The Canadian Abridgment edigests -- Family Law - Ontario

Transcription

1 FAM.III.10.b.iii.A The Canadian Abridgment edigests -- Family Law - Ontario August 30, 2010 Classification Number: III.10.b.iii.A Family property on marriage breakdown -- Matrimonial home -- Order for possession -- Rights of unmarried couples -- Heterosexual couples Man and woman started living in home registered in woman's name -- Parties had one child but separated four years and seven months later -- Woman was charged with assault that allegedly occurred on day of separation -- Bail condition prohibited woman from living in matrimonial home without further order of court -- Woman and child moved to rental property that woman owned -- Both of woman's properties were accumulating mortgage and tax arrears -- Woman commenced application for corollary relief -- Man commenced counter-application for interest in properties -- Mortgagee initiated power of sale proceedings -- Woman was granted interim custody with man having supervised access -- Man brought motion for order permitting sale of matrimonial home -- Woman brought cross-motion for vacant possession of matrimonial home -- Motion dismissed; cross-motion granted on terms -- Woman was to prepare video inventory of contents before taking possession and could sell home if unable to address arrears crisis -- Man would only be able to obtain remedy after establishing trust claim at trial -- Even if man established trust claim, his remedy might be monetary award and not ownership interest -- Equity in home was very small -- Man admitted not being able to deal with mortgage and tax arrears -- Since woman was registered owner, she ought to be allowed to try to address arrears crisis -- Further, child's situation required stability and had to be given priority -- Child had been removed from only home he had known -- Man's failure to pay previously-ordered child support was relevant factor -- Case was referred to case management since case involved high conflict and had got out of control. Norman v. Connors (2010), 2010 ONSC 1975, 2010 CarswellOnt 2297, D.J. Gordon J. (Ont. S.C.J.) [Ontario] FAM.III.15 Classification Number: III.15 Family property on marriage breakdown -- Miscellaneous issues Parties married in 1997, had one child, separated in 2006 and divorced in Parties' matrimonial home was in name of mother and parties disagreed on disposition of matrimonial home -- Wife listed home for $460,000, had two offers to purchase home in February 2010, for $451,090 and $430,000, and husband did not respond to wife's request for approval -- Pursuant to order of March 2010, in accordance with parties' minutes of settlement, wife was entitled to $25,000 from net proceeds of sale of home immediately upon closing, both parties were required to execute any agreement of purchase and sale and husband was required to pay file:///y /Corporate%20Marketing/public/Legal%20...%20Files/ /CanAbr-Family(Ont) htm (1 of 10) [8/30/2010 1:20:46 PM]

2 for appraisal within deadline -- Husband failed to obtain appraisal, obtaining instead letter of opinion in March 2010, providing range of sale price between $440,000 and $480, Subsequent to March 2010 order husband informed wife husband would not approve offer under $460,000 and would not sign any offer if wife moved with child to home of wife's parents where wife's brother, with alleged mental condition, also resided -- Wife brought motion for authorization to sell matrimonial home without husband's consent -- Motion granted -- Order was issued authorizing wife to sell home without husband's consent, subject to sale price of at least $450,000, with wife entitled to immediate receipt of $25,000 from proceeds and net balance of proceeds to be held in trust pending further order or parties' agreement -- Evidence supported conclusion that sale of home was urgent and requiring both parties' consent to sale was impediment to sale -- Husband paid no carrying charges on home since separation, and wife required flexibility to facilitate sale -- Floor sale price was warranted on basis of prior offers as evidence of fair market value and in absence of formal appraisal. Ma v. Tu J.) [Ontario] (2010), 2010 ONSC 2064, 2010 CarswellOnt 2173, Spies J. (Ont. S.C. FAM.IV.1.b.ii Classification Number: IV.1.b.ii Support -- Spousal support under Divorce Act and provincial statutes -- Entitlement -- Contribution to marriage Parties were married in 1973, had three children, separated in 1991 and divorced in Wife had primary responsibility of children during marriage and had little employment outside home -- Husband had been partner at large accounting firm and achieved financial success in finance industry -- Wife had custody of children after separation, while husband had very little contact with them -- Husband claimed income from 1995 to 2010 was $3,417,169, and wife's income for same period was $783, Wife applied for spousal support -- Application granted -- Husband was ordered to pay $2,000 per month in spousal support -- Amount was in appropriate range given contribution of wife to marriage -- Husband's income was imputed to be $4,900,000 from 1995 to FAM.IV.1.g.i Classification Number: IV.1.g.i Support -- Spousal support under Divorce Act and provincial statutes -- Interim support -- General principles Parties lived together for two years, married in 1996, had three children and separated in Wife brought interim motion for spousal and child support, retroactive spousal and child support, financial disclosure file:///y /Corporate%20Marketing/public/Legal%20...%20Files/ /CanAbr-Family(Ont) htm (2 of 10) [8/30/2010 1:20:46 PM]

3 and non-dissipation order -- Motion granted -- Husband paid wife and children's expenses -- Husband offered to pay $200,000 in addition to mortgage and taxes on home and children's tuition and other extraordinary expenses -- Wife's motion would not be heard for six months -- Wife applied for interim, interim support -- Application granted -- Husband ordered to pay $200,000 spousal and child support as offered, in addition to children's tuition and s. 7 expenses -- Wife needed support immediately but would not suffer hardship if retroactive award were not ordered -- Husband's offer and amounts he had paid so far amounted to $250,000, more than twice wife's alleged monthly expenses for six-month period until motion was heard -- Husband's proposal would avoid any hardship to wife -- Interim, interim order would continue until return of wife's motion, without prejudice to parties' respective positions -- Order was also subject to further court order. Moorthy v. Haefele (2010), 2010 CarswellOnt 848, 2010 ONSC 1109, Ricchetti J. (Ont. S.C.J.); additional reasons at (2010), 2010 CarswellOnt 1876, 2010 ONSC 1917, Ricchetti J. (Ont. S.C.J.) [Ontario] FAM.IV.1.i.v.A Classification Number: IV.1.i.v.A Support -- Spousal support under Divorce Act and provincial statutes -- Enforcement of award -- Limitation or reduction of arrears -- General principles Parties were married in 1973, had three children, separated in 1991 and divorced in Wife had primary responsibility of children during marriage and had little employment outside home -- Husband had been partner at large accounting firm and achieved financial success in finance industry -- Wife had custody of children after separation, while husband had very little contact with them -- Husband claimed income from 1995 to 2010 was $3,417,169, and wife's income for same period was $783, Husband reduced support amounts from 1996 to 1999 and didn't pay from 2001 to July Wife received total of $40,864 in spousal support to Wife applied for arrears of spousal support -- Application granted -- Husband was ordered to pay $203,000 for arrears of spousal support -- Husband's income was imputed to be $4,900,000 from 1995 to 2010 because he had not disclosed all of his income -- Wife was entitled to $298,600 in spousal support to date because of wife's contribution to marriage and husband's imputed income -- Husband argued that claim for arrears ought not to be applied retrospectively beyond three years prior to application -- There is no such time limit where party obliged to pay support has failed to disclose material change in his circumstance to avoid paying more support, as husband did here. FAM.IV.2.a.iv Classification Number: IV.2.a.iv file:///y /Corporate%20Marketing/public/Legal%20...%20Files/ /CanAbr-Family(Ont) htm (3 of 10) [8/30/2010 1:20:46 PM]

4 Support -- Child support -- Duty to contribute -- Child at school Parties were married in 1973, had three children, separated in 1991 and divorced in Youngest child, SA, was 22 years old and had graduated from university at time application was commenced on August 30, Mother applied for child support arrears in regards to SA; father sought to reduce arrears based on period of time SA resided away from home -- Application granted -- There was no reason to exercise discretion to reduce arrears based on period of time that SA resided away from home because father did not act equitably towards mother and children -- Father received windfall benefit because mother was unable to claim all arrears that would have been owed to her with respect to elder two children. FAM.IV.2.a.vii Classification Number: IV.2.a.vii Support -- Child support -- Duty to contribute -- Miscellaneous issues Dependent child of marriage -- Parties were married in 1973, had three children, separated in 1991 and divorced in Youngest child, SA, was 22 years old and had graduated from university at time application was commenced on August 30, SA travelled to Europe in June and July 2007 as gift from mother, and commenced full time employment in September Mother applied for child support arrears in regards to SA; father opposed application on ground that SA was not dependent child of marriage -- Application granted -- SA was dependent child of marriage until she commenced full time employment, as she continued to rely on her mother for financial support, she had consent of mother as to manner in which she pursued studies, and she was encouraged to take brief holiday paid for by mother before commencing employment -- Mother's decisions were reasonable and as she was only parent responsible for SA's guidance, SA was dependent child of marriage. FAM.IV.3.a.iii Classification Number: IV.3.a.iii Support -- Child support under federal and provincial guidelines -- Application of guidelines -- Shared or split custody Mother and father had four children -- Parties agreed to share custody of two younger children while father was to have custody of two older children -- Mother's annual income was $88,860 while father's was $23, Mother alleged father was financially irresponsible and would not use child support for benefit of children -- file:///y /Corporate%20Marketing/public/Legal%20...%20Files/ /CanAbr-Family(Ont) htm (4 of 10) [8/30/2010 1:20:46 PM]

5 Father brought application for child support -- Application granted -- Mother was required to pay father $1,606 per month for child support from April 1, Amount was determined by deducting table amount payable by father for two children from table amount payable by mother for four children -- No basis for adjusting setoff amount was shown -- Mother's higher income was not in itself sufficient reason for making her pay more than set-off amount -- Father was not found to be financially irresponsible -- Both parties contributed to financial predicament in which they found themselves. Ciraco v. Ciraco (2010), 2010 CarswellOnt 1628, 2010 ONSC 1751, Hourigan J. (Ont. S.C.J.) [Ontario] FAM.IV.3.c.iii Classification Number: IV.3.c.iii Support -- Child support under federal and provincial guidelines -- Determination of spouse's annual income -- Imputed income Mother and father had four children -- Parties agreed to share custody of two younger children while father was to have custody of two older children -- Mother's annual income was $88,860 while father's was $23, Father's annual income had previously been about as high as mother's -- Mother wished to have income imputed to father -- Mother also alleged father was financially irresponsible and would not use child support for benefit of children -- Father brought application for child support -- Application granted -- Mother was required to pay father $1,606 per month for child support from April 1, Amount was determined by deducting table amount payable by father for two children from table amount payable by mother for four children -- No income was imputed to father -- Father had not made deliberate choice to earn less than he was capable of earning -- Father was currently working in best available employment while looking for better job -- Father was not found to be financially irresponsible -- Both parties contributed to financial predicament in which they found themselves. Ciraco v. Ciraco (2010), 2010 CarswellOnt 1628, 2010 ONSC 1751, Hourigan J. (Ont. S.C.J.) [Ontario] FAM.IV.3.c.iii Classification Number: IV.3.c.iii Support -- Child support under federal and provincial guidelines -- Determination of spouse's annual income -- Imputed income Parties married in 1997, had one child, separated in 2006 and divorced in Following separation child resided with mother in matrimonial home and mother had de facto custody of child -- Following separation mother alleged that parties agreed to mother's use of one-half of $80,000 in parties' jointly owned software services company for child support, living expenses and carrying costs of matrimonial home file:///y /Corporate%20Marketing/public/Legal%20...%20Files/ /CanAbr-Family(Ont) htm (5 of 10) [8/30/2010 1:20:46 PM]

6 -- Mother was unemployed and was upgrading skills in accounting course -- Father was software consultant, provided consulting services during marriage through parties' company, and company's unaudited financial statements reported $100,800 in revenue in 2006, $718,455 in sales and consulting fees and 2007, and $19,199 in revenue in Father's financial statement sworn February 12, 2009 declared $80,000 annual income, statement sworn June 18, 2009 declared $0 income, and father alleged he continued to be unemployed and was actively seeking employment -- Father paid no child support since divorce -- Mother brought motion for interim child support -- Motion granted -- Father was ordered to pay $647 per month in interim child support -- Amount of support was appropriately based on imputing annual income to father of $70,000, pursuant to Federal Child Support Guidelines, as reflection of father's earning potential -- Absence of evidence of father's job search and father's inconsistent financial statements supported conclusion that father either failed to disclose income or was avoiding work in order to avoid child support obligations. Ma v. Tu J.) [Ontario] (2010), 2010 ONSC 2064, 2010 CarswellOnt 2173, Spies J. (Ont. S.C. FAM.IV.3.c.iii Classification Number: IV.3.c.iii Support -- Child support under federal and provincial guidelines -- Determination of spouse's annual income -- Imputed income Parties were married in 1973, had three children, separated in 1991 and divorced in Youngest child, SA, was 22 years old and had graduated from university at time application was commenced on August 30, Father claimed income from 1995 to 2010 was $3,417,169, and mother's income for same period was $783, Mother applied for child support arrears in regards to SA -- Application granted -- Father's income was imputed to be $4,900,000, as calculated by expert witness, taking into account benefits, dividends, capital gains and sale of stock options, which father had not disclosed. FAM.IV.3.f Classification Number: IV.3.f Support -- Child support under federal and provincial guidelines -- Interim award Parties lived together for two years, married in 1996, had three children and separated in Since summer 2009, children were residing with parties on alternate weeks -- Mother brought interim motion for spousal and child support, and other relief -- Father brought cross-motion for adjournment of mother's motion -- Father paid mother and children's expenses -- Husband offered to pay $200,000 in addition to mortgage file:///y /Corporate%20Marketing/public/Legal%20...%20Files/ /CanAbr-Family(Ont) htm (6 of 10) [8/30/2010 1:20:46 PM]

7 and taxes on home and children's tuition and other extraordinary expenses -- Wife's motion would not be heard for six months -- Wife applied for interim, interim support -- Application granted -- Father ordered to pay $200,000 spousal and child support as offered, in addition to children's tuition and s. 7 expenses -- Motion judge could allocate amount between spousal and child support -- Interim, interim support orders were outdated because of existence of Child Support Guidelines, but case was unusual -- Father's actual income was not known -- Parties did not live lifestyle associated with multimillion dollar income which could be relevant in determining child support -- Interim, interim order would continue until return of mother's motion, without prejudice to parties' respective positions -- Order was also subject to further court order. Moorthy v. Haefele (2010), 2010 CarswellOnt 848, 2010 ONSC 1109, Ricchetti J. (Ont. S.C.J.); additional reasons at (2010), 2010 CarswellOnt 1876, 2010 ONSC 1917, Ricchetti J. (Ont. S.C.J.) [Ontario] FAM.IV.3.i.ii Classification Number: IV.3.i.ii Support -- Child support under federal and provincial guidelines -- Enforcement of award -- Limitation or reduction of arrears Parties were married in 1973, had three children, separated in 1991 and divorced in Youngest child, SA, was 22 years old and had graduated from university at time application was commenced on August 30, SA travelled to Europe in June and July 2007 as gift from mother, and commenced full time employment in September Mother received total of $144,773 in child support for SA to Mother applied for child support arrears in regards to SA -- Application granted -- Father was ordered to pay $260,000 in arrears of child support in respect of SA -- Father's income was imputed to be $4,900,000 from 1995 to 2010 because he had not disclosed all of his income -- Mother was entitled to $337,593 in child support for SA pursuant to Child Support Guidelines and because of income imputed to father -- Father argued that claim for arrears ought not to be applied retrospectively beyond three years prior to application -- There is no such time limit where party obliged to pay support has failed to disclose material change in his circumstance to avoid paying more support, as father did here. FAM.IV.3.k.iii Classification Number: IV.3.k.iii Support -- Child support under federal and provincial guidelines -- Practice and procedure -- Disclosure of financial information Parties were married in 1973, had three children, separated in 1991 and divorced in Youngest child, file:///y /Corporate%20Marketing/public/Legal%20...%20Files/ /CanAbr-Family(Ont) htm (7 of 10) [8/30/2010 1:20:46 PM]

8 SA, was 22 years old and had graduated from university at time application was commenced on August 30, Father claimed income from 1995 to 2010 was $3,417,169, and mother's income for same period was $783, Mother applied for child support arrears in regards to SA -- Application granted -- Father intentionally failed to disclose to mother benefits he received from date of separation, during negotiations leading to separation agreement and amendments, until disclosure was ordered as part of litigation -- Mother would not have agreed to reduction of child and spousal support had she been aware of father's financial circumstances, which he was obliged to disclose. FAM.IX.3.a Classification Number: IX.3.a Custody and access -- Interim custody -- General principles Parties married in 1997, had one child, separated in 2006 and divorced in Following separation child resided with mother in matrimonial home and mother had de facto custody of child -- Father objected to mother's intention, once matrimonial home was sold, to move into home of mother's parents where mother's brother with alleged mental condition also resided -- Mother alleged that brother had no criminal history and mother offered to have brother submit letter from treating physician -- Ruling was required regarding interim custody -- Mother was awarded interim sole custody of child restricted to matrimonial home pending court's review of information related to mother's brother -- Mother had de facto custody of child since separation, was child's primary caregiver from birth and father did not object to custody order -- Under circumstances, prudence required further information on brother's condition berfore permitting move with child to home of mother's parents. Ma v. Tu J.) [Ontario] (2010), 2010 ONSC 2064, 2010 CarswellOnt 2173, Spies J. (Ont. S.C. FAM.IX.5.a.ii Classification Number: IX.5.a.ii Custody and access -- Variation of custody order -- Factors to be considered -- Miscellaneous factors Best interest of children -- Parties married and had three children, who were five, eight and ten years old at time of motion at bar -- Parties separated and children remained with mother -- Father obtained order prohibiting mother from leaving children unattended at home and from bringing male companions into home (existing order) -- Mother breached existing order by going out to pick up babysitter and having male companion sleep at home -- Father sought to have primary parenting responsibilities transferred to him -- Father brought motion to vary existing order -- Motion dismissed -- Custody and access assessment was file:///y /Corporate%20Marketing/public/Legal%20...%20Files/ /CanAbr-Family(Ont) htm (8 of 10) [8/30/2010 1:20:46 PM]

9 ordered -- There was no urgent need to transfer primary parenting responsibilities -- It was uncertain whether children's best interests would be served by status quo or switch to primary responsibility for father -- Mother's breach of existing order was significant and required response, but was not, by itself, basis to change custody -- Factors on other side were that father had been convicted of domestic violence and was primary earner for family -- Dismissal of motion at bar was without prejudice to further motion on custody and access once assessment was completed -- Mother was held to be in contempt of court as result of her breach of existing order. Chin v. Chin Corbett J. (Ont. S.C.J.) [Ontario] (2010), 2010 ONSC 2286, 2010 CarswellOnt 2292, D.L. FAM.IX.8.c.ii Classification Number: IX.8.c.ii Custody and access -- Access -- Variation of order -- Temporary variation Mother and father had two children -- One child complained to police about mother -- Mother was removed from home and charged with offence -- Mother remained separated from father and was granted supervised access on consent -- Mother was acquitted based on finding that child had been coerced by father into making false allegations against mother -- Father was granted sole custody with mother having limited access after father filed consent with allegedly forged signature -- Mother commenced application for order setting aside consent order and matter proceeded to case conference -- Parties consented to setting aside consent order and requesting involvement of Officer of Children's Lawyer -- Pending proper custody hearing, father was granted continuing custody while mother was granted increased access -- Interim orders were permitted at case conference pursuant to R. 17(8)(b) of Family Law Rules if parties had prior notice -- Father had prior notice that mother was seeking either custody or increased access -- To date, father's response had been to shelter behind ex parte consent order that might well have been obtained through forgery -- There was no need to limit mother's time with children -- Maintaining status quo would not have been in children's best interests -- Maintaining status quo would have brought administration of justice into disrepute. Chand v. Chand (2010), 2010 CarswellOnt 1638, 2010 ONSC 1599, H. McGee J. (Ont. S.C.J.) [Ontario] FAM.XX.1.a Classification Number: XX.1.a Costs -- In family law proceedings generally -- General principles Parties lived together for two years, married in 1996, had three children and separated in Mother brought interim motion for spousal and child support, and other relief -- Father brought cross-motion for adjournment of mother's motion -- Father offered to pay $200,000 in addition to mortgage, property taxes, file:///y /Corporate%20Marketing/public/Legal%20...%20Files/ /CanAbr-Family(Ont) htm (9 of 10) [8/30/2010 1:20:46 PM]

10 and extraordinary expenses -- Mother's motion would not be heard for six months -- Mother applied for interim, interim support -- Application granted -- Father was ordered to pay $200,000 spousal and child support as offered, and s. 7 expenses under Federal Child Support Guidelines -- Both parties sought costs -- Costs awarded -- Mother was awarded costs for attendance at motion -- Matter was important to parties and issues were complex -- Success was divided between parties -- Father's offer made during day of hearing was of little importance. Moorthy v. Haefele (2010), 2010 CarswellOnt 1876, 2010 ONSC 1917, Ricchetti J. (Ont. S.C.J.); additional reasons to (2010), 2010 CarswellOnt 848, 2010 ONSC 1109, Ricchetti J. (Ont. S.C.J.) [Ontario] file:///y /Corporate%20Marketing/public/Legal%2...20Files/ /CanAbr-Family(Ont) htm (10 of 10) [8/30/2010 1:20:46 PM]