’s reasoning was based on the fact that the bank acquired its mortgage security before it had notice of Ms. Pessotski’s spousal status, and therefore she had no entitlement under Section 23 of the Family Law Act.

The following decision of the Ontario Court of Appeal which was heard and released orally on April 3, 2012, deals with an appeal from an order made varying child support.

The appellant claims that the appeal should be heard and the order set aside for the following reasons:

1. She did not receive proper notice of the variation motion, and
2. As a result of the improper notice received, she did not attend on the motion, the result of which was an order varying child support.

Prior to the judges even hearing the appellant’s arguments, however, the respondent brought a preliminary motion and asked the appellate judges to adjourn the appellant’s appeal, based on the fact that she has failed to pay 2 costs orders.

The appellate judges declined his request and the appeal was heard.

The appellate judges cited rule 25(19) of the Family Law Rules, which states that a court may, on motion, change an order for various reasons, which include but are not limited to:

An order that was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

Therefore, the appellate judges affirmed that the Superior Court of Justice, which is the court that heard the motion and granted the variation, had jurisdiction to do so and consequently Rule 25(19) should be followed.   They continue in their reasons and state that notwithstanding the fact that there may have been some technical defect in service, they were satisfied that the appellant had direct knowledge of the motion to vary child support and so her argument with which she alleges inadequate notice was not accepted by the court.

Therefore, the appeal was dismissed and costs were not awarded to either party.

However, the appellate judges did state in their reasons that despite same, neither party is barred from seeking a variation of the order in question (regarding child support) on the basis of fresh information.

This case deals with a motion brought by the respondent/wife for imputations of income to the applicant/husband, temporary spousal and child support and interim disbursements.

The respondent/wife is asking the court to impute income to the applicant/husband in the amount of $325,000.00 and from there, make temporary orders for child support in the amount of $4,022.00 per month and spousal support in the amount of $8,230.00 per month.  The respondent/wife is also seeking approximately $150,000.00 to be paid towards interim disbursements.

The applicant/husband brought a cross-motion seeking an order for the sale of the matrimonial home, an order for joint parenting, and an order granting him access to the children each weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m.  Access was agreed to on consent and ordered.  However, with regard to the issue of the disposition of the matrimonial home, Justice Edwards stated that same should be dealt with at a case conference as the issue had not been conferenced.

The applicant/husband and respondent/wife were married in Iran on January 28, 2002.  They had two children and the respondent/wife was their primary caregiver.

On or around April 3, 2010 the applicant/husband entered into an agreement with his three brothers relating to his 25 percent shareholders’ interest in the Window City Group of Companies.  Pursuant to said agreement, the applicant/husband is said to have severed his ties with the Window City Group of Companies and disposed of his 25 per cent shareholding.

However, at the time of this judgement, it was still to be determined whether this agreement was entered into legitimately or solely to defeat the interests of the respondent/wife.  Additionally, the applicant/ husband admits that the agreement entered into was kept secret as he was fearful that it could impact a re-negotiation of the Window City Group of Companies long-term debt with its banker, Royal Bank of Canada.

On September 26, 2010, the respondent/wife asked the applicant/husband to leave the matrimonial home.

A dispute arose with regards to the date of separation, and same was still to be determined.

The applicant/husband claims that since the agreement of April 3, 2010, his only source of income is a consulting fee he receives from the Window City Group of Companies in the amount of $5,000 per month.  However, Justice Edwards noted that on his Financial Statement, he claimed to have $12,090.00 in monthly expenses.  Additionally, Justice Edwards determined that since April 2010, the applicant/husband had received approximately $102,000.00, either directly or indirectly, from the Window City Group of Companies.

The applicant/husband also listed debts in the amount of $1,567,000.00 on his Financial Statement, but failed to include the apparent debt of $1,500,000.00 to the Royal Bank of Canada which, pursuant to the agreement of April 3, 2010, the applicant/husband was to incur.

The information in the preceding paragraphs, coupled with the applicant/husband’s deficient disclosure, led Justice Edwards to seriously question the validity of the agreement and the existence of an outstanding debt to the Royal Bank of Canada in the amount of $1,500,000.00.  Therefore, while Justice Edwards acknowledged that any such determinations as to the validity of the agreement would have to be left to the trial judge, it was in his capacity to draw adverse inferences as a result of the absence of financial disclosure and the inconsistencies in the applicant/husband’s financial statement.

When determining a motion seeking an interim payment of fees or disbursements, one issue is the ability of the payor to fund any order made with respect to interim costs and disbursements.

A court can make an order for interim disbursements pursuant to rule 24(12) of the Family Law Act, however, several conditions must be met prior to doing so, and they are:

1. Impecuniosity;
2. The merits of the case; and
3. Special circumstances to satisfy the court that case is within the narrow class of cases where this extraordinary exercise of the court’s power are appropriate.

In addition, an order for interim disbursements must be made in order to “level the playing field” between the parties.

Justice Edwards considered all of the above and determined that the respondent/wife would need the services of a professional evaluator/litigation accountant to review the complicated corporate disclosure that had already been ordered.  He also felt that she had a meritorious case to advance for a potentially substantial equalization payment if the agreement of April 3, 2010 was deemed invalid.  Lastly, Justice Edwards was satisfied that she did not have the wherewithal to advance her claims without the payment of interim costs and disbursements.  As such, Justice Edwards ordered that the applicant/husband pay to the respondent/wife the sum of $125,000.00 for interim costs and disbursements.

With regard to the respondent/wife’s claims for temporary child and spousal support, Justice Edwards adjourned same to a case conference.

An important aspect of many family law matters is the exchange of financial disclosure.  The information pertaining to an individual’s annual income, as well as information pertaining to his or her assets and liabilities as at the date of marriage and the date of separation, is required to properly quantify child and spousal support obligations, if any, and calculate the equalization payment that may be owed from one party to the other.  The cases that are resolved swiftly and amicably are those where each party is quick to disclose all relevant financial information.

Refusing to provide or hiding certain documents would almost certainly impede the ability of the parties to reach a resolution., So what are the consequences of doing this?

The matter of Bourgeois v. Bourgeois was before the Ontario Superior Court of Justice last year and Justice McGee was faced with this very issue.  She had to determine whether or not the party causing delay as a result of a reluctance to provide the requisite disclosure should be responsible for covering some or all of the costs endured by the opposing party as a result.

The husband was self-employed.  When parties are self-employed, their income is often difficult to calculate.  Sometimes, the only way to access the documents you need is to convince the Court to Order that certain documents are relevant and that they must be disclosed.

In this instance, Orders were issued against the Husband on more than one occasion between December of 2008 and January of 2010 and he failed to abide by these Orders.  When the parties moved to a Settlement Conference, it was determined that meaningful negotiations pertaining to any issue that revolved around the Husband’s income could not be conducted as a result of the Husband’s omissions or incomplete submissions.

The wife was successful in her pursuit of costs and was awarded substantial indemnity costs in the amount of $8,000.00, plus an additional $750.00 for preparing her cost submissions in advance of the October 2010 Settlement Conference.  She did not receive full indemnity because some issues, specifically those related to the children apart from support, were dealt with properly at the Settlement Conferences.  Justice McGee also explained that the bulk of the wife’s pursuit of costs should be addressed at the Motion returnable in February of 2011.

In her decision, released in January of 2011, Justice McGee explained that Mr. Bourgeois consistently failed to prepare for the Settlement Conferences by neglecting his disclosure obligations and as a result, he was responsible for the inability of the parties to work towards a full and final settlement.  But was he was acting in “bad faith,” as this type of behaviour is discouraged by the Courts.

The concept of “bad faith” is sourced in Rule 24(8) of the Family Law Rules and this was part of the Husband’s argument.  She explained that Mr. Bourgeois intended to inflict financial and/or emotional harm, for example by waiting 31 months to have his business valuated, and while Justice McGee did not agree that such an inference could be drawn, she made it clear that bad faith was not required in order to award costs at this stage of the proceedings.

Mr. Bourgeois still delayed the very necessary valuation and displayed other similar acts of indifference toward the gathering and production of financial documents.  Ms. Bourgeois’ recourse lied elsewhere in the Family Law rule book.

Ms. Bourgeois’ position was, in the end, assisted by reference to Rules 17 and 18 of the Family Law Rules, which governs the conduct of Conferences.  Subsection c. specifically mandates the disclosure of relevant evidence.

Rule 18 requires that Judges award costs – immediately – where a party is not prepared for a conference and/or where they have not produced the required disclosure or have otherwise failed to follow the Rules.  For all of these reasons, the husband was in some hot water with the Court and had to pay a price.

This case is an important lesson to those engaged in Family Law litigation, as delaying or refusing to provide relevant disclosure will only, in the end, result in your spending more time in a Court room and paying a premium for doing so.

The following judgement which was released on January 20, 2011, deals with a woman’s motion for interim support arising out of her application under the Succession Law Reform Act.

According to her extensive Affidavit evidence, the woman, whom we will refer to as woman A, claimed that she was a dependent and therefore entitled to support under the provisions of the Succession Law Reform Act, based on the fact that she was involved in an 11-year relationship with the deceased which she believed was “quasi-spousal” thus rendering them akin to “common-law spouses.”

This motion is interesting because it was contested by another woman, whom we will refer to as woman B, who claimed that she was also entitled to support as a result of her long-term relationship with the deceased thus making her his common law spouse. Woman B was also appointed by the deceased as the trustee of his estate.

When determining whether or not the deceased and woman A were in fact in a common law relationship such that she would be entitled to interim support, Justice Belleghem considered the Molodowich factors which include, but are not limited to, the following:

• issues of shelter,
• sexual and personal behaviour,
• services,
• social interaction,
•  societal attitudes towards them,
• economic support; and
• children.

The facts illustrated that the deceased and woman A lived together for substantial periods of time and slept under the same roof, had sexual relations, felt amorous towards one another, communicated on a personal level, ate many meals together, exchanged gifts and assisted each other with problems or during illness.  The deceased and woman A prepared meals together, shopped and maintained the household jointly.

Essentially, they were treated by the community as a couple. The deceased was also the primary financial provider for woman A and he portrayed a fatherly attitude towards her children.  Consequently, woman A was entitled to support.

However, the deceased also maintained a similar household with woman B and as a result woman B claimed that, to find that woman A was entitled to support, would be to suggest that the deceased was in a bigamous relationship and would affect her own claim for support.

Case law was presented to Justice Bellengham illustrating an instance where support was ordered for a dependent even where there was another lawful wife.

Additionally, Justice Bellengham stated that ordering support for woman A would not preclude woman B’s entitlement to support nor would it suggest that the deceased was in a bigamous relationship, as neither woman A nor woman B were lawfully married to him.

Therefore, Justice Bellengham stated that the onus to prove entitlement and need for interim support fell on woman A who would need to produce credible evidence to be weighed and assessed by the court and, if after the assessment the court concluded that woman A established a claim for support, then same could be ordered.

Justice Bellengham stated that after considering and weighing all the evidence, woman A could establish her claim for support and therefore was entitled to same.  However, the evidence was not sufficient to entitle her to an order for support for $3,000.00 per month as she requested.  Rather, Justice Bellengham was satisfied that an award of $1,500.00 per month would be appropriate.

Lastly, woman A was awarded her costs of the motion which were fixed at $3,000.00, inclusive of disbursements and tax.

This decision which was released by the Ontario Court of Appeal on February 7, 2012, affirms the long standing principle that appeal judges are not trial judges and, as such, they will rarely review and weigh fresh evidence or consider it when making a determination regarding an appeal.  Rather, appeal judges will defer to the evidentiary conclusions made by the trial judges, as they are generally in the best position to weigh same as they are given an opportunity to review submissions and question the parties directly.

Essentially, this case deals with an appeal brought by the Father due to his upset and dissatisfaction with paragraphs 3 and 4 of an Order from Justice Kealey dated June 9, 2010.   The very stringent paragraphs provided for the following:

3. The Father’s access with the child, born September 18, 1995 shall only be with her consent; and
4. The Father shall not contact the child in any manner, save to respond to contact initiated by her and his response shall only be via the same medium used by the child to contact him.

The Father argued that he should be given the opportunity to initiate contact with the child and stated that the circumstances have changed since the Order was made such that it is no longer appropriate.  To substantiate his claims, the Father put forward and presented to the appeal judges an affidavit with several exhibits.

The appeal judges drew issue with the provision of the affidavit and stated that they cannot act on untested material placed before them by one party to the appeal at the outset of the oral argument.  Nor can they accept as accurate oral representations made by one party to the appeal in the course of the submissions. Therefore, the appeal judges stated that Justice Kealey was justified when making the Order dated June 9, 2010, and that they had no basis upon which to vary same.

The appeal judge very clearly stated that the appellate court was not the proper forum in which to evaluate and consider fresh evidence of the change in circumstances since June 9, 2010.

The appeal judges then stated that the Father’s second claim, namely that the order of June 9, 2010, was biased in favor of the mother, was completely unfounded.  Rather, they affirmed that Justice Kealey reviewed and considered the child’s expressed wishes which he was entirely able to do and made an order pursuant to same.

Therefore, the appeal was dismissed and the Mother was entitled to her costs at a fixed amount of $5,000.00 inclusive of disbursements and applicable taxes.

The matter of Murdoch-Woods v. Zywina was heard by Justice Wright of the Ontario Superior Court of Justice over the course of three days, with the judgement coming down on January 28, 2011.  The final issue, other than costs, that needed to be resolved by the parties was the calculation of the payor father’s income for the purposes of determining what his child support obligations were, and what they should have been in the past.  The parties could not agree on what should be taken into account in determining “income” for the purposes of the Federal Child Support Guidelines (“CSG”).

A temporary Order for child support was made in October 2008, where it was determined by Justice Warkentin that the father earned $49,667.00 in 2007, after which time the father was given six months to return to Court with evidence of his actual income.

In 2007, after losing his job, his accrued pension in the amount of $12,381.00 was rolled-over into an RRSP.  This showed up on his 2007 income tax return as “income” and was factored into Justice Warkentin’s calculation.  In 2008, the father withdrew approximately 75% of the money rolled into the RRSP, as he remained unemployed.

The mother argued that this money should have been used to calculate income for the purposes of determining child support.  The father, Mr. Zywina, argued that there was some “double-dipping” going on.  Ms. Murdoch-Woods also suggested her ex-husband was intentionally under-employed and that his income should include Employment Insurance retraining benefits he received.

As a result, sections 16 and 17 of the CSG were the relevant legislative starting points for Justice Wright.

Justice Wright advised that a literal reading of section 16 of the CSG lends towards the mother’s argument.  However, Judges are often left with the task of reading the statute in a way that prevents an absurd result, a practice otherwise known as “constructive statutory interpretation.”

Section 17 of the CSG also provides Justice Wright, and others in his position, with a leg to stand on because it allows for deviation from the strict language of section 16 where the income as determined under said section was deemed not to be the “fairest” determination.  Turns out the father was indeed ‘Zy-wina’ on this point.

With respect to the issue of the retraining benefits, the father was also successful in his argument that it should not be included as income.  Justice Wright explains that “this is not money he ever saw.”  The money was paid directly to the college at which the training took place and there was really only one use it could have been put to – training.  Mr. Zywina did not have access to this money for any other purpose or to directly generate income in any way.

On January 26, 2012, Blishen J. of the Ontario Superior Court of Justice released her decision for the Shaw v. Shaw matter.  This decision brings forward and deals with a claim of battery as well as claims for damages in a family law context.

Although the parties were able to resolve the majority of the family law issues, including spousal support and the division of the proceeds of sale of the matrimonial home, by partial Minutes of Settlement dated February 23, 2011, some issues remained unresolved.

The facts of this case are as follows.

The parties entered into a short term marriage on August 18, 2006 which broke down approximately one (1) year later on August 22, 2007, when the husband assaulted her and was subsequently criminally charged. This was the husband’s second marriage;  he was a widower.

As a result of the assault, the wife suffered a serious fracture to her right wrist, which required surgery and the insertion of screws and a metal plate.  In addition, the husband was ordered not to attend at the matrimonial home or have any contact with the wife.

In October 2007, the parties initiated their court proceedings which eventually resulted in this trial.  The parties were able to execute a partial Minutes of Settlement and various orders were made in relation to their matter, for example, the matrimonial home was to be sold to the husband, the wife was to receive $1,000.00 per month in spousal support (terminable on April 30, 2011) as well as $90,000.00 from the net proceeds of sale of the home.

The husband was found not guilty of assault causing harm to his wife.  The wife, however, continued to suffer pain and disability due to the fracture of her right wrist which required therapy, rehabilitation, and medical care.

Prior to delving into the claim for damages, Blishen J. dealt with the remaining property issues in dispute.  Namely, the husband alleged that certain items of his were missing from the matrimonial home, in which he was still residing, and further alleged that the wife took same.  The wife counterclaimed that she was not responsible for the missing items nor did she have them in her possession.   After hearing lengthy testimony from the husband, wife, the husband’s sister and the husband’s son, Blishen J. ordered the following:

• The wife was to return to the husband various household items and contents to which he was entitled, namely the laptop computer, and former dining room light fixture;
• The husband’s testimony in relation to the items he inherited from his late wife’s estates was plagued with weaknesses, and as a result, did not meet the balance of probabilities test; and
• Both the husband’s and wife’s testimonies with regards to the items he inherited from his parent’s estate were plagued with weaknesses.  However, it was found that the missing items were, in fact, in the wife’s possession and were worth at least $10,000.00 on the date of separation.  Therefore, $10,000.00 was to be added to the equalization payment owed by the wife to the husband.

Following this, Blishen J. went on to address and determine the wife’s claim for damages due to the alleged assault by the husband on August 22, 2007.

Blishen J. was first asked to determine whether, on a balance of probabilities, the actions of the husband constituted a battery, more specifically whether he intended to cause harmful contact when he brushed against the wife and ejected her from the matrimonial home, causing her to land on the cement walkway and injure her right wrist.

After hearing testimony from the husband, wife, the husband’s son and the constable who interviewed the wife, Blishen J. determined that despite apparent weaknesses in both parties’ testimony, on a balance of probabilities, the wife was able to prove that the husband intentionally caused harmful contact thereby committing the tort of battery especially given the fact that her evidence was corroborated by the husband’s son and the constable.

Once it was determined that the husband’s actions did, in fact, constitute a battery, Blishen J. went on to determine the appropriate damages award for the wife.  When reviewing the injury and its effect, Blishen J. stated that due to the actions of the husband, the wife, who was right-hand dominant, suffered a badly broken right wrist for which she required surgery.  However, following the surgery, she continued to have diminished range of motion in her right wrist.  She complained of weakness and numbness in her fingers in her right hand and she suffered and continues to suffer significant pain and discomfort in her hand and wrist.

As a result of the wife’s persistent pain and discomfort in her right hand and wrist area which caused her difficulty when performing activities of daily living and which radiated from the wrist up to the shoulder, she was diagnosed with chronic regional pain syndrome.   She was told to attend pain clinic sessions of three and a half hours once a week for 10 weeks and then once per month until the end of 2010.  In 2011, she returned to the clinic approximately two or three times.

Plate removal was also noted as a possibility however, there were suggestions that same would not improve her condition and rather could worsen the hypersensitivity in her hand.

The wife suffered from sleep deprivation  and depression which caused suicidal tendencies.  As a result, she was diagnosed with major depressive disorder and post-traumatic stress syndrome/anxiety disorder.   The aforementioned was seriously affecting the wife’s quality of life as well as contributing towards the fact that she was unable to resume gainful employment.

It was further noted that the wife could minimally perform most of the tasks of daily living, but only with a great deal of pain due to her right wrist injury and as such, it was recommended that she should obtain assistance for housekeeping and home maintenance.

Given the above, Blishen J. found that the impact of the injury on the wife has been significant and life altering.

When considering her claim for general and aggravated damages, Blishen J. stated that aggravated damages are not awarded in addition to general damages, but general damages are assessed by “taking into account any aggravating features of the case and to that extent increasing the amount awarded.”

In addition, Blishen J. quoted Ontario case law and explained that the purpose of aggravated damages, in cases of intentional torts, is to compensate the plaintiff for humiliating, oppressive, and malicious aspects of the defendant’s conduct which aggravate the plaintiff’s suffering.

Based on the facts that the wife was violently ejected from the home, in the middle of day, in front of the husband’s son which resulted in both physical and psychological damage to the wife, Blishen J. awarded the wife general and aggravated damages in the amount of $65,000.00.

Blishen J. did not award punitive damages due to the fact that although reprehensible, the husband’s conduct did not warrant an award of punitive damages in order to punish him and deter him and others from committing a similar act.

The next aspect of the damages award considered was future loss of income and/or loss of competitive advantage and Blishen J. stated that due to the severity of the injury sustained, the wife has and will suffer economic loss due to her inability to compete for gainful employment as her marketability as an employee has been substantially affected by her injury.

Therefore, Blishen J. determined that without having suffered a wrist injury, the wife would have been able to earn at least $10,000.00 to $15,000.00 annually.  Given her age, which at the time of trial was 63 years old, and so she could have continued to be employed until the age of retirement, namely 65 years, damages for loss of competitive advantage were awarded in the amount of $25,000.00.

When discussing whether to award future care costs, Blishen J. stated that the wife would need aides for homemaking, housekeeping assistance, the services of a handyperson, and lawn maintenance and snow removal.  However, Blishen J. refrained from assigning an actual value to same and rather stated that final figures were to be provided by an actuary and then submitted prior to signing the Judgement.

Interest was also considered and was ordered to be calculated as per s. 128 of the Courts of Justice Act from the date of the injury to the date of the release of the judgment.

Lastly, Blishen J. stated that in the event that both parties were unable to agree on costs, submissions were to be provided by the husband within 60 days and the wife within 30 days.  Each party was given an additional 14 days to provide a reply.