|
Family - Support
MORE CASES
Part 2
. Abdelsamie v. Farid
In Abdelsamie v. Farid (Div Court, 2023) the Divisional Court considered the duration of a spousal support order:The Trial Judge Erred in Law by Not Adequately considering the Duration of Spousal Support
38. The trial judge gave no reasons for limiting the duration of spousal support to 19 months in the face of a SSAG calculation that provided for 8.5 to 17 years of duration.
39. The core concept upon which the SSAGs are built is income sharing, and the SSAGs equally apply to compensatory and needs-based (non-compensatory) support claims. Quantum and duration are interrelated parts of the formula because the end of entitlement for spousal support is the end of duration: see Fisher v. Fisher, 2008 ONCA 11 (C.A.) at para. 97.
40. The objectives for needs-based spousal support are outlined in Bracklow v. Bracklow 1999 CanLII 715 (SCC), [1999] 1 SCR 420 (S.C.C.) at paras. 23, 30 and 46. One of the purposes of needs-based support is to relieve financial hardship, while another purpose is grounded in the “social obligation model” of marriage, in which marriage is seen as an interdependent union. It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on their former partner.
41. As is often stated, “need” and the ability to be self-sufficient is relative. It is not measured solely by ensuring a subsistence existence, but rather, it should be assessed through the lens of viewing marriage as an economic partnership: see Marinangeli v. Marinangeli, 2003 CanLII 27673 (ON CA), 2003 CarswellOnt 2691 (C.A.) at para. 74.
42. Although not binding, the SSAG must not be lightly departed from. When a trial judge decides to award a quantum or duration of spousal support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the SSAG range or duration does not provide an appropriate result: see Fisher at para. 43-48.
43. Here, there is no basis for appellate review of the 19-month duration or why the trial judge departed from the suggested range of 8.5 to 17 years. In the absence of any reasons for departure, the period of duration must be set aside. It was an error in law to depart from the SSAG on duration without providing compelling reasons as to how spousal support for a period of 19 months achieves the objectives of compensatory, or non-compensatory spousal support following a 17-year marriage in which the parties moved three times, requalified in a foreign jurisdiction (and language) and in which the Appellant had primary care of one child for four years post separation. . Abdelsamie v. Farid
In Abdelsamie v. Farid (Div Court, 2023) the Divisional Court considered an issue of 'compensatory' spousal support, here under the Divorce Act:The Trial Judge Erred in Law by Dismissing the Appellant’s Claim for Compensatory Spousal Support
26. Subsections 15.2(4) and 15.2(6) of the Divorce Act set out the factors and objectives that the Court is to consider when considering support claims. Relevant to this appeal, those factors and objections include “recogniz[ing] any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown”, "apportion[ing] between the spouses any financial consequences arising from the care of any child", and "reliev[ing] any economic hardship…arising from the breakdown of the marriage".
27. In Moge v. Moge, 1992 CanLII 25 (SCC), 1992 CarswellMan 143 (S.C.C.) at paras. 44, 48, 53-55, 70-72, 74-75, 78, 80, 85, and 110, and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), 1999 CarswellBC 532 (S.C.C.) at paras. 34-37, the Supreme Court of Canada confirmed that "no single [spousal support] objective is paramount; all must be borne in mind." The Courts have also set out a series of principles that must be considered whenever a court is dealing with a claim for spousal support under the Divorce Act. These principles include “a fair and equitable distribution of resources to alleviate the economic consequences of marriage or marriage breakdown for both spouses, regardless of gender.”
28. Here, the parties were married for 17 years, had two children, and operated as an economic partnership, making joint education, career, and international immigration decisions. At the time of separation, the Appellant was 46 years old and was not earning any income despite having previously earned a significant income in Saudi Arabia. At the time of trial he was earning only $41,874 per year. Prior to her acceptance of an employment position with base pay of $116,000, the Respondent had been earning in excess of $200,000 per year.
29. The Trial Judge found that "the parties both agreed to raise their family in Canada making many important decisions and personal sacrifices in furtherance of this plan." Notwithstanding this finding, the trial judge dismissed the claim for compensatory spousal support because (a) at the time of the marriage, both parties were employed on a full-time basis earning similar incomes, (b) the Appellant did not meaningfully contribute to the Respondent’s MBA and there is no evidence that her degree impacted appreciably on her career or that any contributions he did make diminished his earning capacity, (c) although the Appellant was out of the workforce for a number of years, he used this time to further his education and did not primarily care for the children or perform household tasks beyond grocery shopping, (d) the Respondent did not demand that the Appellant leave his job in Saudi Arabia and join her in Canada, and (e) the trial judge did not accept the Appellant’s evidence as to why he was unable to find employment or did not complete the required third level of his CPA course of study.
30. The reasons given at (a) to (d) are not a sufficient basis in law to dismiss a claim for compensatory support because they inform the narrative of the relationship, not the economic consequences to the spouses upon its dissolution. The reasons do not consider the overall objectives of an award for spousal support or the compensatory basis for spousal support that is incorporated within the SSAG “with child support” formula, as explained in chapter eight of the SSAG Revised User Guide.
31. As Justice McLachlin (as she then was) specifically explained in her concurring reasons in Moge at paragraph 119,A formalistic view of causation can work injustice in the context of s. [15.2(6) and] 17(7) [of the Divorce Act], as elsewhere. The question under [s. 15.2(6)(a) and] s. 17(7)(a) is whether a party was disadvantaged or gained advantages from the marriage, as a matter of fact; under [s. 15.2(6)(c) and] s.17(7)(c) whether the marriage breakdown in fact led to economic hardship for one of the spouses. Hypothetical arguments after the fact about different choices people could have made which might have produced different results are irrelevant unless the parties acted unreasonably or unfairly. In this case, for example, Mrs. Moge in keeping with the prevailing social expectation of the times, accepted primary responsibility for the home and the children and confined her extra activities to supplementing the family income rather than to getting a better education or to furthering her career. That was the actual domestic arrangement which prevailed. What Mrs. Moge might have done in a different arrangement with different social and domestic expectations is irrelevant. 32. The trial judge may have been led into error by the Respondent’s focus on the parties’ choices during the marriage, specifically, whether the Appellant should bear the consequences of having chosen to immigrate to Canada.
33. A claim for spousal support is not a claim in tort. Using a “but for” analysis to assess compensatory support claims is inconsistent with the Supreme Court’s determination in Moge that, when dealing with spousal support claims, the court must consider what actually happened in the relationship, and not what might have happened had the spouses made different choices.
34. The goal of compensatory support is to ensure that the post separation economic consequences of the roles adopted by spouses during a relationship are not disproportionately borne by one spouse alone, but instead, are shared equitably.
35. Nor is reason (e) – alone or balanced with the other reasons – a sufficient basis to dismiss a claim for compensatory support. The remedy for not accepting the Appellant’s explanations as to why he was unemployed or had not completed his CFA designation is to impute his income for support purposes in the same manner as income is imputed for child support purposes under s. 19(1)(a) of the Federal Child Support Guidelines: see Perino v. Perino 2007 CanLII 46919 (ON SC), [2007] O.J. No. 4298 (SCJ). That is, the remedy is to impute income to the Appellant on a finding that he was intentionally unemployed, or underemployed.
36. The error in dismissing the claim for compensatory spousal support resulted in the SSAG range not reflecting the Respondent’s post separation increases in income. Instead of using the findings of the Respondent’s income from 2017 to 2022, the trial judge used only the Respondent’s 2016 income of $83,000 and the Appellant’s imputed income of $25,000.
37. The error was then compounded by the limited duration of support. The result was that the Appellant, with one child in his primary care from 2017 to 2021, received only set off child support and no spousal support to balance the parents’ net disposable incomes. . Abdelsamie v. Farid
In Abdelsamie v. Farid (Div Court, 2023) the Divisional Court considered the appellate SOR for support orders:25. Considerable deference is owed to a first instance decision on support: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518. As set out in paragraph 12 of Hickey, the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. Orders should not be overturned unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong. . K.K. v. M.M.
In K.K. v. M.M. (Ont CA, 2023) the Court of Appeal considered the SOR for a support order appeal:[3] The standard of review for family support decisions is significant deference. An appellate court should only intervene where there is a material error, a serious misapprehension of the evidence, or an error in law. This court is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at para. 12. This is what we are being asked to do by the appellant. We have been pointed to no reversible legal error and no overriding palpable factual error with respect to the reasoning or the result reached by the trial judge. . Strutzenberger v. Strutzenberger
In Strutzenberger v. Strutzenberger (Ont CA, 2023) the Court of Appeal considered (and dismissed) an appeal of a 2023 lower court order that allowed an application to retroactively vary (by reduction) the arrears owing from a prior 2018 spousal support order. The appellant, despite benefitting from the variation, sought on appeal a further waiver of arrears existing at the date of the original 2018 order, arguing they were within the 2023 lower court's jurisdiction:[1] On application by the appellant, Pierce J. varied the spousal support order made by Newton J. in February 2018. She reduced the arrears owing from the years following the order of Newton J. The appellant appeals, arguing that Pierce J. erred in not also extinguishing the arrears that were owing at the time Newton J. made his order in 2018. The appellant further argues that Pierce J. should have set aside the cost order made by Newton J.
....
[5] The correctness of the order made by Newton J. in respect of arrears outstanding at the time of his order cannot be attacked by way of a subsequent motion to vary the order of Newton J.: Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, at pp. 687-88. The appropriate remedy was by way of appeal from the order of Newton J. In fact, the appellant did exactly that. He, however, chose to abandon that appeal. . Barn v. Dhillon
In Barn v. Dhillon (Ont CA, 2023) the Court of Appeal considered 'netting down' lump sum spousal support for income tax:[1] ... The appellant argues that the trial judge erred by: ... (4) imposing a lump sum award for retroactive spousal support without “netting down” the lump sum amount to reflect the benefit of the income tax deduction that the appellant would have enjoyed had he made the payments as periodic support payments under a court order.
....
[3] We also see no basis for interfering with the trial judge’s decision not to “net down” the lump sum retroactive support payment, or for finding fault with the fact that she did not address this issue in her decision. As this court held in Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65, at para. 54, judges are not required to make tax adjustments for retroactive spousal support awards. Judges cannot be expected to familiarize themselves with and consider of their own motion the tax implications of the support orders they make. A party that wishes to have the tax implications of a retroactive spousal support order considered should specifically request this before the trial judge and provide the guidance the trial judge needs to accomplish this. The appeal record before us does not demonstrate that this was done, which may well explain why this issue was not addressed by the trial judge.
[4] In any event, a trial judge’s decision whether to adjust a retroactive support order to reflect anticipated tax implications is a discretionary determination based on whether doing so is required to achieve a fair support award. We have been provided with no reason for interfering with the award that the trial judge made. There was ample reason on the record as to why a trial judge might choose not to reduce the retroactive lump sum support payment to account for tax benefits the appellant may have foregone. The appellant’s “income” was attributed to him because of non-disclosure after he claimed to have little or no meaningful taxable income during the relevant period. To provide a deduction from spousal support payments based on attributed income could well result in a windfall to the appellant. That is, on the appellant’s own evidence, he had no income in the relevant years and therefore paid no taxes. . Proctor v. Klammer
In Proctor v. Klammer (Div Court, 2023) the Divisional Court considers points of child support law:[10] Some cases suggest that when children leave to attend post-secondary institutions, a separate approach should be taken rather than applying a percentage of the table amount, such as only awarding support during summer months when students return home. However, it is also recognized that, in applying s. 3(2)(b) of the Guidelines, factors such as “the expenses associated with maintaining a home for children who live away” while attending university are relevant: Bodnar v. Blackman (2006), 2006 CanLII 31803 (ON CA), 82 O.R. (3d) 423 (C.A.), at para. 23. As was observed in Douglas v. Douglas, 2013 ONCJ 242, at para. 59:Most courts now find the guideline amount inappropriate when a child attends university out-of-town and only returns home during the summer and school breaks. Although each case must be examined on its own facts, most courts will order the full table amount in the months the child is living at home with a lesser amount when the child is away at school. [Citations omitted.] [11] The motions judge’s conclusion, therefore, that “some level of support is appropriate and required” is amply supported by the case law and the evidence: First Decision, at para. 25.
[12] Although the motions judge did not engage in a detailed review of the parties’ incomes over several years or of the specific costs associated with the Respondent maintaining a home for Alexandra, no such detailed analysis was conducted in other cases either. For example, in Douglas, the Court referred to cases (Albert v. Albert (2007), 2007 CanLII 29972 (ON SC), 40 R.F.L. (6th) 203 (Ont. S.C.), and Padua v. Gordon, 2008 ONCJ 421, 58 R.F.L. (6th) 226) in which amounts of $250 and $200 per month had been ordered while the child was away. In Douglas, $150 per month was ordered. In Coghill v. Coghill (2006), 2006 CanLII 28734 (ON SC), 30 R.F.L. (6th) 398 (Ont. S.C.), the amount ordered paid to the mother while the daughter was away attending school was $300, or just under 25 percent of the table amount of $1,254.
[13] In Park v. Thompson (2005), 2005 CanLII 14132 (ON CA), 77 O.R. (3d) 601 (C.A.), a judge had ordered full table amounts be paid even while the child was away at university, and had not considered s. 3(2) of the Guidelines. The Court of Appeal quoted with approval the statement by Heeney J. in Merritt v. Merritt, [1999] O.J. No. 1732 (S.C.), at para. 73, that it is “more appropriate to calculate the actual costs of providing for the needs of the child in his other residence, factoring in a contribution toward the cost of maintaining the family home to return to on weekends and school breaks where appropriate, and apportion that between the spouses on a Paras approach after considering the child's own ability to contribute” (emphasis added). . Jasiobedzki v. Jasiobedzka
In Jasiobedzki v. Jasiobedzka (Ont CA, 2023) the Court of Appeal considered the 'start date' of spousal support:[14] Although a retroactive support obligation ordinarily begins when formal notice of a spousal support claim has been provided (in this case, January 6, 2020), a trial judge may elect to calculate retroactive support from the date of effective notice where there is reason to do so: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 207-12; D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at paras. 5 and 121. ... . Jasiobedzki v. Jasiobedzka
In Jasiobedzki v. Jasiobedzka (Ont CA, 2023) the Court of Appeal considers whether retroactive spousal support is to be tax-adjusted:[18] The husband’s most trenchant complaint about the trial judge’s calculation of the retroactive support is that the trial judge awarded the wife the difference between the support he ought to have paid based on his gross income and the amounts the wife withdrew from a joint bank account over the relevant period. The latter amounts were taken from a bank account containing the husband’s after‑tax earnings. In his submissions, the husband emphasized that the trial judge compared apples to oranges by using a gross amount and a net amount in the same calculation. In his submission, the calculation ought either to have reduced the support owed by the amount of tax the wife would have paid at the time or increased the amounts she in fact received to reflect the benefit of having received them tax-free. I am not persuaded that this was a reversible error. In Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65, at para. 54, this court held that judges are not required to make provision for tax adjustments for retroactive spousal support awards. The decision whether to do so is discretionary based on whether a tax adjustment is required to achieve a fair support award. The trial judge explicitly considered the husband’s request to “gross up” the amount the wife received in lieu of support and intentionally chose not to do so. She also refrained from awarding pre-judgment interest, a decision which materially benefited the husband. The trial judge’s decision has not rendered the spousal award unfair. I see no basis for interfering with the decision of the trial judge. . Nairne v. Nairne
In Nairne v. Nairne (Ont CA, 2023) the Court of Appeal considered spousal support:[30] ... In determining entitlement to spousal support on the basis of compensation and need, the trial judge was required to step back and weigh the overall circumstances of the parties, rather than requiring, to the extent he may have done so, Ms. Nairne to prove in detail the role she played prior to the marriage breakdown and her financial needs after the breakdown: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at pp. 866-70; Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at para. 36.
[31] However, despite the issues that I have identified with the trial judge’s approach to assessing Ms. Nairne’s entitlement to spousal support, the trial judge did advert to all relevant circumstances, including those set out under s. 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and s. 33(8) of the Family Law Act, R.S.O. 1990, c. F.3. He determined that she was entitled to retroactive spousal support which was at around the mid-range of the Guidelines and accepted that she had some entitlement to spousal support until Mr. Nairne’s retirement. As reviewed above, looking at the award as a whole, the trial judge committed no error in principle in his award of spousal support, nor is his award clearly wrong. . Kim v. McIntosh
In Kim v. McIntosh (Ont CA, 2023) the Court of Appeal noted a child support order based on 'imputed income', where the court found that the payor was "intentionally unemployed":[19] Ms. Kim sought child support. The appellant had not paid any child support since the parties separated on August 9, 2019. The appellant claimed to be impecunious and unable to pay child support. Based on the evidence before her, Steele J. concluded that the appellant was intentionally unemployed. She accepted Ms. Kim’s sworn evidence that Mr. McIntosh had a number of university degrees and had held a number of positions over the years. He previously worked with the Australian Federal Police as a graduate program member in their information and technology department, in web design and as a mechanic. After referring to the obligation of all parents to support their children as set out in s. 31 of the Family Law Act, R.S.O. 1990, c. F.3, and s. 19(1)(a) the Child Support Guidelines, O. Reg. 391/97 (“CSGs”), as well as the test in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.) for imputing income, Steele J. imputed income to the appellant of $65,000. The appellant’s actual previous income had been considerably higher. Based on the presumptive amounts in the CSGs, Steele J. ordered retroactive child support at a rate of $500 per month, and ongoing child support in the amount of $732 per month. . Sutton v. Sutton
In Sutton v. Sutton (Ont CA, 2023) the Court of Appeal briefly cites a key Ontario statutory provision respecting support obligations:[24] As to conduct, the Family Law Act, R.S.O. 1990, c. F.3, s. 33(10) provides that:The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship. . Ballanger v. Ballanger
In Ballanger v. Ballanger (Ont CA, 2020) the Court of Appeal confirms that support orders are subject to high deference on appeal:[22] The Supreme Court of Canada has instructed courts of appeal to accord significant deference to the decisions of trial judges relating to support orders. The discretion involved in making a support order is best exercised by the judge who has heard the parties directly. The deferential standard of review avoids giving parties an incentive to appeal judgments to attempt to persuade the appeal court that the result should be different. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge.
[23] An appeal court can therefore only interfere with the trial judge’s decision if there is a material error such as a serious misapprehension of the evidence, or an error in law. It is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: see Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at paras. 11-12.
[24] In making a spousal support order, the Court may impute such income to a spouse as it considers appropriate in the circumstances, including where it appears that income has been diverted that would affect the level of child support, where the spouse has failed to provide income information when under a legal obligation to do so, and/or where the spouse unreasonably deducts expenses from income: Spousal Support Advisory Guidelines, Section 19(1) (d), (f), (g).
[25] In so doing, the amount selected must be grounded in the evidence. When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances: Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.), Tab 5, paras 44 and 45.[26] The Supreme Court confirmed that the court retains jurisdiction to retroactively vary a child support order after the child no longer qualifies as a “child of the marriage”: Michel v. Graydon, 2020 SCC 24.
|
