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Family - Child Support. Amid v. Jones
In Amid v. Jones (Ont CA, 2024) the Ontario Court of Appeal dismissed a family law appeal addressing child support, including retroactive child support:[15] Under s. 31(1) of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”), parents have an obligation to support their children. Section 33 of the FLA provides the court with jurisdiction to make orders requiring parents to provide support in accordance with the Child Support Guidelines, O. Reg 391/97 (the “Guidelines”). Section 34 of the FLA provides the court with the authority to make various kinds of orders in relation to support.
[16] Income tax returns are a starting point for determining a parent’s annual income, but the court may impute additional income. Section 23 of the Guidelines permits the court to draw an adverse inference against and impute income to a party who fails to comply with their disclosure obligations.
[17] Section 19 of the Guidelines sets out a non-exhaustive list of circumstances under which the court may impute additional income to the payor. These include circumstances in which income has been diverted that would affect the level of child support or where the payor failed to provide legally required income information: ss. 19(1)(d) and (f).
[18] The trial judge appropriately referred to Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 44, for the proposition that a court cannot select an arbitrary figure as imputed income. She also cited this court’s decision in Bak v. Dobell, 2007 ONCA 304, 86 O.R. (3d) 196, at para. 36, in which Lang J.A. for the court held that:When considering whether a circumstance is an appropriate one in which to impute income, a court will bear in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution. The trial judge noted that gifts are not included in income imputation as a matter of course but may be included in certain circumstances. She imputed income to the father based on “both the adverse inference to be drawn from the repeated non-compliance with court ordered disclosure of centrally important documents, and the gift analysis”.
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(b) Ordering Support Retroactive to the Child’s Birth
[34] Retroactive awards of child support “cannot simply be regarded as exceptional orders to be made in exceptional circumstances” and “while the propriety of a retroactive award should not be presumed, it will not only be found in rare cases”: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 5.
[35] As noted by the trial judge, in considering whether to order retroactive child support, “[u]nreasonable delay by the recipient parent in seeking an increase in support will militate against a retroactive award, while blameworthy conduct by the payor parent will have the opposite effect”: D.B.S., at para. 5.
[36] The trial judge noted that the court must also consider the needs and circumstances of the child, and the hardship to the payor of a retroactive award. She stated that retroactive child support must not amount to a wealth transfer, citing Walsh v. Walsh (2004), 2004 CanLII 36110 (ON CA), 69 O.R. (3d) 577 (C.A.), at para. 16. The trial judge, citing Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, at para. 41, stated, “Child support is, of course, the right of a child and is an obligation that exists regardless of the commencement of any proceedings to enforce it.” . LeGrand v. LeGrand
In LeGrand v. LeGrand (Div Court, 2023) the Divisional Court explains why it allows an appeal for contempt sanctions, here addressing the role of suspending child support as such sanction:[48] While appreciating the sentencing challenges facing the motions judge, I conclude that the current sanctions cannot stand for two reasons. First, it was an error in principle to suspend child support as a contempt sanction. Second, it was an error in principle to set an unbounded sanction. A contempt sanction fashioned as a penalty or a fine must be an amount that can be discharged. Each of the two sanctions is set aside.
Suspending Ongoing Child Support is Not an Available Contempt Sanction
[49] Rule 31(5) of the Family Law Rules provides that a court may order a person found in contempt to (a) be imprisoned for any period and on any conditions that are just, (b) pay a fine in any amount that is appropriate, (c) pay an amount to a party as a penalty, (d) do anything else that the court decides is appropriate, (e) not do what the court forbids, (f) pay costs in an amount decided by the court; and (g) obey any other order.
[50] Subsection 31(5)(d) confers a broad discretion on the court to fashion an appropriate contempt sanction; but that discretion is not unbounded. When fashioning a contempt sanction in parenting cases, the court must also consider the impact of the sanction on the best interests of the children.
[51] Traditionally, courts have drawn a “bright white line” around ongoing child support, considering it the right of the child, and thus unaffected by any outstanding debts between the parties. For example, it has long been held that the conduct of a custodial (decision making) parent, or a parent exercising parenting time is not relevant to the determination of child support. Court of Appeal Justice Frederick G. MacKay wrote in Carwick v. Carwick (1972), 1972 CanLII 1875 (ON CA) that “[r]eprehensible conduct by the custodial parent of a child respecting access may be the subject matter of removing the child from the custody of the offending parent, but it cannot be the basis of causing the child to suffer financially because of the interference of access rights by the custodial parent.”
[52] In reviewing the history of child support pre-dating both federal and provincial guidelines, the Supreme Court observed in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, that child support is the right of the child, stating at para 14 that a parents’ obligation to support their child is a legal right that exists independently of any court action taken.
[53] That “bright white line” has dimmed over time with respect to child support arrears, which in some cases have been used to offset a debt between the parties, such as an award of costs: S. v. A., 2023 ONSC 4719. In M.A.B. v. M.G.C., 2023 ONSC 3748, Justice Chappel summarized the law respecting the set-off of child support as against costs between the parties, concluding at para 86 that “ [t]he determination of whether it is appropriate to set off costs against child support arrears or an ongoing child support obligation is ultimately a matter of judicial discretion that involves a careful consideration of the facts of each case, and a delicate balancing the interests of the parties involved, the best interests of any children in the support recipient’s care, all of the objectives of costs awards and the importance of ensuring that costs awards are in fact paid.”
[54] In Rego v. Santos, 2015 ONCA 540 (C.A.) which builds on the reasoning in D.B.S. v S.R.G, the Ontario Court of Appeal upheld a set-off of child support arrears against a penalty ordered as a contempt sanction, owed by a mother to the father. The court acknowledged that, although it was unusual to do so, they were prepared to uphold the motion’s judge decision because he considered the evidence as a whole: including the amount of parenting time that had been withheld, the mother’s unreasonable litigation behaviour and the need to treat the breaches seriously, while keeping the children’s bests interests foremost in the analysis. At paragraph 14 the court found that the motion judge “was sensitive to the concern that the child should not suffer undue economic consequences and he structured the set-off accordingly,” see paragraph 14.
[55] The “bright white line” has not been dimmed with respect to ongoing child support. Ongoing child support is not a fixed debt between the parties that can be measured. It is a dynamic amount that is based on the payor parent’s income in real time. Ongoing child support and section 7 obligations change as the parents’ incomes change.
[56] It is not in a child’s best interests to lose their independent right to ongoing support from a parent within a court sanction purposed to coerce their parent’s compliance with a past court Order, or a court sanction fashioned to deter and denounce a parent’s wrongful behaviour for two reasons.
[57] First, as set out in D.B.S. supra, the child’s legal right to financial provision exists independently of any court action taken between their parents, or guardians, or a child protection society. It is a right that can be asserted by the child herself.
[58] Second, the purposes of child support and a contempt sanction are incompatible. As set out in the objectives of the Federal Child Support Guidelines the purposes of table child support are to (a) establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; (b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (d) to ensure consistent treatment of spouses and children who are in similar circumstances.
[59] A contempt sanction is a penalty imposed in response to a finding that a party has deliberately disobeyed or disrespected a court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the court. As summarized in Kronberger v. Kudrocova, 2023 ONSC 2326, at paras. 44-49, the applicable sentencing principles for contempt of court in the context of family law proceedings include:Sentencing should be restorative to the victim and punitive to the contemnor. To accomplish the former requires that the sentence correlate to the conduct that produced the contempt and to accomplish the latter requires the sentence not to reflect a marked departure from those imposed in like circumstances: Cassidy v. Cassidy, 2010 ONSC 2707, 85 R.F.L. (6th) 148, at para. 10 [Cassidy].
The primary objective in sentencing civil contempt is to coerce the offender into obeying the court judgment or order: Cassidy, at para. 12; Kopaniak v. MacLellan, 2002 CarswellOnt 1309, [2002] 212 D.L.R. (4th) 309, (O.C.A.) at para. 28, citing Nigel Lowe and Brenda Sufrin, Borrie and Lowe on the Law of Contempt, 3rd ed. (1996) at pp. 655-56, and Jeffrey Miller, The Law of Contempt in Canada (1997) at pp. 13 - 17.
Punishment must be in proportion to the breach or breaches of the order. The court must consider aggravating or mitigating factors: Carroll v. Richardson, 2013 NSSC 187, 331 N.S.R. (2d) 129, at para. 20 [Carroll].
Deterrence and denunciation are also important objectives of sentencing: Carroll, at para. 21. The purpose of penalties is not to compensate the wronged party, per se. It is to punish the wrongdoer: Roby v. Roby, 2003 CanLII 2111 (ON SC), [2003] 48 R.F.L. (5th) 389, at para. 30 [Roby]. [60] Even when the sanction to be determined concerns access to children, the paramount consideration remains the best interests of the children: see Moncur v. Plante, 2021 ONCA 462, at para. 10, Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at para. 19 and Valoris pour enfants et adultes de Prescott-Russell c. R. (R.), 2021 ONCA 366, at para. 27.
[61] Here, there was no consideration of the children’s best interests in suspending the mother’s obligation for child support, nor was there an adequate record on which to attempt such an analysis. The July 3, 2019 final Order was resolved on 2018 disclosed and imputed income. There was no evidence before the motion judge as to the parents’ current incomes.
[62] In summary, while it was open to the motion judge to fix a penalty with a view to the financial circumstances of the parties, it was not open to her to make a potentially indefinite order suspending the mother’s ongoing obligation for child support.
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[65] The amount of a penalty or a fine payable imposed pursuant to Rule 31 (b) and (c) of the Rules can be substantial, provided that it is reasonable and proportionate to the nature of the contempt and its mitigating and aggravating circumstances.
[66] At the same time, it must not markedly deviate from a sanction imposed in like circumstances, see Stone v. Stone, 2019 ONSC 3214. In Cassidy v. Cassidy, 2010 ONSC 2707, starting at para. 13, the court sets out the principles of sentencing in on a finding of civil contempt in a family law proceeding as a consideration of (a) the available sentences, (b) the proportionality of the sentence to the wrongdoing, (c) the similarity of sentences in like circumstance, (d) the presence of mitigating factors, (e) the presence of aggravating factors, (f) deterrence, (g) the reasonableness of a fine, and (h) the reasonableness of a proposed period of incarceration.
[67] The Ontario Court of Appeal has since emphasized the additional principle of restraint in sentencing, see Gagnon v. Martyniuk, 2020 ONCA 708, at para. 25, and that judicial discretion in sentencing be informed by the best interests of the child(ren): Moncur v. Plante, supra, at para. 10, Valoris pour enfants et adultes de Prescott-Russell c. R. (R.), supra, at para. 27; Chong v. Donnelly, supra, at para. 11; and Ruffolo v. David, supra, at para. 19.
[68] The effect of the second term of the motion judge’s contempt sanction – that the father is precluded from bringing a further proceeding before the court while he remains non-compliant – created a sanction that was unbounded.
[69] An unbounded contempt sanction is an error in principle when the effect is to create a penalty or a fine that can never be discharged. Moreover, it renders the sanction unmeasurable and immune from an analysis of proportionality.
[70] This is not to say that a coercive penalty cannot accrue over time. The motion judge imposed such a remedy initially ($1,000 per month, to a total of $12,000). That order was not appealed, and it does not disclose an error in principle. See, for example, King v. Cameron, 2020 ONCJ 548, where Parent J. ordered graduated access with a fine against the mother of $500 for every missed visit during a specified period of adjournment.
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