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Premi v. Khodeir 249

[Indexed as: Premi v. Khodeir]

Nora Jane Premi (Applicant / Respondent on Appeal) andLucien Roger Khodeir (Respondent / Appellant)

Ontario Court of Appeal

Docket: CA C51710

2010 ONCA 721

Simmons, Gillese, Karakatsanis JJ.A.

Heard: October 22, 2010

Judgment: October 22, 2010*

Civil practice and procedure –––– Judgments and orders — Amending orvarying — After judgment entered — Error or inadvertence –––– Partiesmarried in 1990, had two children, separated in 1999, and divorced in 2004 —Father ceased making payments agreed to in separation agreement and was or-dered to pay 40 per cent of extraordinary expenses and $823 monthly child sup-port based on annual income of $60,000 — In July 2009, trial judge issued writ-ten reasons reducing father’s child support obligations to $753 per month basedon imputed annual income of $50,000 — Father wrote trial judge asking thatcertain typographical errors in ruling be amended — On mistaken belief pur-ported errors were canvassed with mother’s counsel, trial judge issued adden-dum to ruling, making four changes, including replacing “applicant” in line 1 ofparagraph 53 with “respondent”, replacing “May 1, 2006” in paragraph 172 with“January 1, 2003”, “May 1, 2006” in paragraph 176 with “January 1, 2004” —In reply to father’s costs submissions, mother raised objection to addendum asrepresenting substantive change to ruling — Parties were invited to make sub-missions as to addendum and mother’s counsel pointed out that first amendment,contrary to trial judge’s intention, made order retroactive to 2004 — Trial judgeproposed making changes to addendum and father brought motion objecting tochange on basis trial judge was functus or was not impartial, having read parties’submissions on costs, or that father was prejudiced by delay in having matterfinally resolved — Motion was dismissed — Father appealed — Appeal dis-missed — No basis for claims that trial judge was biased as result of readingcosts submissions or that father was prejudiced in any way — Court also re-jected father’s submission that trial judge lacked jurisdiction to address costs —Delay in addressing question of costs did not deprive motion judge ofjurisdiction.

*Leave to appeal refused at Premi v. Khodeir (2011), (sub nom. Premi v.Khoder) 418 N.R. 400 (note), 2011 CarswellOnt 1714, 2011 CarswellOnt 1715(S.C.C.).

REPORTS OF FAMILY LAW 5 R.F.L. (7th)250

Civil practice and procedure –––– Judgments and orders — Amending orvarying — Effect of delay –––– Parties married in 1990, had two children, sepa-rated in 1999, and divorced in 2004 — Father ceased making payments agreedto in separation agreement and was ordered to pay 40 per cent of extraordinaryexpenses and $823 monthly child support based on annual income of $60,000 —In July 2009, trial judge issued written reasons reducing father’s child supportobligations to $753 per month based on imputed annual income of $50,000 —Father wrote trial judge asking that certain typographical errors in ruling beamended — On mistaken belief purported errors were canvassed with mother’scounsel, trial judge issued addendum to ruling, making four changes, includingreplacing “applicant” in line 1 of paragraph 53 with “respondent”, replacing“May 1, 2006” in paragraph 172 with “January 1, 2003”, “May 1, 2006” in para-graph 176 with “January 1, 2004” — In reply to father’s costs submissions,mother raised objection to addendum as representing substantive change to rul-ing — Parties were invited to make submissions as to addendum and mother’scounsel pointed out that first amendment, contrary to trial judge’s intention,made order retroactive to 2004 — Trial judge proposed making changes to ad-dendum and father brought motion objecting to change on basis trial judge wasfunctus or was not impartial, having read parties’ submissions on costs, or thatfather was prejudiced by delay in having matter finally resolved — Motion wasdismissed — Father appealed — Appeal dismissed — No basis for claims thattrial judge was biased as result of reading costs submissions or that father wasprejudiced in any way — Court also rejected father’s submission that trial judgelacked jurisdiction to address costs — Delay in addressing question of costs didnot deprive motion judge of jurisdiction.

Judges and courts –––– Appointment, removal, disqualification and disci-pline of judges and other court officers — Disqualification for bias — In-volvement with prior or other proceedings –––– Parties married in 1990, hadtwo children, separated in 1999, and divorced in 2004 — Father ceased makingpayments agreed to in separation agreement and was ordered to pay 40 per centof extraordinary expenses and $823 monthly child support based on annual in-come of $60,000 — In July 2009, trial judge issued written reasons reducingfather’s child support obligations to $753 per month based on imputed annualincome of $50,000 — Father wrote trial judge asking that certain typographicalerrors in ruling be amended — On mistaken belief purported errors were can-vassed with mother’s counsel, trial judge issued addendum to ruling, makingfour changes, including replacing “applicant” in line 1 of paragraph 53 with “re-spondent”, replacing “May 1, 2006” in paragraph 172 with “January 1, 2003”,“May 1, 2006” in paragraph 176 with “January 1, 2004” — In reply to father’scosts submissions, mother raised objection to addendum as representing substan-tive change to ruling — Parties were invited to make submissions as to adden-dum and mother’s counsel pointed out that first amendment, contrary to trialjudge’s intention, made order retroactive to 2004 — Trial judge proposed mak-

Premi v. Khodeir 251

ing changes to addendum and father brought motion objecting to change on ba-sis trial judge was functus or was not impartial, having read parties’ submissionson costs, or that father was prejudiced by delay in having matter finally re-solved — Motion was dismissed — Father appealed — Appeal dismissed — Nobasis for claims that trial judge was biased as result of reading costs submissionsor that father was prejudiced in any way — Court also rejected father’s submis-sion that trial judge lacked jurisdiction to address costs — Delay in addressingquestion of costs did not deprive motion judge of jurisdiction.

Family law –––– Support — Child support under federal and provincialguidelines — Practice and procedure — Jurisdiction of courts –––– Partiesmarried in 1990, had two children, separated in 1999, and divorced in 2004 —Father ceased making payments agreed to in separation agreement and was or-dered to pay 40 per cent of extraordinary expenses and $823 monthly child sup-port based on annual income of $60,000 — In July 2009, trial judge issued writ-ten reasons reducing father’s child support obligations to $753 per month basedon imputed annual income of $50,000 — Father wrote trial judge asking thatcertain typographical errors in ruling be amended — On mistaken belief pur-ported errors were canvassed with mother’s counsel, trial judge issued adden-dum to ruling, making four changes, including replacing “applicant” in line 1 ofparagraph 53 with “respondent”, replacing “May 1, 2006” in paragraph 172 with“January 1, 2003”, “May 1, 2006” in paragraph 176 with “January 1, 2004” —In reply to father’s costs submissions, mother raised objection to addendum asrepresenting substantive change to ruling — Parties were invited to make sub-missions as to addendum and mother’s counsel pointed out that first amendment,contrary to trial judge’s intention, made order retroactive to 2004 — Trial judgeproposed making changes to addendum and father brought motion objecting tochange on basis trial judge was functus or was not impartial, having read parties’submissions on costs, or that father was prejudiced by delay in having matterfinally resolved — Motion was dismissed — Father appealed — Appeal dis-missed — No basis for claims that trial judge was biased as result of readingcosts submissions or that father was prejudiced in any way — Court also re-jected father’s submission that trial judge lacked jurisdiction to address costs —Delay in addressing question of costs did not deprive motion judge ofjurisdiction.

APPEAL by father from judgment reported at Premi v. Khodeir (2010), 76R.F.L. (6th) 397, 2010 CarswellOnt 507, [2010] O.J. No. 370 (Ont. S.C.J.),which dismissed motion objecting to change on basis trial judge was functus orwas not impartial.

Lucien Roger Khodeir for himselfKathryn Junger for Respondent


Per curiam:

1 We reject the appellant’s submission that the motion judge lacked ju-risdiction to determine the issues at the January 22, 2010 hearing.

2 The formal order arising from the motion judge’s July 14, 2009 deci-sion had not been issued as of January 22, 2010. Accordingly, the trialjudge was not functus.

3 In his January 25, 2010 decision arising from the January 22, 2010hearing, the motion judge indicated he issued addendum #1 to his July14, 2009 decision in the mistaken belief that the parties had agreed uponan amendment. He also clarified specifically why he was satisfied that hehad not made a typographical error in his original decision.

4 Particularly in these circumstances, we see no basis for the appel-lant’s claims that the trial judge was biased as the result of reading thecosts submissions or that the appellant was prejudiced in any way.

5 We also reject the appellant’s submission that the trial judge lackedjurisdiction to address costs. The delay in addressing the question ofcosts did not deprive the motion judge of jurisdiction.

6 As for the merits of the costs issue, the motion judge gave thoroughreason for his costs award and we see no error in principle.

7 In the circumstances, the appeal from the January 25, 2010 order isdismissed and the appeal from the January 29, 2010 costs order is alsodismissed.

8 Costs of the appeal are to the respondent on a partial indemnity scalefixed in the amount of $5,000 inclusive of disbursements and applicabletaxes.

Appeal dismissed.

Greene v. Greene 253

[Indexed as: Greene v. Greene]

Kelly Greene (Respondent / Plaintiff) and Danielle Greene(Appellant / Defendant)

British Columbia Court of Appeal

Docket: Vancouver CA037912

2012 BCCA 43

Prowse, Neilson, Bennett JJ.A.

Heard: November 19, 2010

Judgment: January 27, 2012

Family law –––– Costs — In family law proceedings generally — Scale ofcosts –––– On appeal, amount of retroactive and ongoing child support payableby husband was increased, wife’s request for order under s. 92 of Family Rela-tions Act was dismissed, and issue of s. 7 extraordinary expenses was remittedback to trial court — Wife sought increased costs of her appeal pursuant to R.60(1) of Court of Appeal Rules — Wife was awarded costs at Scale 1 of Appen-dix B of Rules — Wife failed to establish that increased costs were justified —Husband’s actions in defending order under appeal did not justify order of in-creased costs — Although result wife achieved on appeal was more favourablethan monetary aspects of her offer to settle, her offer was not sufficiently clearor precise that husband’s failure to accept it justified order for increased costs —Offer contained alternative options for settlement, and left room for controversyas to amount of child support, inclusive of extraordinary expenses.

Cases considered by Prowse J.A.:

Doig v. Laurand Holdings Ltd. (2003), 2003 BCCA 487, 2003 CarswellBC2207, 186 B.C.A.C. 239, 306 W.A.C. 239, 36 C.P.C. (5th) 53, [2003] B.C.J.No. 2096 (B.C. C.A.) — distinguished

Lynn v. Pearson (1998), 5 C.C.L.I. (3d) 296, 115 B.C.A.C. 26, 189 W.A.C. 26,1998 CarswellBC 2378, 60 B.C.L.R. (3d) 25 (B.C. C.A.) — considered

Statutes considered:

Family Relations Act, R.S.B.C. 1996, c. 128s. 92 — referred to

Rules considered:

Court of Appeal Rules, B.C. Reg. 297/2001R. 60 — consideredR. 60(1)App. B, s. 2(2)(a) — referred to


Regulations considered:

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)Federal Child Support Guidelines, SOR/97-175

s. 7 — referred to

ADDITIONAL REASONS to judgment reported at Greene v. Greene (2010),[2011] 4 W.W.R. 44, 12 B.C.L.R. (5th) 330, 92 R.F.L. (6th) 52, 505 W.A.C.114, 298 B.C.A.C. 114, 2010 BCCA 595, 2010 CarswellBC 3532 (B.C. C.A.),regarding costs.

P.A. Dyck, for AppellantD. Gradley, for Respondent

Prowse J.A.:

1 This is an application by Ms. Hauptman (formerly Ms. Greene) forincreased costs of her appeal pursuant to Rule 60(1) of the Court of Ap-peal Rules (the “Rules”). Mr. Greene has not filed a response to thisapplication.

2 On December 29, 2010, this Court released reasons for judgment [re-ported at 92 R.F.L. (6th) 52] allowing Ms. Hauptman’s appeal, increas-ing the amount of retroactive support payable by Mr. Greene for the sup-port of the two children of the marriage, and increasing the amount ofongoing child support payable by Mr. Greene. The Court dismissed Ms.Hauptman’s appeal from that aspect of the order dismissing her claim foran order under s. 92 of the Family Relations Act, R.S.B.C. 1996, c. 128(requesting a monetary remedy for non-disclosure), and remitted the is-sue of s. 7 extraordinary expenses back to the trial court.

3 Rule 60, headed “Costs assessed as increased costs”, provides: (60)(1) If, because an offer to settle is made or for any other reason,the court or a justice determines that there would be an unjust resultif costs were assessed under Scales 1 to 3 of section 3(1) of Appen-dix B, the court or justice, at any time before the assessment has beencompleted, may order that costs be assessed as increased costs.

(2) If costs are ordered to be assessed as increased costs, the registrarmust fix the fees that would have been allowed if an order for specialcosts had been made under Rule 61(1), and must then allow 1/2 ofthose fees, or a higher or lower proportion as the court or justice mayorder.

Greene v. Greene Prowse J.A. 255

4 I note, parenthetically, that increased costs were abolished in the B.C.Supreme Court on July 1, 2002.

5 Ms. Hauptman’s submissions are brief. She submits that she shouldbe awarded increased costs for two reasons:

(1) Mr. Greene “took an unreasonable position which necessi-tated that the matter be litigated in order to obtain a fairoutcome for the Appellant and for the parties’ children”and,

(2) Ms. Hauptman made an offer to settle on terms that wereconsiderably less favourable to her than the judgment ofthis Court.

6 In fact, Ms. Hauptman made two offers to settle, approximately twoweeks apart, neither of which was accepted by Mr. Greene. I need onlyrefer to the offer dated November 3, 2010 since it superseded the firstoffer.

7 On appeal, Mr. Greene essentially relied on the correctness of the trialjudge’s decision. In my view, it was not unreasonable for him to do so.He was entitled to rely on the trial judgment as correct unless and until itwas overturned. Although Ms. Hauptman’s appeal was ultimately suc-cessful, I am not persuaded that Mr. Greene’s actions in defending theorder under appeal justify an order of increased costs.

8 I turn then to Ms. Hauptman’s submission that, because the result sheachieved in this Court with respect to retroactive and ongoing child sup-port was more favourable than the terms of her November 3rd offer,made approximately 21/2 weeks prior to the hearing of the appeal, sheshould receive increased costs. In that regard, she relies on the decisionof this Court in Doig v. Laurand Holdings Ltd., 2003 BCCA 487 (B.C.C.A.).

9 While I am satisfied that the result Ms. Hauptman achieved on appealwas more favourable than the monetary aspects of her offer to settle (theoffer also dealt with access), I am not satisfied that her offer was suffi-ciently clear or precise that Mr. Greene’s failure to accept it justifies anorder for increased costs. Without going into the details of the offer, itwas unusual in that it contained alternative proposals: either (1) Mr.Greene pay child support in an unspecified amount in accordance withterms which included s. 7 expenses, but excluded retroactive payments;or (2) Mr. Greene agree that the entire matter be remitted to the SupremeCourt for rehearing before a different judge.


10 Ms. Hauptman has not referred to any decision in which a court hasawarded increased costs (or double costs) where the offer contains alter-native options for settlement; nor am I aware of any. The option for re-litigating the entire matter is anomalous and impossible to quantify inrelation to the result Ms. Hauptman achieved on appeal. The offer alsoleaves room for controversy as to the amount of child support, inclusiveof s. 7 expenses. In that regard, the lack of full financial disclosure byMs. Hauptman made it impossible to determine the amount of s. 7 ex-penses payable by Mr. Greene, resulting in that issue being remitted tothe trial court.

11 The offer in Doig did not suffer from the uncertainties inherent in Ms.Hauptman’s offer. There, the Court found that the failure of the appellantto accept the respondent’s offer was a basis for awarding increased coststo the respondent. Another significant factor in the Court’s decision toaward increased costs in that case, however, was its view that thegrounds of appeal were “tenuous at best”. As earlier stated, that is not sowith respect to Mr. Greene’s arguments as respondent on this appeal.Thus, I do not find the Doig decision supports an award of increasedcosts in this case.

12 Aside from the existence of an offer to settle, the Court may also con-sider the discrepancy between the estimated amount of ordinary costsand the estimated amount of increased costs in determining whether therewould be an unjust result if increased costs were not awarded under Rule60. The absence of such information was held to be one of several factorsmilitating against an award of increased costs in Lynn v. Pearson (1998),60 B.C.L.R. (3d) 25 (B.C. C.A.). Here, Ms. Hauptman has not placedany such information before the Court.

13 In the result, I am not persuaded that there would be an unjust result ifMs. Hauptman was awarded costs of the appeal at Scale 1 of Appendix Bof the Rules. The onus is on the applicant to establish that increased costsare justified. I find that onus has not been met.

14 I would, therefore, award Ms. Hauptman costs at Scale 1 of AppendixB of the Rules, exclusive of her costs of this application.

Neilson J.A.:

I Agree

Greene v. Greene Bennett J.A. 257

Bennett J.A.:

I Agree

Order accordingly.


[Indexed as: Adams v. Adams]

Fatin Hassan Adams (Plaintiff) and Gareth Mark Adams(Defendant)

Alberta Court of Queen’s Bench

Docket: Calgary 4801-119740

2011 ABQB 306

M.C. Erb J.

Heard: March 14-18, 21-25, 28-29; April 8, 2011

Judgment: June 6, 2011*

Family law –––– Support — Spousal support under Divorce Act and provin-cial statutes — Entitlement — Economic disadvantage of marriage — Ad-vancement of partner’s career –––– Parties were married in 1997 and divorcedin 2006 — Parties had two children, one born in 1998 and second born in2000 — Mother was doctor and father was airline pilot — Father claimed enti-tlement to spousal support, as he stayed home much of time with children whilemother completed her studies and later worked — Father also claimed that hewas stalled in his career due to being unable to take advantage of career opportu-nities that would have forced family to move — Father sought equal parentingtime on alternate-week basis, while mother sought day-to-day care of childrenwith access to father on alternate weekends — Mother claimed retroactive andongoing support from father — Mother petitioned for relief — Father appliedfor spousal support — Mother’s petition granted; father’s application dis-missed — Father was not entitled to spousal support, as mother would haveachieved professional goals even without his support — Father did not provethat his career was held back by marriage — Father’s contribution to homemak-ing were minimal, as family employed nannies and father’s parenting skills werelimited.

Family law –––– Custody and access — Joint custody — Shared parent-ing –––– Parties were married in 1997 and divorced in 2006 — Parties had twochildren, one born in 1998 and second born in 2000 — Mother was doctor andfather was airline pilot — Father claimed entitlement to spousal support, as hestayed home much of time with children while mother completed her studies andlater worked — Father also claimed that he was stalled in his career due to beingunable to take advantage of career opportunities that would have forced family

*Additional reasons at Adams v. Adams (2011), 2011 CarswellAlta 2177, 2011ABQB 812, 5 R.F.L. (7th) 289 (Alta. Q.B.).

Adams v. Adams 259

to move — Father sought equal parenting time on alternate-week basis, whilemother sought day-to-day care of children with access to father on alternateweekends — Mother claimed retroactive and ongoing support from father —Mother petitioned for relief — Father applied for spousal support — Mother’spetition granted; father’s application dismissed — Parenting plan put in place bycourt favoured mother, as her contribution to children’s upbringing both finan-cially and in terms of care was greater than that of father — Mother was tospend 9 days out of 14 with children and have primary care and custody, whilefather was to spend 5 out of 14 days — Further alienating conduct from fatherwould result in reduction of parenting time.

Family law –––– Support — Child support under federal and provincialguidelines — Retroactive award — Ability to pay retroactive award ––––Parties were married in 1997 and divorced in 2006 — Parties had two children,one born in 1998 and second born in 2000 — Mother was doctor and father wasairline pilot — Father claimed entitlement to spousal support, as he stayed homemuch of time with children while mother completed her studies and laterworked — Father also claimed that he was stalled in his career due to beingunable to take advantage of career opportunities that would have forced familyto move — Father sought equal parenting time on alternate-week basis, whilemother sought day-to-day care of children with access to father on alternateweekends — Mother claimed retroactive and ongoing support from father —Mother petitioned for relief — Father applied for spousal support — Mother’spetition granted; father’s application dismissed — Father did not pay supportover 9-year period of separation, leaving expenses to mother — Mother was en-titled to ongoing and retroactive support but delayed in applying for this sup-port — Requiring father to pay full amount of retroactive support would causehardship and arrears were reduced to 3 years’ worth of support.

Family law –––– Division of family property — Factors affecting equal orunequal division — Multiple factors considered –––– Parties were married in1997 and divorced in 2006 — Parties had two children, one born in 1998 andsecond born in 2000 — Mother was doctor and father was airline pilot — Fatherclaimed entitlement to spousal support, as he stayed home much of time withchildren while mother completed her studies and later worked — Father alsoclaimed that he was stalled in his career due to being unable to take advantage ofcareer opportunities that would have forced family to move — Father soughtequal parenting time on alternate-week basis, while mother sought day-to-daycare of children with access to father on alternate weekends — Mother claimedretroactive and ongoing support from father — Mother petitioned for relief —Father applied for spousal support — Mother’s petition granted; father’s appli-cation dismissed — Father’s contribution to marriage both financially and interms of parenting were less than mother — Father did suffer some loss by beingunable to take desired positions, as well as making contribution to mother’s pro-


fessional corporation — Parties were entitled to half of property acquired duringmarriage — Mother was entitled to exempt professional corporation, post-sepa-ration home, investment assets and household effects from marital property.

Cases considered by M.C. Erb J.:

Hodgson v. Hodgson (2005), 13 R.F.L. (6th) 339, 361 A.R. 190, 339 W.A.C.190, 2005 ABCA 13, 2005 CarswellAlta 29, 248 D.L.R. (4th) 95, 40 Alta.L.R. (4th) 212, [2005] A.J. No. 22 (Alta. C.A.) — referred to

S. (D.B.) v. G. (S.R.) (2006), 61 Alta. L.R. (4th) 1, 31 R.F.L. (6th) 1, 391 A.R.297, 377 W.A.C. 297, 2006 SCC 37, 2006 CarswellAlta 976, 2006 Carswell-Alta 977, 351 N.R. 201, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297,[2006] 2 S.C.R. 231, [2006] S.C.J. No. 37 (S.C.C.) — referred to


Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)s. 15.1 [en. 1997, c. 1, s. 2] — considereds. 16(10) — considered

Matrimonial Property Act, R.S.A. 2000, c. M-8Generally — referred tos. 7(4) — considereds. 8 — considereds. 8(a) — considereds. 8(b) — considereds. 8(c) — considereds. 8(d) — considereds. 8(e) — considereds. 8(f) — considereds. 8(g) — considereds. 8(h) — considereds. 8(i) — considereds. 8(j) — considereds. 8(k) — considereds. 8(l) — considered



s. 3 — considereds. 7 — considered

PETITION by mother for relief, including child support, equalization of pro-perty, and parenting plan; APPLICATION by father for spousal support.

William T. Aaron, Q.C., for Plaintiff

Adams v. Adams M.C. Erb J. 261

Charles Ruff, for Defendant

M.C. Erb J.:

1 After meeting through the auspices of a matching agency, the partiesended a few months of dating by getting married on August 16, 1997, inAnapolis Royal, Nova Scotia. Within a year they were parents of adaughter, Nicole and within another two years, their son, Ryan arrivedcompleting the family circle. Nine years after they married, theydivorced.

2 The parties now seek to end years of protracted litigation with theresolution of the following outstanding issues arising from theirmarriage:

i. Date of Separation;

ii. Division of matrimonial property;

iii. Spousal support, entitlement and duration;

iv. Parenting, access and support;3 The Plaintiff is a medical specialist; the Defendant is a pilot with Air

Canada Jazz. Both parties now reside in Calgary. They were divorced inSeptember 2006, and the Defendant was remarried the following summerto a woman he was seeing during the marriage. The duration of theparty’s cohabitation was between 4 1/2 and 6 years depending on whetherthe view of the Plaintiff or Defendant is accepted. The Plaintiff was 35years old and the Defendant was 37 at the time of the marriage. They arepresently 49 and 51 years old respectively.

4 Twelve witnesses testified in these proceedings including the parties,a financial expert, Brenda Pask and the author of a court-ordered bilateralreport, Dr. Larry Fong. A letter in which a Halifax nanny responded toquestions was entered by agreement as evidence. All of the evidenceheard and read has been considered. However, in these reasons themountain of minutiae admitted will not be specifically referenced. Evi-dence referred to in the following narrative under the headings to whichit relates is specifically accepted.

Personal and Professional background of the Plaintiff5 The Plaintiff was born and raised in Iraq and after completing a medi-

cal degree, she quietly left the country during the Iraq-Iran conflict of the1980s. Other family members had already left the war-torn country and


the Plaintiff joined them in Jordan in 1985. The Plaintiff then moved onto the United Kingdom where she completed a degree in obstetrics andgynaecology at the University of London and a masters degree in phar-macology at the University of Liverpool while waiting for the govern-ment of Iraq to release her university transcripts which took until late1990. In January 1991, she followed her parents to Montreal where sheworked and studied until being accepted into Dalhousie University medi-cal school in Halifax in 1993. By 1995, she had requalified and had com-menced a residency program in internal medicine. She met and marriedthe Defendant in 1997 during the final year of her three-year residencyprogram. The Plaintiff then enrolled in a sub specialty in gastroenterol-ogy which she completed in 2000. This capped a long progression ofmedical studies and internships. She financed her education through parttime work and internship remuneration in the range of between $28,000and $43,000 per year prior to and during the marriage.

6 The Plaintiff comes from a family of academics and high achievers.Her father was a surgeon in Iraq and in Canada before retiring. Hermother, an obstetrician, died under mysterious circumstances during atrip to Egypt in 2001. The Plaintiff has a sister who is an obstetrician,another is a dentist and her brother, is a software engineer.

7 The Plaintiff joined the medical staff at Moncton Hospital in 2000and opened an office nearby. The Defendant assisted her during the firstthree months of her practice by setting up her billing and computer sys-tems and assisting in booking patients until she hired office staff. Sheoperated her practice through a New Brunswick professional corporation.

8 In 2002, the Plaintiff joined the staff of Rockyview Hospital in Cal-gary as a specialist in gastroenterology. Her New Brunswick practicewas wound up and she established a new professional corporation in Al-berta to run her practice here. She is presently a specialist in gastroenter-ology and remains affiliated with the Rockyview Hospital.

Personal and Professional background of the Defendant9 The Defendant grew up in British Columbia. His father, a Second

World War paratrooper met and married his mother in England. Theysettled in Powell River. He has an older sister and brother and oneyounger brother. He completed his grade 12 in 1977 and attended Malas-pina College in Nanaimo but left before graduating. He took up recrea-tional flying and earned his private pilot’s licence in 1983 followed byhis commercial licence in 1984. He worked as a flight instructor in Vic-


toria that year and also piloted charter flights. He then worked for oneyear flying turbo props with Bearskin Airlines in Ontario then joined AirAtlantic, an Air Canada regional carrier, in November 1988. Fourmonths, later he was upgraded to captain. In 1998, Air Atlantic went outof business but Inter Canadian Air picked up the routes and some of thepilots including the Defendant. He had a choice whether to serve as acaptain on one type of air craft or become a First Officer on an F-28 jet.He chose the first officer position to acquire jet experience to enhance hisqualifications. In late 1999, Inter Canadian also ceased operations andthe Defendant found himself unemployed. He drew Employment Insur-ance benefits while searching for a new opportunity. He considered anAir Transat posting out of Vancouver but concerned about the impact ofthe long commute on the marriage and his family life, he did not pursueit. He commenced work with Air Nova, an Air Canada affiliate shortlythereafter. In 2000, the Defendant moved with the Plaintiff to Monctonwhere she had acquired a position at the local hospital. He continued tofly with Air Nova although his remuneration had been drasticallyreduced.

10 When the Plaintiff acquired her position with Rockyview Hospital,the Defendant had an opportunity with WestJet which is based in Cal-gary. However, the Defendant elected not to pursue opportunities thereand continued on at Air Nova Halifax which had by this time morphedinto Air Canada Jazz. Some time in 2005, he moved to Calgary havingearned sufficient seniority to support the move with Jazz. He still holdsthe position of first officer.

11 Prior to his marriage to the Plaintiff in 1997, the Defendant had beeninvolved in a relationship with Sandy Verasamy of Miramichi, N.B. Thetwo became reacquainted in late 1999 and they were married in July2007 after the parties were divorced.

12 The Defendant has a son from a prior marriage presently 20 years ofage who is apparently on his own and self sufficient since the Defendantno longer has any support obligations for him.

Date of Separation13 The parties dispute the date of their separation. It is relevant in these

proceedings with respect to the division of Matrimonial property and it isone of the factors to be taken into account pursuant to the provisions ofthe Matrimonial Property Act, RSA 2000, chap. M-8.


14 It is the Plaintiff’s position that the parties separated on April 12,2002, when the Defendant acquired an ex parte order for care and controlof the children in Moncton when she was in Alberta making arrange-ments for the family’s move to Calgary. The Order was set aside a fewweeks later and the Plaintiff’s move to Calgary with the children wasapproved by the New Brunswick Court of Queen’s Bench.

15 The Defendant agrees that the parties separated in April 2002 butclaims that they reconciled in September and remained together untilApril 2004 when they finally separated. He points to the following evi-dence in support of his position: They took trips together as a family;occasionally resumed conjugal relations; the Plaintiff sent him endearingcards for his birthday and their anniversary; he received mail at the PointMackay home initially rented in Calgary and subsequently at the Garri-son Woods home which the Plaintiff purchased in 2003.

16 It was the evidence of the former Calgary live-in nanny Ms. Beltranthat the Defendant was not regularly in the home at Point Mackay or atGarrison Woods; he kept a few clothes in a drawer in the children’s roomduring his access visits. When he was in Calgary he slept in the chil-dren’s room and she was not aware of any occasion in which the partiesshared the Plaintiff’s bedroom although she agreed that this might haveoccurred without her knowledge. I accept Ms. Beltran’s evidence that theDefendant’s presence amounted to “two or three days every two or threeweeks or more” and when he arrived at the home, he rang the door belland she let him in. The Defendant’s own evidence on whether he evenhad a house key was ambiguous. In addition to the mail directed to thePlaintiff’s address in Calgary, the Defendant was also receiving mail atMs. Verasamy’s residence in Miramichi; at the Plaintiff’s father’s homein Halifax; at his mother’s address in Powell River and at his post officebox in Calgary.

17 While Counsel for the parties at trial spent considerable time on theinteractions between the parties between April 2002 and April 2004, thepleadings and documents marked as trial exhibits disclose perhaps betterthan anything else, the Defendant’s own view about the status of his mar-riage at the time. The Statement of Claim filed by the Plaintiff and theDefendant’s Statement of Defence and Counterclaim for Divorce and Di-vision of Matrimonial Property both state that the “parties ceased cohab-iting on April 12, 2002.” The Divorce Judgement was granted in 2006 onthe basis of that same date of separation. The Defendant in his tax returnsfiled for the years 2002, 2003 and 2004 stated that his marital status was


“separated”. In his Department of Transport Security Clearance applica-tion required for national security purposes signed on February 6, 2004,the Defendant stated that his marital status was “separated” and the dateof this event was May 6, 2002. He had also increased his financial ties toMs. Verasamy in 2003, having established a joint credit card and jointbank account with her.

18 I find that the date of separation for the purposes of these proceedingswas April 12, 2002, a date the parties reported in their respective taxreturns, pleadings and other documents exhibited at trial.

Spousal Support, Entitlement and Duration19 The Defendant seeks spousal support both retroactively and prospec-

tively which he claims is due because of his contribution to the Plaintiff’scompletion of her education qualifying her as a gastroenterologist whichpresently commands a substantial income; a claim that he was a home-maker during the marriage to a higher income earning spouse; and aclaim that his career was stalled for reasons associated with the marriage.

20 At the time of the marriage, the Plaintiff was completing a residencyat Dalhousie University in internal medicine. The Defendant was a pilotwith Air Nova. His income plummeted when the two airlines with whomhe worked back-to-back collapsed early in the marriage but for no reasonassociated with it.

21 The Defendant’s claim that he contributed to the Plaintiff’s career isthat he gave her emotional support and encouragement without whichshe may not have completed her qualifications. I do not accept that theDefendant contributed in any way to the Plaintiff’s career which waswell on its way long before the parties met. There is no question giventhe academic milestones the Plaintiff had already achieved that shewould have earned her credentials with or without the Defendant in herlife.

22 The Defendant further submits that he was a homemaker during themarriage with a spouse who had earned a far greater income and thatbecause of his gender he should not be treated any differently than a fe-male homemaker in a like position. However, there is a difference. TheDefendant was never a homemaker by any stretch of the evidence. Nan-nies were engaged at all times and the Defendant had very little responsi-bility not already covered by a nanny or the Plaintiff. He had no moreinvolvement than any parent returning home after work in the ordinarycourse except for the fact that he may have had even less given the rela-


tively low number of days he worked each month and the fact there werestill full time nannies. I accept the evidence of the nannies about his lackof hands on involvement and his use of most of his down time from workfor his own purposes. One incident which Mrs. Landry described is tell-ing. She arrived at the house to begin her work and baby Ryan was lyingin a soiled diaper apparently for some time as the odour was obvious assoon as she came it the house. The Defendant was busying himself oneither his computer or the phone. He appears to have left this task up tothe nanny.

23 It was this Court’s impression that the Defendant was more similar tothat of someone in semi retirement than a homemaker.

24 The Defendant’s claim that his career was stalled by the marriage isbased in his decision to pass up an opportunity as a pilot with Air Transatbased in Vancouver. He would have had to commute between Monctonand Vancouver and this would have had a negative impact on his familylife. I accept that he did not accept the position. However, he did notpresent any evidence other than his own assertions what he might havebeen paid or how quickly he might have risen to captain. He left theimpression that it would have been a rapid rise. Yet, he did not pursuethat option even when the Plaintiff and the children arrived in Calgaryand the parties had separated. An Air Transat position at that time wouldhave based him in Vancouver far closer to his family than Air CanadaJazz based in Halifax. His position that he did not pursue the Air Transatposition for family reasons lacks credibility to some degree. Rather, heaccepted a position as a first officer with Air Canada Jazz in 2000.

25 It was the evidence of WestJet executive Kevin Hollands that the De-fendant would have been hired and he would have made captain in aboutfour years. He admitted however that this is hindsight because at thetime, WestJet was a new venture and its viability had not yet been tested.

26 In any event, the Defendant would have had to work his way up atAir Transat just as he would have had to do so with WestJet and AirCanada Jazz, the latter airline where he is presently employed. His deci-sion then followed its ordinary course thereafter. No evidence was sub-mitted about what he would have earned or how long it would have takenhim to become a pilot at Air Transat which obviously would have com-manded a greater income. He testified that it will take him another fiveyears yet to become a pilot with Air Canada Jazz but no explanation wasoffered about why this period of time is required given the fact that hehas already had employment with Air Canada Jazz for more than a dec-


ade and he has had commendations from his employer. Further, Mr. Hol-lands testified that the Defendant is a well-regarded pilot. The Court hasbeen left with the impression that the Defendant has simply not activelypursued advancement. Whatever the cause, his employment advance-ment issues more recently are not a consequence of any decision relatedto his marriage to the Plaintiff.

27 It is clear from the evidence at trial that the parties’ incomes havelittle connection to the marriage. The parties since the sale of their homein Halifax in 2000 have not co-mingled any of their finances. The Plain-tiff has carried the larger share of the family financial responsibilities andthe years during which the Defendant had very low income he was re-sponsible only for his own expenses. This lack of co-mingling is dis-closed by the way the parties dealt with the proceeds of sale of the Hali-fax home before the move to Moncton. The Defendant received twothirds of the proceeds despite the fact that each party contributed $5,000to the down payment. However, he appears to have carried the highershare of the mortgage payments on that home.

28 Although the claim for recognition of an interruption in the Defen-dant’s career advancement should have been better supported by inde-pendent evidence and has an air of remoteness to it, this Court exercisesthe standard of proof on a balance of probabilities in the Defendant’sfavour and recognition for this will be part of any equalization adjust-ment due to him in the matrimonial property division.

29 However, the Defendant’s claim for spousal support beyond this hasnot been established to this Court’s satisfaction. He has remained em-ployed since the date of separation of the parties and has made no appre-ciable financial contribution to the family unit. Any spousal supportclaim beyond what has been addressed here would be unfair and isdismissed.

30 I find that the Defendant has not been disadvantaged in his careerother than by his own lack of initiative and his own choices except for arelatively short period of time.

Parenting the Children31 The Defendant seeks equal parenting time on a seven-day rotation

stating that he has always provided care to the children. The Plaintiffseeks day-to-day care and control of the children with regular access tothe Defendant on alternating weekends; a mid week evening with them;and an equal share of all school and family holidays; with such occasions


to be specified to avoid what she sees as constant tinkering with agree-ments made. Dr. Fong has recommended that the Plaintiff have decision-making authority for the children and that parenting be shared on thebasis of a 14 day rotation with the Plaintiff having the larger share ofparenting time with the parties sharing equally holidays and schoolbreaks. The parties have parented the children as Dr. Fong recommendedbut neither content with the arrangement.

32 Dr. Fong also notes in his bilateral report that the parents have verydifferent parenting styles. The Plaintiff is focussed on education andstructuring productive time for the children in their activities. The Defen-dant and his present spouse have a more casual style with focus on socialactivities and sports. Both styles bring something desirable to the chil-dren’s lives and they are not incompatible.

33 A great deal of time was devoted in these proceedings to the qualityand quantity of parenting by each party. It is abundantly clear that bothparents love their children and the children love them in return. How-ever, the evidence clearly discloses that it has been the Plaintiff who hasshouldered the lion’s share of responsibility for meeting the ongoingneeds of the children. The Defendant has been content with leaving thefinancial burden with the Plaintiff and has not contributed financially ex-cept in a nominal way largely through costs of the time he has spent withthe children occasionally buying groceries and paying a utility bill, facili-tating travel through employment perks.

34 I accept the evidence of the two nannies, Ms. Landry (in Moncton)and Ms. Beltran (in Calgary) that despite having substantial time whenhe was not working, the Defendant used the time more for his own pur-poses than spending time with his children leaving the nanny to sort outthe children and their needs occasionally helping out, driving them homewhen the Plaintiff arrived after work or allowing them to go home early.

35 The fact that a full-time nanny was retained throughout the time hewas not working is telling. I do not accept the Defendant’s claims thatthe Plaintiff refused to allow him to take the responsibility on his own. Itwould appear that the nannies were engaged initially because both par-ents had busy work schedules and later because the Plaintiff was not con-fident that the Defendant could handle the children on his own. Whilethere were many occasions when he was solely in charge of the childrenparticularly when the Plaintiff was out of town, he was not providing ongoing care himself. In almost every situation when he had the children onhis own, even his son by his previous marriage, he recruited assistance.


36 While he insisted in his testimony that he was with the children everyday that he was not engaged in his work as a pilot, as much as 15 or 16days a month, there is no evidence that he actually used that time to carefor the children. There was a full time nanny present even during theperiod Mr. Adams took paternity leave after his son was born.

37 The Defendant attempted to enlarge his role on day-to-day care and todiminish or discredit that of the nannies by stating that the nannies werealways hired by and paid by the Plaintiff therefore their evidence wasless credible.

38 However, it was the Defendant’s evidence of the time he spent withhis children which lacked credibility. He did have a fatherly role but itwas not to the extent he claimed. This was confirmed by Dr. Fong’s bi-lateral report, his conclusion gleaned from his discussions with the par-ties including friends of the Defendant and Plaintiff and the nannies whogave evidence at the trial as well. The Defendant attempted to discreditDr. Fong’s report. However, this Court finds the report to be a full dis-closure of events and the conclusions drawn were professional andobjective.

39 In any event, this Court has great concern about the Defendant’sdemonstrated exercise of poor judgement; his lack of insight and his highpotential for vindictiveness towards the children’s mother.

40 The most glaring incident occurred in the face of a court order care-fully prescribing a protocol for interviewing the children. Dr. Fong wasengaged to acquire input from the children on the parenting arrange-ments. The case management justice had endorsed a thoughtful and care-ful approach.

41 However, the Defendant took the children to his lawyer’s office, ad-mittedly untrained in interviewing children, prior to their attendance atDr. Fong’s office. His counsel, Mr. Ruff, provided his typed notes of theinterview to Dr. Fong. Dr. Fong was asked to record his interview withthe children but he prudently asked the children whether they wanted tobe recorded and both declined.

42 The Plaintiff only discovered that the children had been interviewedby Mr. Ruff and also coached into secrecy about it when Dr. Fong refer-enced it in his report. In his Report, Dr. Fong suggested that the expres-sion of the children’s wishes could not be relied upon given the taintingwhich had occurred. Despite this, Dr. Fong advised the Court that in hisopinion the children were reasonably content with their present parentingarrangement and considered their home to be with their mother.


43 The potential harm to the children was not acknowledged and in crossexamination, the Defendant disclosed little insight into the fact that thiswas the very thing the protocol sought to avoid. In this Court’s view, thisis a clear example of parental alienation assisted by the Defendant’scounsel.

44 When cross examined about the clandestine interview with the chil-dren, the Defendant brushed it off as his lawyer’s decision. Although thismay have been the case, the Defendant complied all too eagerly withoutthought to possible harm to the children.

45 Further, when he was questioned about bringing an ex parte applica-tion in Moncton for custody of the children while the Plaintiff was inAlberta making arrangements for the family’s move, he simply said hedidn’t know his lawyer was bringing the application. This, despite thefact that he had to swear the affidavit in support. In seeking informationto use in his application, he attended at the Plaintiff’s medical office inher absence and rifled through her correspondence retrieving job inquir-ies which had been made a year earlier before she had settled on theRockyview Hospital position. He appears to have justified his applicationfor custody on some sort of claim that the Plaintiff was planning immi-nently to move the children out of the country when he knew she hadcommitted to the Calgary position. He also inexplicably removed a num-ber of her patient files from her office turning them over to his Monctonlawyer who ultimately returned them. When cross examined about thisbehaviour, the Defendant simply dismissed it by stating he was neither adoctor nor a lawyer so he didn’t know anything about privacy. Why hetook the files to start with was never explained.

46 During the approximate three weeks it took the Plaintiff to have thefile returned to the court to have the ex parte custody order reviewed andultimately set aside, the Defendant permitted her only one visit with thechildren. I accept the nanny, Sharon Landry’s evidence that the Defen-dant “taunted” the Plaintiff when he picked up the children after the visit.There appears to have been no consideration at all about the impact onthese young children of denying their mother regular access. Rather, hedrove the children to Miramichi to visit his friend and now wife, Ms.Verasamy, about 240 kilometres return, rather than accommodating avisit with their mother.

47 Further questionable judgement was disclosed when the Defendanttook his daughter then a toddler to Disneyland along with his older son,then about 10 years old. The Plaintiff was visiting her sister in California


and had baby Ryan with her. He then contacted Ms. Verasamy to assisthim with Nicole, purportedly because no one else was available to do so,all the while assuring the Plaintiff he would have no trouble handling thetwo children on his own. Knowing he had the option of taking his sonalone and leaving the toddler with the child’s mother, he elected to sum-mon Ms. Verasamy.

48 More recently, in a lengthy parenting plan prepared at Dr. Fong’s re-quest, the Defendant suggested that his son Ryan be registered in thesame private school as his sister, Nicole who attends there because of herparticular education requirements. He appears to have the expectationthat the Plaintiff should pay for this as well. His reasons for this sugges-tion as indicated in his cross examination at trial were more to do withthe “convenience” of collecting the children for his parenting time fromthe same school despite the fact that his son wanted to continue in publicschool and is doing well there. He was clearly not thinking about thechildren’s best interests.

49 Nevertheless, the Defendant is a positive figure in the children’s livesdespite his tendency to affect their views on the respective parents accesstime with them. The children are happy with him in their lives and theylove and respect both him and their step mother who is able assist theDefendant in their care. The evidence was clear that while Mrs. Adamshas been active in the children’s care in a positive way, she has somenegative tendencies too. She has been critical, for example, of the waythe children are dressed but fails to acknowledge that the children’s fa-ther has contributed nothing to their support.

50 Neither the Defendant nor his wife are as well equipped through theirown backgrounds or inclination to assist the children with their educationin the manner the Plaintiff has in the past and will continue to do so. Dr.Fong notes this fact in his report. It is important that more of the schooldays are spent in her household.

51 In assessing the best interests of the children through a careful consid-eration of the evidence in these proceedings, I find that the most appro-priate parenting arrangement for the children should be based on a 14day rotation with the Plaintiff having the first nine nights and the Defen-dant having the next five nights with the children. The Plaintiff is theparent best equipped to guide the children as she has in the past and theDefendant spending quality time with them. This is also the regime thechildren are presently accustomed to; they consider their home to be withthe Plaintiff as they disclosed to Dr. Fong. Further, this arrangement is


consistent with the objectives of section 16(10) of the Divorce Act thatcontact with the parents should be maximized in so far as it is in the bestinterests of the children to do so.

52 Having said that, I remain concerned about the Defendant’s past exer-cise of poor judgement regarding the children and his attempts to influ-ence their views on access. Interfering with the parenting regime or at-tempting to alienate the children against the other parent is not in theirbest interests. Any such continued behaviour will be grounds for a varia-tion of parenting time by reducing the Defendant’s time with thechildren.

53 The parties inability to work together to parent the children has beenconsidered in the crafting of this parenting regime. It has also been ar-ranged to limit as much as possible opportunities for argument betweenthe parties and tinkering with allocated time.

General parenting of the Children

a). Parenting of the children shall be shared with the children spend-ing nine consecutive overnights out of every 14 with the Plaintiffand five with the Defendant. Specifically, the Defendants fiveovernights commence on Thursday when the children are col-lected after school and end on the following Tuesday morningwhen they are delivered to school. His next access time followsthe Plaintiff’s nine overnights which commence the Tuesday afterschool until the Thursday morning of the following week.

b). Because the parties are unable to share decision making and be-cause of this Court’s concern about the Defendant’s poor judge-ment skills, all decisions regarding the education, health, religion,activities and general well being of the children shall repose withthe Plaintiff. The Plaintiff may consider the Defendant’s reasona-ble suggestions but he shall not badger or bully the Plaintiff intoacceptance in any manner whatsoever. Both parents shall take intoaccount the wishes of the children where appropriate given theirages and stages of development;

c). The Defendant shall be entitled to information about the chil-dren’s health, welfare, education and religious training directlyfrom any educator, health care provider, or other professionals at-tending upon the children. He may attend at the children’s schoolsfor appropriately designated volunteer days and such time shallnot be formally considered parenting time by either parent.


d). Communication between the parties shall be limited to Email orText messaging except during emergencies. All communicationshall be in a respectful, business-like manner.

e). Either parent is at liberty to attend any public function involvingthe children without any interference by the other parent directlyor indirectly whatsoever, and at all times shall conduct themselvesin a dignified, adult manner respectful of the children’s right to becomfortable whether in the presence of one or both of them. Theparent on whose parenting time any such public event may occur,shall be permitted to be with the child after the event to the exclu-sion of the other parent. The other parent may greet thechild/children at a distance but shall remain respectful of the otherparents time with the child/children unless specifically invited bythe other parent. Neither shall take advantage of such invitationand shall accept or decline graciously. Neither parent shall conveymessages to the other parent through a child or in any manner in-sult or interfere in the activities of the other during that timeNeither parent or their spouses or friends shall make the other par-ent uncomfortable during any such event and shall focus their at-tention on the child’s activities and not on what the other parentmay or may not be doing.

f). Both parties shall refrain from making derogatory commentsabout the other of any kind whatsoever within the hearing of ei-ther child whether they are in their respective care or otherwise.They shall instruct any spouse or partner to honour this directive.Both parents by being courteous and respectful to each other,demonstrate respect for their children.

g). Should either party decide to move outside the City of Calgary,they shall provide to the other, 90 days advance notice in writingof such intention.


Other parenting times

h). The Plaintiff and the Defendant shall share all school holidays andspecial occasions equally. There shall be no special accommoda-tion for statutory holidays other than referenced herein.

Christmas hol- The Plaintiff shall have the first half of theidays: holidays which includes Christmas day on

even numbered years and the Defendantshall have the first half of the holidays onodd numbered years. If the employment ob-ligations of either party is a factor, the par-ties shall work together to ensure that thetime is spent with one or other parent as afirst option. If there are an uneven numberof days available to be divided the extraday shall be rotated annually with it com-prising part of the second half of the holi-day period.

Spring Break: The Plaintiff shall have the first half of theannual spring break in even numbered yearsand the Defendant shall have the first halfof annual spring break on odd numberedyears. If there are an uneven number ofdays available it shall be shared in the samemanner as the Christmas holidays.

Summer Holi- The Plaintiff shall have the month of Julydays: on even numbered years and the month of

August on odd numbered years. The Defen-dant shall have the month of July on oddnumbered years and the month of Auguston even numbered years; The children shallbe at liberty to contact the other parent eve-ry three days without interference from theother parent.

i). All parenting time will accommodate the children’s activities andit is the respective parents responsibility to transport the childrento and from their activities without exception or alternativelymake appropriate arrangements. The Plaintiff shall not enrol thechildren in summer camps during the Defendant’s summer holi-day time without his consent in writing.


j). No special accommodation will be made for birthdays of the chil-dren or the parents.

k). The Plaintiff and the Defendant shall have Mother’s Day and Fa-ther’s Day respectively whether or not it falls on their parentingtime for a period of four hours commencing at 1 p.m. and con-cluding at 5 p.m., the parent whose day it is shall pick up anddeliver the children promptly and without exception. The parent inwhose home the children are on those days shall ensure that thechildren are ready to be picked up without delay and returnedwithout delay.

l). Either parent shall be at liberty to travel nationally or internation-ally with a child or both children and the other parent’s consentfor travel shall not be unreasonably withheld provided that thetravel itinerary including travel dates, accommodation and generaldescription of the reason for travel is provided to the other parentwithin 30 days of the date of intended travel. Such travel will beon non school sitting days. The Plaintiff shall hold the children’spassports and shall produce them for the purpose of accommodat-ing travel and they shall be returned to her at the end of the tripwithin 7 days, failure of which the non complying parent shall payper diem costs to the other at $25 per day unless an acceptableexplanation is provided.

m). If, because of inability to care for the children themselves throughwork or other commitments out of the City of Calgary, the otherparent has the right of first refusal over child care services for thechildren. Such additional time shall not affect the time the chil-dren are in the care of a parent for child support purposes. If aparent declines to exercise the right of first refusal, the decisionshall be graciously accepted without derogatory or othercomment.

Requests for Accommodations

n). The parties are at liberty to make accommodations respecting timewith the children. It may be increased or decreased to accommo-date special events in the lives of either parent or their extendedfamilies, it being acknowledged that such events are in the bestinterests of the children. The parent seeking an accommodationshall in no way badger or bully the other parent or attempt to weardown the parent by unreasonable persistence. The requesting par-


ent shall put the request in writing to the other parent in a businesslike fashion but always in writing stating the reasons clearly andfully, the extent of the time sought, the time, date and all arrange-ments regarding travel. There shall be no misleading of the parentto whom the request is made either directly or indirectly. An ac-commodation shall be viewed by both parties as a privilege not aright and the parents shall be gracious to the other parent at alltimes. All requests shall be reasonable in nature and special in thatthey are infrequent, educational or family oriented. Accommoda-tions shall be subject to a day-for-day crediting back of the time tobe reclaimed as soon as possible or during school holiday blocksof time.

Child Support54 To say that parents have a joint financial obligation to support their

children to the best of their respective abilities is to state the obvious.That this obligation is independent of any court order of legislation iswell established (S. (D.B.) v. G. (S.R.), 2006 SCC 37 (S.C.C.)).

55 The Plaintiff has supported the children financially with negligibleassistance from the Defendant. She asks this Court to order the Defen-dant to pay his share of retroactive support, section 7 expenses and hastold the court she is willing to forego ongoing child support if the Defen-dant would simply spend what would otherwise be his obligation on thechildren. It would appear that this latter position is rooted in simple frus-tration. The Defendant has been content with the Plaintiff paying because“she makes more money”. He has not fulfilled his obligation and has notsatisfied this Court that there are principled reasons for it such a hardshipor other cause. His attitude that the Plaintiff should pay has been so in-grained in his attitudes that even when he attended at his daughter’sclassroom on a parent day and the child reported to him that she owed a$7.50 fee, rather than simply paying it for her and removing her namefrom the blackboard where her debt was posted, he told the child to get itfrom her mother.

56 Jurisdiction to award retroactive child support where there has beenno prior court order, agreement, hardship or special circumstances as inthe case here, is established by the Divorce Act section 15.1, which em-powers courts to grant orders for the support of children of a marriagewithout any restriction as to commencement date. Here there is no issuethat the children are entitled to support given their young ages.


57 The factors to be considered whether retroactive support should beordered in the circumstances of this family include: whether the childrenwould have a “discernible benefit”; whether a retroactive order wouldcause hardship to a payor parent in ways a prospective award would not,whether delay in failing to seek support earlier was reasonable; was thereason no child support was forthcoming was based on hardship at thetime. I find that there was no hardship facing the Defendant after theparties separated not faced by any parent in like circumstances. He haschosen to work 12 to 15 days a month when he had options to do more.He simply developed the attitude that the Plaintiff should pay, somethingneither party disputes occurred throughout the marriage between two fi-nancially disconnected spouses. While that was a condition of the mar-riage, the Defendant has a duty post marriage to contribute. His evidenceat trial was that he did not pay support because the Plaintiff “did notrequire it”. He said that he helped out at school by volunteering and thathelped lower the school fees by about $300 per year.

58 Despite the Defendant’s failed obligation, I find that there would be ahardship to him were he required to now come up with 9 years of childsupport. The Plaintiff’s delay in seeking support by court order was notwell explained at trial. It appears she simply continued the historic pat-tern of the marriage and paid everything, declining to take on the Defen-dant until trial.

59 While it is repugnant to this Court that the only voluntary child sup-port the Defendant has ever paid was because a previous lawyer told himto do it and even then it was only for three months, a balancing of factorsis necessary in determining what is appropriate here. I find that an orderfor retroactive support is appropriate but limited to about three years andthis is arrived at with some reluctance given the Defendant’s self-createdsituation of electing not to contribute and then blaming the Plaintiff for“not letting him”, a position this Court does not accept.

60 The Plaintiff for reasons not clearly explained at trial did not pursueany contribution from the Defendant for his proportionate share. Whileshe may have elected to continue paying out of frustration or lack ofenergy to fight over it, she had able counsel and could and should havedone so. In any event, this Court finds that the effect of accumulating alarge account with the expectation that it will or can be paid withouthardship is unrealistic. As for the future, it is not for the Plaintiff to de-cide to simply not collect support duly ordered either. It is the children’sright to have it and the Defendant’s duty to pay it. It is clear that the


Defendant has shirked his responsibility to his children in the past andshould not be permitted to do so for the future.

61 Section 7 expenses for the children paid by the Plaintiff since the par-ties separated in 2002 have been substantial. The expenses were placedin evidence through a schedule setting out the expenses per year between2002 and 2010. The schedule, which I accept as evidence, references thefollowing categories: health care, the largest component of which oc-curred in 2006 because of psychologist fees, dental and eye care and Al-berta health fees until that cost ceased to be an expense in 2009; Schoolexpenses, the largest component of which is the private school whichNicole attends because of her learning disability’; extracurricular activi-ties such as music, dance baseball, swimming, skating hockey andringette; child care costs of nannies over the years and day camps. TheSection 7 expenses for 2010 amount to $16,369.00. It may be assumedthat the costs for 2011 will be similar to what was incurred in 2010. Thelessening costs appear to be affected by a lesser need for child care as thechildren grow older.

62 The children’s ongoing section 7 expenses will be based on the list ofitems which the mother has paid on their behalf in the past.

63 The Defendant shall pay retroactive guideline section 3 child supportfrom January 1, 2008 together with his proportionate share of Section 7expenses. He shall pay ongoing child support and section 7 expenses onthe same basis.

64 The Defendant claims section 7 expenses between 2004 and 2009 inthe amount of $7,560.00, however most of this is comprised of costs re-lated to his parenting time with the children such as restaurants, haircutsfor the children, entertainments including hockey tickets and an out-of-town ringette tournament which the Defendant, his wife and the childrenattended. These expenditures most of which are not properly Section 7expenses are so out weighted by the Plaintiff’s contribution since thechildren were born that it would be exceedingly unfair to allow them atall. This Court exercises its discretion in all the circumstances. Thoseexpenses which are otherwise proper are also denied.

65 For the financial protection of the children in the longer term, Coun-sel for the Plaintiff has asked this Court to order that each party establisha life insurance policy naming the children as beneficiaries. I agree thatthis is a prudent arrangement. The policy of insurance shall be in theamount of $250,000 with the parties naming a suitable trustee. The pol-icy shall remain in place until the children are both no longer children of


the marriage. They shall provide proof that the policy is in good standingalong with a copy of their annual tax return and CCRA assessment on orbefore June 30 each year.

Matrimonial Property66 The Defendant claims an interest in the property acquired both before

and after the date of separation of the parties. The Plaintiff seeks a “sub-stantial unequal division” based on the Defendant’s lack of contributionto any of the assets accumulated upon the parties’ arrival in Moncton.Further, the Plaintiff argues that when she left Moncton, some assets hadaccumulated but they were limited because she had only been workingfor about 18 months having had an intern’s remuneration to rely on priorto joining the staff at Moncton Hospital and through her own fiscal pru-dence. The Defendant had depleted most of his modest asset base whichincluded his share of the proceeds of sale of the Halifax home and hisRRSPs. It was his evidence that he used some of his RRSPs largely accu-mulated prior to the marriage to “support the family”. However, he ad-mitted using part of his RRSPs to finance his trip to Cuba in 2000 withhis present wife, Ms. Verasamy, unknown to the Plaintiff at the time. Atthe same time, however, he claims that he had no help from the Plaintiffto pay family bills when the evidence is that she covered almost all ofthem except the Defendant’s own personal expenses.

67 The property at issue is primarily what was acquired by the Plaintiffsince the Defendant continues to rent a home in Calgary and there wasno evidence of any substantial property. The property may be dividedinto two categories:

A. Pre-Separation Property:RRSPsThe Moncton duplexBank accounts and investmentsThe Plaintiff’s N.B. Professional Corporation

B. Post-Separation PropertyThe Garrison Woods home in CalgaryThe Plaintiff’s Alberta Professional CorporationBank accounts, RRSPs and investments

68 The Matrimonial Property Act in s 7(4) prescribes the approach to betaken in dividing matrimonial property acquired during a marriage which


is not otherwise subject to exemptions permitted under the Act or af-fected by the statutory considerations set out in Section 8.

69 Section 7 provides for an equal distribution unless “it would not bejust and equitable to do so taking into section 8 of the Act,” which in-clude:

(a) the contribution made by each spouse to the marriage and tothe welfare of the family, including any contribution made asa homemaker or parent;

(b) The contribution, whether financial or in some other form,made by a spouse directly or indirectly to the acquisition,conservation, improvement, operation or management of abusiness, farm, enterprise or undertaking owned or operatedby one or both spouses or by one or both spouses and anyother person;

(c) The contribution, whether financial or in some other form,made directly or indirectly by or on behalf of a spouse to theacquisition or improvement of the property;

(d) the income, earnings capacity, liabilities, obligations, pro-perty and other financial resources

i. That each spouse had at the time of the marriage, and

ii. That each spouse has at the time of the trial;

(e) the duration of the marriage;

(f) whether the property was acquired when the spouses wereliving separate and apart:

(g) the terms of an oral or written agreement between thespouses;

(h) that a spouse has made

i. A substantial gift of property to a third party, or

ii. A transfer of property to a third party other than abona fide purchaser for value;

(i) a previous distribution of property between the spouses bygift, agreement or matrimonial property order;

(j) a prior order made by a court;

(k) a tax liability that may be incurred by a spouse as a result ofthe transfer or sale of property;

(l) that a spouse has dissipated property to the detriment of theother spouse;

(m) any fact or circumstance that is relevant.


70 The provisions of Section 8 are considered here in the context of allof the facts and circumstances of the marriage (see Hodgson v. Hodgson,2005 ABCA 13 (Alta. C.A.) at paras. 18-21).

Subsection (a) - Spousal contribution to the marriage and family71 The contribution made by each spouse to the marriage and to the wel-

fare of the family including as a homemaker or parent in the circum-stances of this marriage is heavily lopsided. The Plaintiff clearly bore thelion’s share if not all of the financial responsibility of the family. TheDefendant’s contribution to the family expenses has been negligible. Hestates that he bought groceries and paid for expenses of the children. Yetmost of the costs he raised relate to social activities with the children forwhich he sought credit as a section 7 expense. The Defendant presentedhimself at trial as akin to a stay-at-home parent despite the fact that thechildren have always had a full time nanny. There is no dispute that theDefendant made no contribution towards the cost of the full time nannyfor the children in Halifax, Moncton or Calgary. There was also evidenceby the nannies that the Defendant’s layovers could not be counted onbecause he often arrived home after the children were asleep.

72 Despite the fact that he often had up to half a month of non flight timeat his disposal, he did not devote significant time to his family. I acceptthat there were occasions when he pitched in and helped out around thehome by picking up groceries, doing some laundry and taking the chil-dren to visit the Plaintiff at her office and arranging occasional travelthrough his employment. However, this is a far cry from shouldering theongoing responsibility for child care which this section contemplates asthe contribution of a “homemaker”.

73 Whenever an occasion arose in which he had the children on his ownsuch as when the Plaintiff worked or had an out of town conference, thenannies were relied on by him or he otherwise recruited the assistance ofhis mother, the Plaintiff’s mother, Ms. Verasamy. He did not carry outtasks independently to any appreciable extent other than the period afterthe birth of Nicole. His idea of parenting was more being physically inthe house than doing hands-on care. The nannies were infrequently senthome early because of his presence. As the Moncton nanny, Ms. Landry,reported, when she was present, the Defendant was either on the tele-phone for lengthy periods or attended to his own requirements there orelsewhere. While the Defendant attempted to discredit Ms. Landry whowas hired and paid by the Plaintiff as not being objective, I find that her


evidence was credible and had a strong ring of reality. Further it was notcontroverted in cross examination to any significant extent.

74 The Defendant spent much time claiming that he did many taskswhich the nanny had to have done and his lack of hands-on capabilitywas evident by the recruitment of others to assist him. The Defendantused his off time far more for his own purposes. That was the evidenceof the nannies and I accept it.

75 At the present time his role as a father is rather different, quite possi-bly because his present wife is able to assist him on an ongoing basis.More recently he has volunteered at the children’s schools and this hasbeen well received.

Subsections (b) and (c) - Contribution to Acquisition orImprovement of the Property

76 The Defendant agreed that he did not contribute to the down pay-ment, mortgage or expenses on any property after the Halifax home wassold and the parties received their share of the proceeds. The Defendantdoes not dispute that he received a larger portion of the Halifax sale pro-ceeds because he had “contributed more” than the Plaintiff to the acquisi-tion of it.

77 The Defendant admits that he made no direct financial contribution tothe acquisition, conservation, improvement to the Moncton property, aduplex, in which one unit served as the matrimonial home, by down pay-ment, payment of the mortgage, taxes or upkeep including the renovationundertaken around the time the property was purchased expect for thepayment of a few month’s of utility bills after the parties separated andhe lived there on his own.

78 Both parties agree that the Defendant did assist the Plaintiff duringthe first three months of the commencement of her work at the MonctonHospital by setting up her billing and accounting systems and assistingwith booking patients until she hired staff.

79 He readily admitted that he made no financial contribution to the ac-quisition of the Garrison Woods home in Calgary but states that he diddo some minor repairs such as fixing a door and changing light bulbsduring the time he was there visiting the children. The Defendant’s con-tribution to the Garrison Woods property is negligible if it exists at allbut in any event, does not represent a contribution to the property in themanner contemplated by the Matrimonial Property Act. He agrees that


he made no contribution to the Plaintiff’s Alberta professionalcorporation.

Subsection (d) - Income and Earning Capacity of the Parties80 At the time of the marriage, the Plaintiff was earning income as a

third year intern in internal medicine. The Defendant was earning twiceher salary as a captain with Air Atlantic at that time. Her income taxreturns from that period show income between about $28,000 to $43,000during her internship in internal medicine followed by a residency in gas-troenterology. When she took the position as a qualified gastroenterolo-gist in Moncton in 2001, her income dramatically rose. She earned herhighest level of income prior to the separation during the 18 months shewas employed as a gastroenterologist in Moncton.

81 The Defendant was a captain with Air Atlantic when the parties mar-ried. His income that year was in the $80,000 a year range. However, hisincome plummeted when the airline went out of business along with In-ter Canadian the following year. He spent a short time drawing Employ-ment Insurance benefits. His income remained low until about 2002when it reached the $50,000 mark. The parties separated that spring. Theloss of employment with Air Atlantic and Inter Canadian was not causedby the marriage and would have occurred in any event. However, theDefendant did not pursue an opportunity in Vancouver with Air Transatfor family reasons which may have meant his income would have accel-erated quickly. However, he also passed up on an opportunity withWestJet in 2002 which would have had a similar effect on his income.His reasons for declining to that position which would have had himworking and living in the same city as his family for the first time sincethe parties were married, were rather frivolous - he didn’t like the uni-form or WestJet’s corporate culture. Further, he did not pursue any newopportunity with Air Transat which would have had him based in Van-couver, much closer to Calgary where his family was living by this time,than the commute from Halifax.

82 Further, it was the evidence of Kevin Hollands, who has held seniorpositions with WestJet throughout the relevant period that it is customaryfor pilots to take on extra routes or even sideline jobs to round out theirincomes. At no time did the Defendant do this to any significant extent,in fact he admits to taking on no additional jobs and taking extra routesless than a handful of occasions each year.


83 In addition, the Defendant’s reasons for not yet achieving captain sta-tus with Air Canada despite working with the airline for more than adecade was only vaguely explained at trial. He submits that he cannotachieve captain status with Air Canada Jazz for another five years.

84 This Court is not satisfied with the Defendant’s evidence regardinghis employment progression. He is apparently still well regarded as theletter of commendation he produced suggests. It is this Court’s conclu-sion that the Defendant has not actively pursued captain status and thathe is, at least for the present, content with where is he professionally.There is nothing in the evidence that I accept as credible which wouldsuggest that his career path with Air Canada has been stymied because ofhis marriage to the Plaintiff or that he was called upon to make his careersecondary to hers with an attendant significant loss of opportunity.

85 Line 150 on the parties personal tax returns for the years includingand following the date of separation discloses the following income:

Tax year Mark Adams Fatin Adams2002 50,088.00 184,349.662003 46,165.00 173,214.852004 46,497.00 190,994.842005 54,104.38 228,479.012006 54,119.00 192,769.562007 59,622.58 287,332.602008 65,393.00 222,876.532009 64,810.00 219,312.03

86 The 2010 tax returns had not yet been filed at the time of the trial.

Subsection (e) - Duration of the Marriage87 The parties were married in 1997, separated in 2002 and were di-

vorced in 2006. They were together for four and one half years of thenine-year marriage.

Subsection (f) - When Property Acquired88 The most substantial property was acquired after the parties’ sepa-

rated and after the Plaintiff moved to Calgary. All of the property wasacquire through her initiative.


Subsections (g), (h) (i) (j) (l) - Agreements, Gifts, Distributions,Orders, Asset Dissipation

89 Neither party has alleged the existence of any specific oral or writtenagreements, gifts of property to any third party, previous distributionsbetween them of property after them moved from Halifax and dealt withtheir home. There are no prior court orders respecting the distribution fotheir property.

Subsection (k) - Tax Consequences90 The Plaintiff submits that should she be required to pay a sizeable

equalization payment to the Defendant for his share of any property,there will be tax consequences for removing the funds from her profes-sional corporation which would be the source of funds for such a payout.There may also be tax consequences for transfer of real property.

Division of Property Based on Section 8 Discretion91 At the time of the marriage the parties each had RRSPs but little else.

They were both renters and earned income. They bought a home in Hali-fax once the children started to arrive but sold it and distributed the pro-ceeds between them before moving to Moncton. By this time the Plaintiffhad completed her education and the parties had severed their financiallinks.

92 The Defendants employment with Air Atlantic had dissolved and In-terCanadian followed suit. He had a period of unemployment then joinedAir Nova at a modest salary. At the time of the marriage in 1997, thePlaintiff had an RRSP account of $12,255 and registered investments of$48,000. By the date of separation in the spring of 2002, her RRSP ac-count was $3,919 and her registered investments wee $75,597.00. TheDefendant had an RRSP account at the time of the marriage but appearsto have all but depleted by the date of separation. He cashed in RRSPsduring his period of unemployment and while he claims to have used itfor family purposes admits that he used some of it to fund a trip to Cubain 2000 with his present wife, Ms. Verasamey unknown to the Plaintiffuntil after the fact.

93 At the time of separation the matrimonial home was one of the twounits of the duplex which the Plaintiff purchased. She paid out the mort-gage of the duplex of about $100,000 after the date of separation, how-ever, this was largely covered by the rents from the duplex throughout.


Both units remain rented. Ongoing rents would have defrayed the du-plexes expenses on a continuing basis as well.

94 The Defendant contributed to the Plaintiff’s New Brunswick Profes-sional Corporation by helping her set us accounting and computer sys-tems and helping with booking for the first three months until she hiredstaff. However, the professional corporation until the date of separationhad not accumulated assets since the Plaintiff had only been in place for18 months. It received her income which was used for payment of themortgage and family expenses.

95 The Defendant submits that he sacrificed a position with Air Transatalthough the fall out from this was not specifically proved at trial. Noevidence was called about what he would have earned other than fromhis own vague speculation. Nevertheless, this Court is willing to ac-knowledge there was some loss to him.

96 The Defendant made no contribution to the property which the Plain-tiff acquired in Calgary. He made no rental payments before the GarrisonWoods home was purchased. He made no down payment, he made nomortgage payments, he did not contribute to the renovations or the up-keep in any significant way. He did not reside in the Garrison Woodshome although he visited his children there from time to time and waspermitted to stay there overnight from time to time. He did not contributein any manner whatsoever to the Plaintiff’s Alberta Professional Corpo-ration through which she earns her income. During the entire period theparties were separated the Defendant made three child support paymentsand then only because he was directed to do so by his then legal counsel.He did not contribute to the children’s section 7 expenses except to aminuscule extent. He was content to have the Plaintiff foot the bills ofmost if not all of them because “she made more money” than he did.

Pre-Separation Property97 With respect to the assets accumulated prior to the separation of the

parties, the parties are entitled to one half each of the property acquiredprior to the date of Separation as I have found it to be. For clarity, theyare entitled to one half of the present value of the Moncton duplex; onehalf of the Plaintiff’s Bank account, unregistered investments and RRSPas it stood at the date of separation less its value at the date of the mar-riage brought forward to a present value. For clarity, the Defendant is notentitled to any share of the contributions the Plaintiff made to the RRSPaccount after the date of separation because of the application of the Sec-


tion 8 factors, specifically the fact he contributed nothing to the accountand made no contribution of any kind to the income the Plaintiff earnedto do so, after that date. They shall also share one half of the Defendant’sRRSP account at the date of separation in present value expecting postseparation contributions and value at the time of the marriage. From theevidence at trial, it would appear that the Defendant had no substantialassets at the time of separation except for the travel trailer he purchasedwith Ms. Verasamey.

98 I find that the Plaintiff’s New Brunswick Professional Corporationhad no independent value other than being the entity which facilitatedher income.

99 Although the Court has expressed reservations about the Defendant’sloss of opportunity with Air Transat, there is some evidence of thiswhich based on a balance of probabilities supports some recognition. Ac-cordingly, he is entitled to recover for the approximately two-year- pe-riod between the time the Air Transat opportunity arose and his accept-ance of his position with Air Nova (now Air Canada Jazz). The lumpsum will be based on two years compensatory support and is an aggre-gate sum of $24,000.

100 Set off from the Defendant’s share of property will be Section 3Guideline income and his proportionate share of the Section 7 expensesof the children based on income from Line 150 of the parties annual taxreturns. For clarity, the Defendant’s section 3 and section 7 child supportobligations from 2008 forward are based on the Plaintiff having parent-ing time amounting to day to day care and control and the Defendanthaving parenting time in the nature of access.

Post-Separation Property101 The Plaintiff shall have as her own separate property the following:

Her Alberta Professional Corporation; the Garrison Woods home, herpresent investment portfolio and RRSPs, bank and all other accountssince arriving in Calgary together with all household effects and motorvehicles. The Defendant shall have no share of the post-separation pro-perty accumulated by the Plaintiff after the date of separation of the par-ties. The Plaintiff shall have no share of the post-separation property ac-cumulated by the Defendant. I apply Section 8 factors of the MatrimonialProperty Act based on lack of contribution to any of that property.

102 The parties shall retain all other real estate, investments, chattels heldby them.


Other Matters103 Each party is entitled to their own Canada Pension Plan contributions

past, present and future.

Costs and Clarifications104 If the parties are unable to agree, costs may be spoken to within a

reasonable period of time. Any clarification required by any finding ofthis Court may be spoken to also within a reasonable time.

Petition granted; application dismissed.

Adams v. Adams 289

[Indexed as: Adams v. Adams]

Fatin Hassan Adams (Plaintiff) and Gareth Mark Adams(Defendant)


Docket: Calgary 4801-119740

2011 ABQB 812

M.C. Erb J.

Heard: December 8, 2011

Judgment: December 22, 2011

Family law –––– Costs — In family law proceedings generally — Factorsconsidered — Conduct of party –––– Plaintiff mother was largely successful indivorce trial and sought costs accordingly — Defendant father claimed that therehad been misconduct on part of mother and her counsel which should argue forno costs or costs against mother — Submissions on costs were made — Costsawarded to mother — Father’s counsel made allegations of misconduct againstmother and her counsel, none of which were supported by evidence — Allega-tions of misconduct against counsel engaged services of liability insurer despitebeing unfounded, increasing father’s liability for costs — Any errors of mother’slawyer were not serious and did not warrant claims of father.

Family law –––– Costs — In family law proceedings generally — Offer tosettle –––– Plaintiff mother was largely successful in divorce trial and soughtcosts accordingly — Defendant father claimed that there had been misconducton part of mother and her counsel which should argue for no costs or costsagainst mother — Submissions on costs were made — Costs awarded tomother — Mother offered to settle litigation in unequivocal, formal offer thatwas less favourable to her than judgment received at trial — Father did not takeoffer seriously in favour of trial preparation and double costs from time of offerwere warranted.

Family law –––– Costs — In family law proceedings generally — Factorsconsidered — Success — Relative success –––– Plaintiff mother was largelysuccessful in divorce trial and sought costs accordingly — Defendant fatherclaimed that there had been misconduct on part of mother and her counsel whichshould argue for no costs or costs against mother — Submissions on costs weremade — Costs awarded to mother — Mother had majority of success on everyissue although some findings were made in favour of father — Success did notneed to be total for costs award to take place and mother’s success was easilysubstantial enough to warrant costs award — Length of trial, factual complexity


and amount of money at stake were used to justify greater award of costs tomother — Amount claimed by mother for expert reports on financial valuationswas reduced due to duplication of services — Father was required to pay costsfor reasonable work done as these issues were key in determining breakdown ofproperty.

Family law –––– Costs — In family law proceedings generally — Personsentitled to or liable for costs — Against counsel –––– Plaintiff mother waslargely successful in divorce trial and sought costs accordingly — Defendant fa-ther claimed that there had been misconduct on part of mother and her counselwhich should argue for no costs or costs against mother — Submissions on costswere made — Costs awarded to mother — Father’s counsel advanced allega-tions of misconduct at mother and her counsel as well as witnesses withoutproof, apparently as part of litigation strategy — Father’s counsel’s conduct wasunprofessional and warranted costs award against solicitor personally — Thiscosts award took form of payment by father’s counsel of mother’s legalexpenses.

Cases considered by M.C. Erb J.:

Adams v. Adams (2010), 2010 CarswellAlta 1757, 2010 ABCA 256 (Alta. C.A.[In Chambers]) — referred to

Adams v. Adams (2011), 2011 ABQB 576, 2011 CarswellAlta 1899 (Alta.Q.B.) — referred to

Anderson (Next Friend of) v. Ball (1997), 1997 CarswellAlta 1173, (sub nom.Anderson v. Ball) 214 A.R. 332, [1997] A.J. No. 1197 (Alta. Q.B.) — re-ferred to

B. (R.) v. B. (E.) (2010), 87 R.F.L. (6th) 254, 2010 ABCA 358, 2010 Carswell-Alta 2322 (Alta. C.A.) — referred to

C. (D.B.) v. W. (R.M.) (2005), 393 A.R. 160, 2005 ABQB 898, 2005 Carswell-Alta 2017, 23 R.F.L. (6th) 120 (Alta. Q.B.) — referred to

Cador v. Chichak (1998), 1998 CarswellAlta 971, 1998 ABQB 881, [1998] A.J.No. 1188 (Alta. Q.B.) — considered

Cador v. Chichak (2000), 2000 CarswellAlta 8, 2000 ABCA 10, [2000] A.J. No.24 (Alta. C.A.) — considered

Hill v. Church of Scientology of Toronto (1995), 25 C.C.L.T. (2d) 89, 184 N.R.1, (sub nom. Manning v. Hill) 126 D.L.R. (4th) 129, 24 O.R. (3d) 865 (note),84 O.A.C. 1, [1995] 2 S.C.R. 1130, 1995 CarswellOnt 396, 1995 Carswell-Ont 534, (sub nom. Hill v. Church of Scientology) 30 C.R.R. (2d) 189, 1995SCC 67, EYB 1995-68609, [1995] S.C.J. No. 64 (S.C.C.) — considered

Jackson v. Trimac Industries Ltd. (1993), 8 Alta. L.R. (3d) 403, 138 A.R. 161,[1993] 4 W.W.R. 670, 1993 CarswellAlta 310, [1993] A.J. No. 218 (Alta.Q.B.) — considered

Adams v. Adams 291

Kerr v. Kerr (2001), 18 R.F.L. (5th) 292, 2001 ABCA 152, 2001 CarswellAlta871, 293 A.R. 384, 257 W.A.C. 384, [2001] A.J. No. 802 (Alta. C.A.) —considered

Laframboise v. Billett (1991), 81 Alta. L.R. (2d) 285, 1991 CarswellAlta 122,[1991] A.J. No. 1244 (Alta. Q.B.) — considered

Loates v. Loates (2000), 2000 ABQB 253, 2000 CarswellAlta 369, 48 C.P.C.(4th) 343, 185 D.L.R. (4th) 525, 264 A.R. 287 (Alta. Q.B.) — considered

M. (N.) v. W. (F.) (2004), 2004 ABCA 151, 2004 CarswellAlta 559, 348 A.R.143, 321 W.A.C. 143, 2 R.F.L. (6th) 87, 47 C.P.C. (5th) 253, 243 D.L.R.(4th) 220, 8 E.T.R. (3d) 117, 33 Alta. L.R. (4th) 17, [2004] A.J. No. 510(Alta. C.A.) — considered

MacCabe v. Westlock Roman Catholic Separate School District No. 110 (1999),1999 CarswellAlta 353, 70 Alta. L.R. (3d) 1, [1999] 10 W.W.R. 461, 1999ABQB 666, [1999] A.J. No. 499 (Alta. Q.B.) — referred to

MacCabe v. Westlock Roman Catholic Separate School District No. 110 (2002),[2003] 3 W.W.R. 403, 2002 ABCA 307, 2002 CarswellAlta 1627, (sub nom.McCabe v. Board of Education of Westlock (Roman Catholic Seperate)School District No. 110) 320 A.R. 194, (sub nom. McCabe v. Board ofEducation of Westlock (Roman Catholic Seperate) School District No. 110)288 W.A.C. 194, 9 Alta. L.R. (4th) 1, [2002] A.J. No. 1555 (Alta. C.A.) —referred to

MacPhail v. Karasek (2006), 33 R.F.L. (6th) 311, 69 Alta. L.R. (4th) 16, 391W.A.C. 100, 401 A.R. 100, 2006 ABCA 354, 2006 CarswellAlta 1535,[2006] A.J. No. 1453 (Alta. C.A.) — referred to

Markdale Ltd. v. Ducharme (1998), 1998 CarswellAlta 1278, 1998 ABQB 758,238 A.R. 98, [1998] A.J. No. 1014 (Alta. Q.B.) — considered

Meehan v. Holt (2011), 47 Alta. L.R. (5th) 106, 506 A.R. 208, 2011 Carswell-Alta 376, 2011 ABQB 110 (Alta. Q.B.) — referred to

Nova, an Alberta Corp. v. Guelph Engineering Co. (1988), 60 Alta. L.R. (2d)366, 89 A.R. 363, 1988 CarswellAlta 119, [1988] A.J. No. 611 (Alta.Q.B.) — referred to

Purich v. Purich (1999), 1999 CarswellAlta 515, 248 A.R. 145, 1999 ABQB212, [1999] A.J. No. 307 (Alta. Q.B.) — considered

Recovery Production Equipment Ltd. v. McKinney Machine Co. (1998), 223A.R. 24, 183 W.A.C. 24, 1998 ABCA 239, 1998 CarswellAlta 639, [1998]A.J. No. 801 (Alta. C.A.) — referred to

Robertson v. Edmonton (City) Police Service (2005), (sub nom. Robertson v.Edmonton Chief of Police) 385 A.R. 325, 16 C.P.C. (6th) 229, 53 Alta. L.R.(4th) 355, [2006] 6 W.W.R. 739, 2005 CarswellAlta 949, 2005 ABQB 499,[2005] A.J. No. 840 (Alta. Q.B.) — considered

Seidel v. Kerr (2004), 2004 ABCA 157, 2004 CarswellAlta 582, 348 A.R. 154,321 W.A.C. 154, 27 Alta. L.R. (4th) 227, [2004] 8 W.W.R. 510 (Alta.C.A.) — referred to


Toma v. Toma (1996), 1996 CarswellAlta 1132, [1996] A.J. No. 882 (Alta.Q.B.) — referred to

Yap v. Supramaniam (2006), 2006 CarswellAlta 27, 2006 ABQB 37, 26 R.F.L.(6th) 412 (Alta. Q.B.) — referred to

Young v. Young (1993), [1993] 8 W.W.R. 513, 108 D.L.R. (4th) 193, 18 C.R.R.(2d) 41, [1993] 4 S.C.R. 3, 84 B.C.L.R. (2d) 1, 160 N.R. 1, 49 R.F.L. (3d)117, 34 B.C.A.C. 161, 56 W.A.C. 161, [1993] R.D.F. 703, 1993 CarswellBC264, 1993 CarswellBC 1269, [1993] S.C.J. No. 112, EYB 1993-67111(S.C.C.) — considered

155569 Canada Ltd. v. 248524 Alberta Ltd. (1997), 1997 CarswellAlta 1234,[1997] A.J. No. 296 (Alta. Q.B.) — referred to

642718 Alberta Ltd. v. Alberta (Minister of Public Works, Supply & Services)(2005), 56 Alta. L.R. (4th) 192, [2006] 9 W.W.R. 282, 390 A.R. 193, 40R.P.R. (4th) 149, 2005 CarswellAlta 1607, 2005 ABQB 810, [2005] A.J. No.1487 (Alta. Q.B.) — referred to

Rules considered:

Alberta Rules of Court, Alta. Reg. 124/2010Generally — referred toPt. 10 — referred toPt. 12 — referred toR. 4.24 — referred toR. 4.29 — referred toR. 10.29 — consideredR. 10.31 — consideredR. 10.33 — consideredR. 10.33(2)(g) — referred toR. 10.50 — referred to

Tariffs considered:

Alberta Rules of Court, Alta. Reg. 124/2010Sched. C, Tariff of Costs — referred toSched. C, Tariff of Costs, column 3 — referred to



s. 7 — referred to

ADDITIONAL REASONS to judgment reported at Adams v. Adams (2011),2011 CarswellAlta 948, 2011 ABQB 306, 5 R.F.L. (7th) 258 (Alta. Q.B.), deal-ing with issue of costs.

William T. Aaron, Q.C., Max Blitt, for Plaintiff


Anne L. Kirker, for Mr. AaronA. Charles Ruff, for Defendant

M.C. Erb J.:

1 This Memorandum addresses the costs consequences of the trial ofthis action (2011 ABQB 306 (Alta. Q.B.) [reported at 5 R.F.L. (7th)258]). Costs were spoken to by all counsel on December 8, 2011. Writtenbriefs and authorities were earlier provided to this Court.

2 The Plaintiff seeks costs on the basis that she was largely successfulat trial. She also seeks an award of double costs from the date of herformal offer, which was rejected. The formal offer is dated December 20,2010. The trial commenced on March 14, 2011.

3 Mr. Ruff, Counsel for the Defendant, alleges “misconduct” by thePlaintiff as well as her Counsel, Mr. Aaron, and because of it, argued atthe costs hearing that the Plaintiff should either be denied costs or have acosts award made against her in favour of the Defendant. Alternatively,he disputed certain items in the Plaintiff’s bill of costs and disputed thedouble costs application arguing that the offer to settle required clarifica-tion and was not capable of acceptance.

4 This Court will first deal with quantification of costs generally, andthen with the allegations made by Defendant’s counsel and the effect ofthose allegations on the costs award.

5 Costs are addressed under Part 10 of the Alberta Rules of Court. Rule10.29 provides that generally, and while subject to a court’s discretion,the successful party is entitled to a costs award against the unsuccessfulparty. While the Defendant suggested in his brief that a party must “suc-ceed entirely” in order to be entitled to costs, this is inaccurate. Rather, aparty that is largely or substantially successful can successfully claimcosts: see for example, Yap v. Supramaniam, 2006 ABQB 37, 26 R.F.L.(6th) 412 (Alta. Q.B.).

6 It is well-established that costs in actions for matrimonial propertydivision or support should not be treated any differently than costs inother litigation: Yap v. Supramaniam, supra, para. 13; C. (D.B.) v. W.(R.M.), 2005 ABQB 898, 393 A.R. 160 (Alta. Q.B.) at para. 6; see alsoCador v. Chichak, 1998 ABQB 881 (Alta. Q.B.); aff’d 2000 ABCA 10(Alta. C.A.), where Wilson J. stated at paras. 9-10:

In my respectful opinion, costs in matrimonial matters should not asa general rule be treated any differently than costs in any other mat-


ter, subject to the exercise of discretion, which cannot be codified orpatterned into rules. I should start with the principal that ordinarilycosts should follow the event, if there has been success for one party,and not for the other, or if success has not been clearly divided.

Here the wife has succeeded. While there is some comfort in thejudgment for the husband, it cannot be said that he succeeded...Thewife should have costs.

7 Our Court of Appeal has also held that there is no reason why theordinary Rules respecting costs would not apply to matters of custody. InM. (N.) v. W. (F.), 2004 ABCA 151, 348 A.R. 143 (Alta. C.A.), the Courtheld, at para. 18:

The preceding paragraphs show that no legal authority compels thiscourt to treat costs differently in custody cases than in other cases.Nor does the legislation say otherwise. Indeed, the legislation seemsto say to treat them the same. Typically, that would mean that costsgo to the successful party.

8 MacPhail v. Karasek, 2006 ABCA 354, 401 A.R. 100 (Alta. C.A.)atpara. 8 and B. (R.) v. B. (E.), 2010 ABCA 358, 87 R.F.L. (6th) 254 (Alta.C.A.) at para. 8, come to a similar conclusion.

9 In the trial of this action, there were four principal issues: The date ofseparation; division of matrimonial property; spousal support; parentingand access. The Plaintiff achieved a substantial measure of success oneach issue. Absent any factors which may lead this Court to exercise itsdiscretion to the contrary, the Plaintiff would otherwise be entitled to anaward of costs.

10 The Plaintiff seeks costs as submitted in her bill of costs plusdisbursements.

11 Rule 10.33 provides a number of considerations that a court may takeinto account in making a costs award. These include:

a) the result of the action and the degree of success of eachparty;

b) the amount claimed and the amount recovered;

c) the importance of the issues;

d) the complexity of the action;

e) the apportionment of liability;

f) the conduct of a party that tended to shorten the action;

g) any other matter related to the question of reasonable andproper costs that the Court considers appropriate.


12 The factors applicable here include the result of the action and itscomplexity. The Defendant sought 50 per cent of the Plaintiff’s total as-sets which appeared to be in the $3 million range. The action was factu-ally complex although it was not novel in law. Proceedings were com-menced in March of 2004, with previous litigation on child custodyhaving taken place in New Brunswick where the parties resided at thetime.

13 The Plaintiff was examined for discovery twice and the Defendantwas examined once. There were numerous attendances before variouspre-trial or case management justices. The trial was 12 1/2 days long, al-though it was set for a shorter period. Numerous witnesses were calledand the parties prepared informal written submissions with their authori-ties in addition to oral argument. The Plaintiff’s submission was in therange of a dozen pages. The Defendants submitted approximately 90pages over the course of several days, requiring rebuttal. There havebeen additional attendances before this Court since trial. Supplementarywritten reasons were issued (2011 ABQB 576 (Alta. Q.B.)).

14 Given the complexity, the length of the proceedings and the value ofthe property involved, I find that the Plaintiff’s bill of costs should beassessed on Column 3 of Schedule C.

The Siebert Pask Report15 The Defendant takes issue with the amount claimed for the expert

reports of Siebert Pask. He submits that the reports were largely unneces-sary and unreasonable, given that parties could have supplied the infor-mation provided in the reports. The Defendant also takes issue with theobjectivity of the reports, claiming that the author relied solely on infor-mation provided by the Plaintiff.

16 The Plaintiff asserts that the Siebert Pask reports were necessary inorder to summarize asset and liability valuations at various dates and fur-ther assisted the Plaintiff in calculating section 7 expenses.

17 The invoices for the Siebert Pask reports total $21,386.63. Rule 10.31provides that the unsuccessful party may have to pay the reasonable costsof experts’ reports. As our Court of Appeal commented in Seidel v. Kerr,2004 ABCA 157, 348 A.R. 154 (Alta. C.A.), at para. 15 “the primaryfactor in allowing expert witness costs is whether, at the time it was in-curred, the expenditure was reasonable: Nova, an Alberta Corp. v.Guelph Engineering Co. (1988), 89 A.R. 363 (Alta. Q.B.).” The feescharged by an expert must also be reasonable: Anderson (Next Friend of)


v. Ball (1997), 214 A.R. 332 (Alta. Q.B.); Meehan v. Holt, 2011 ABQB110, 506 A.R. 208 (Alta. Q.B.).

18 I agree with the Defendant that the Siebert Pask report of June 17,2010 was largely unnecessary and could not be considered a reasonableexpense at the time was incurred. The report is largely a summary of thefinancial information provided by the Plaintiff, reduced to table form. Itis based largely on estimates using information already known to thePlaintiff or upon market information provided through real estate ap-praisals. I note that the cost of these various real estate appraisals is alsobeing claimed as disbursements. The report largely reorganised informa-tion which existed in separate forums. As Rowbotham J.A. noted in herreasons for the leave application, 2010 ABCA 256 (Alta. C.A. [In Cham-bers]), at para. 12: “Mr. Aaron, on behalf of Dr. Adams, described thereport as a list of assets rather than an opinion.” The list of assets wasalready known to the Plaintiff and it was not reasonable to incur such anexpense simply to have them restated in a different format.

19 However, certain aspects of the reports - namely calculations of thenotional income tax and disposition costs that would incur if the invest-ment portfolio held by the Plaintiff’s professional corporation was dis-tributed - constitute a reasonable and proper expense. It was necessaryfor the Plaintiff to seek out an expert in order to provide this information,and it was of assistance to the Court.

20 The authors of the reports have billed 85 hours, with Ms. Pask billingapproximately $400 per hour and Ms. Askham billing $250 per hour.Given the nature of much of the work preformed, I find this amount ex-cessive. I find that approximately one third of the information containedin the reports was information that the Plaintiff required the services ofan expert to assist within this action. This portion of the invoice consti-tutes a reasonable and proper expense. As such, one third of the SiebertPask invoice represents a disbursement properly payable by theDefendant.

Formal Offer of Settlement21 The Plaintiff submits that because the Defendant rejected a formal

offer of judgment which she bettered at trial, she should have doublecosts after December 20, 2010. The Defendant counters that because theoffer was deficient, it was incapable of acceptance. He claims that theoffer was not bona fide and amounts to a mere litigation tactic. Rules4.24 - 4.29 govern formal offers of settlement.


22 The law is clear that proposals set forth in an offer must be unequivo-cal. As this Court has stated “...consequences of the rules as to costs con-tained in [then] Pt. 12 of the Rules of Court are punitive and thereforedemand a very high degree of certainty and exactness”: Laframboise v.Billett (1991), 81 Alta. L.R. (2d) 285 (Alta. Q.B.) at para. 3. I find thatthe offer made by the Plaintiff satisfies these requirements.

23 The offer in question would have allowed the Defendant to keep allreal and personal property he owned. He would have received $300,000with no obligation to pay retroactive child support and no obligation topay ongoing child support for a three-year period, nor any obligation topay extraordinary costs. Pursuant to the offer, each party was to beartheir own costs. Custody of the children was to reflect the recommenda-tions in Dr. Fong’s report.

24 The offer constitutes a genuine compromise on behalf of the Plaintiff:see Kerr v. Kerr, 2001 ABCA 152, 293 A.R. 384 (Alta. C.A.). I find thatit was made with an intention to bring the litigation to a close. The offeras drafted clearly outlined the terms of the proposed settlement, notwith-standing minor typographical errors which are of no import.

25 It is clear that the cumulative effect of the judgment was more favour-able to the Plaintiff than was her offer. On the facts before me, there areno circumstances that would lead this Court to exercise its discretion todecline to award double costs when the Plaintiff has bettered her offer.

26 The Defendant also submitted that “dealing with an offer would dis-tract away from the Defendant and his counsel from doing importantnecessary trial preparation. It would waste the Defendant’s and counsel’stime and the Defendant’s money.” With respect to the Defendant, suchan approach ignores the whole rationale behind settlement offers whichis to reduce the costs of litigation and encourage the early resolution ofdisputes.

27 While an award of double costs is significant, “[i]n the absence ofexceptional circumstances, a court should not hesitate to award appropri-ate costs even if the result of the costs award would be to deprive a liti-gant of the financial benefit of the substantive litigation”: Purich v.Purich, 1999 ABQB 212, 248 A.R. 145 (Alta. Q.B.) at para. 24. As such,the Plaintiff is awarded double costs (excluding disbursements) for thosesteps taken after the offer was served.

28 I have read the Plaintiff’s G.S.T. recovery affidavit and exercise mydiscretion to award G.S.T. on the Schedule C fees.


Allegations of misconduct

a) costs against the Plaintiff Dr. Adams29 A court may exercised its discretion to reduce or eliminate costs

awarded to a successful party where it makes a finding of misconduct:Rule 10.33(2)(g); Toma v. Toma, [1996] A.J. No. 882 (Alta. Q.B.) para.25; 642718 Alberta Ltd. v. Alberta (Minister of Public Works, Supply &Services), 2005 ABQB 810, 390 A.R. 193 (Alta. Q.B.); Jackson v.Trimac Industries Ltd. (1993), 138 A.R. 161 (Alta. Q.B.).

30 Mr. Ruff has alleged misconduct by both the Plaintiff and her solici-tor, Mr. Aaron. Specifically, Mr. Ruff has claimed that the Plaintiff com-mitted the following acts amounting to misconduct:

i) opposing the Defendant’s application for an advance of$25,000 to finance the litigation;

ii) failure to comply with certain undertakings given duringdiscovery about value of her RRSPs and out-of- provincehealth care records;

iii) cutting back the amount of time the Defendant was spend-ing with the children in 2005;

iv) providing false information to Dr. Fong for the bilateralparenting report; and

v) lying in her testimony to this Court.31 I find that the allegations of dishonesty and misconduct directed at the

Plaintiff are grounded in opinion as opposed to fact and have not beenestablished on the evidence. I note that the Plaintiff was entitled to - andwas successful in - opposing the Defendant’s application for an advance.This distinguishes the case here from Trimac Industries, supra, where theCourt found that an action was forced by an injured party to gain whatwas rightfully his.

32 On the undertakings, the Defendant’s allegation about a discrepancyin value of the RRSPs was addressed at trial and in the Siebert Pask re-port. The undertaking relating to health care records of payment outsideAlberta was already addressed by the case management justice and noOrder was made. As for allegations of misconduct regarding parentingtime, I cannot find any action of the Plaintiff that could be classified asmisconduct deserving of a costs sanction.

33 Lastly, I do not agree with the Defendant that the Plaintiff was lessthan truthful with either Dr. Fong or with this Court. I found her to be


very forthright and credible in giving her evidence. There is nothing inthe submissions put forward by the Defendant that would amount to spe-cial circumstances leading this Court to exercise its discretion to deny theaward of costs otherwise payable to the Plaintiff.

b) costs against Mr. Aaron34 The allegations directed at Mr. Aaron were very serious and necessi-

tated the Alberta Lawyers Insurance Association to retain Anne L. Kirkeras counsel for Mr. Aaron.

35 Mr. Ruff argued that Mr. Aaron committed the following alleged actsof misconduct and dishonesty which he argued should attract costs con-sequences, specifically that he:

i) misconducted himself at a hearing during case managementbefore Justice McDonald;

ii) received privileged documents from the Defendant’s for-mer counsel, Ms. Shennette, after she was no longer hadconduct of the file; and

iii) improperly objected to a question put to Ms. Lourdes-Bel-tram during cross examination and in doing so coached thewitness on a critical point of evidence.

36 Each allegation will be addressed separately.37 Mr. Ruff alleges that Mr. Aaron misconducted himself by misrepre-

senting to the case management justice on July 20th that Mr. Ruff hadtaken over conduct of the file when the latter was only in the process oftransitioning the file from Ms. Shennette. In addition, Mr. Ruff allegesthat during this meeting Mr. Aaron deceived the Court by failing to ad-vise that the Siebert Pask report was served late in relation to the previ-ously set September 20, 2010, trial date.

38 I have reviewed the correspondence between the parties with respectto this allegation, as well as the transcript of the July 20th case manage-ment meeting. I do not find that Mr. Aaron made a misrepresentation tothe Court in indicating that Mr. Ruff had assumed conduct of the file.The discussion at the time focussed on the fact that the file was in transi-tion. Ms. Shennette was present during the meeting requesting that shebe removed as the solicitor of record. The transcripts indicate that it wasobvious to all parties and to the Court that Mr. Ruff was not yet officiallythe Defendant’s counsel. I find nothing misleading in this exchange.


39 Turning to the Siebert Pask report, while the time of its service wasnot specifically addressed, there is nothing in the transcript to suggestthat Mr. Aaron was being elusive about it. He told the Court that theApril trial date did not go ahead. While the fact that the report was filedlate given a September trial date was not raised, there was no request forfurther explanation. In addition, Ms. Shennette had already accepted ser-vice of the report without objection. Given the timing of the transition ofthe file, the case management justice addressed late filing of any subse-quent expert reports. There is nothing to suggest that the outcome wouldhave been different had he been specifically advised of the timing of theSiebert Pask report.

40 On the issue claiming Mr. Aaron improperly received privileged doc-uments from former counsel, Ms. Shennette after she had been removedas counsel of record., the file discloses that Mr. Aaron had asked Ms.Shennette to provide him with replacement correspondence that he hadmisplaced from his file. Ms. Shennette faxed to his office certain docu-mentation which did include some privileged correspondence betweenMr. Adams and Ms. Shennette, as his counsel. I accept that Mr. Aaron atno time requested privileged correspondence. It is clear that the corre-spondence was sent in error.

41 Mr. Ruff followed up with Mr. Aaron about why the correspondencewas sent and requested copies of everything Ms. Shennette had providedto Mr. Aaron. Mr. Aaron explained that he had been attempting to recon-struct his file and that copies of all correspondence that he had receivedwould be on the file that Mr. Ruff had received from Ms. Shennette. ThisCourt has reviewed the correspondence between Messrs. Aaron and Ruffon this point as well as the transcripts of the February 11, 2001 proceed-ings before Justice Strekaf. Following submissions, Strekaf J. instructedMr. Aaron to provide Mr. Ruff with copies of the documents he had re-ceived from Ms. Shennette and instructed him to provide a letter con-firming that he would not be referring to any material contained in thecorrespondence unless he gave Mr. Ruff advanced notice. Mr. Aaroncomplied with those instructions as disclosed in his letter of March 8,2011 to this Court, which also explains the return of documents that hadbeen inadvertently faxed. Strekaf J. refused to make an order directingthat Mr. Aaron be cross-examined on the issue. Of note, she stated (at p.17 lines 2-7):

...I accept Mr. Aaron’s explanation as an officer of the court as towhat happened. That he requested documents with respect to a — acouple of month period and that - and I also accept his explanation


that at the time, while in hindsight he - he had - wasn’t putting hismind to the fact that Ms. Shennette was not acting on this particularmatter. So I accept that particular explanation.

42 While subsequent correspondence clearly shows that Mr. Ruff did notaccept Mr. Aaron’s explanation as to what occurred, that is of no import.Justice Strekaf found no impropriety and this Court has no quarrel withher finding. While I find that Mr. Aaron erred in judgement in requestingdocumentation from Ms. Shennette when he was aware that she was nolonger the solicitor of record, in the circumstances this does not amountto serious ethical misconduct nor is it the type of conduct that would leadthis Court to exercise its discretion in varying the award of costs.

43 Mr. Ruff’s had also alleged that Mr. Aaron improperly objected to aquestion during the cross-examination of Maria Lourdes-Beltram. Hespecifically claims that Mr. Aaron suggested a response to the witness inobjecting to a question put to her regarding the coordination of the par-ties’ schedules. As the Justice presiding over the trial, had I believed thatMs. Lourdes-Beltram’s evidence had become tainted or should be dis-counted altogether on the basis of the objection, I would have made thatclear. This situation is not sufficient to warrant a costs penalty.

44 In summary, the Defendant has failed to substantiate any of hisclaims that Mr. Aaron conducted himself unethically or is otherwiseguilty of conduct deserving of an award of costs.

c) costs against Mr. Ruff45 Ms. Kirker argued at the costs hearing that while Mr. Aaron’s actions

do not constitute misconduct attracting a costs penalty, the unsubstanti-ated allegations of misconduct and dishonesty levelled against Mr. Aaronby Mr. Ruff are sufficiently serious to compel a costs award to cover herrepresentation of Mr. Aaron.

46 The Court of Appeal of Alberta recently noted that courts have oftenvisited heavy costs on parties making serious allegations of improprietieswhich are not proven: Recovery Production Equipment Ltd. v. McKinneyMachine Co., 1998 ABCA 239, 223 A.R. 24 (Alta. C.A.) at para. 103.

47 Perhaps Mr. Ruff’s approach throughout his conduct of the Defen-dant’s file is best summarized by Ms. Kirker during argument at thiscosts hearing:

During the course of this litigation, from the time Mr. Ruff first be-came involved, persons who have opposed or disagreed with the De-fendant’s position have been subjected to groundless accusations of


serious misconduct, intentional wrongdoing. These accusations havebeen levelled at Defendant’s former counsel, Ms. Shennette, thePlaintiff’s current counsel, Mr. Aaron, the Plaintiff herself, witnesseswho have testified on behalf of the Plaintiff at trial, the Court, andnow me, appearing on behalf of Mr. Aaron. It seems that if you disa-gree with the Defendant, Mr. Ruff submits that you are guilty ofmisconduct.

48 I agree with Ms. Kirker that the Court cannot countenance this ap-proach to ligation by counsel. It is inappropriate and unprofessional. Iagree that the unsubstantiated allegations of serious misconduct and dis-honesty levelled against Mr. Aaron are in themselves serious enough towarrant the payment of the costs of Ms. Kirker’s representation of Mr.Aaron.

49 During oral argument, Ms. Kirker submitted that it was within thisCourt’s discretion as to whether a costs award should be on either a so-licitor-client basis or whether the costs should be payable by the solicitorpersonally. Mr. Ruff was present in the courtroom and must be taken tohave heard her submission. He had an opportunity to respond but did notdo so.

50 It is well-established that costs repose within the discretion of thecourt and that such discretion must be exercised judiciously and appro-priately given the circumstances of the case: MacCabe v. WestlockRoman Catholic Separate School District No. 110, 1999 ABQB 666, 243A.R. 280 (Alta. Q.B.) at para. 61, 2002 ABCA 307, 320 A.R. 194 (Alta.C.A.), at para. 12. This discretion allows the court on its own motion tomake an award of costs against a solicitor personally: 155569 CanadaLtd. v. 248524 Alberta Ltd., [1997] A.J. No. 296 (Alta. Q.B.) at para. 20.See also Rule 10.50.

51 It is notable to this Court that although Mr. Adams has been repre-sented in the past by various counsel, the accusatorial approach that waspursued in this litigation more recently appears to have begun contempo-raneously with Mr. Ruff taking conduct of his file.

52 Mr. Ruff clearly chose to approach litigation using intimidation andbullying tactics as his primary strategy. Anyone, be it counsel, party, wit-ness or even the Court, who disagreed with Mr. Ruff found themselveson the receiving end of a charge of “serious misconduct” or was eithernamed or threatened to be named as a party in separate litigation. It isclear to this Court that these tactics were employed in an attempt to gainsome sort of litigation advantage.


53 The type of conduct which might attract such a costs award was thesubject of comment in Robertson v. Edmonton (City) Police Service,2005 ABQB 499, 385 A.R. 325 (Alta. Q.B.), (per Slatter J.) at para. 21:

It is apparent from the case law that there must be some finding ofpositive misconduct by counsel before costs will be awarded againsthim or her personally. It is not enough that the action was unsuccess-ful. It is not enough that the client advanced unmeritorious claims, orinstructed counsel to pursue the matter in an undesirable way. Nor isit sufficient that counsel did not act in an exemplary fashion. A mereerror of judgment, or even negligence, is not enough. Obviously, le-gitimate tactical decisions by counsel on the conduct of the litigationdo not justify personal cost awards. The conduct of the barrister mustdemonstrate or approach bad faith, or deliberate misconduct, or pa-tently unjustified actions, although a formal finding of contempt isnot needed: Shum v. Mitchell, supra, at para. 15; Brown v. Silvera,supra, at para. 32. [emphasis added]

54 As noted already in these reasons, Mr. Ruff’s conduct went well be-yond his dealings with Mr. Aaron and included allegations levelled at Dr.Adams, other witnesses, other counsel and this Court. While Loates v.Loates, 2000 ABQB 253, 264 A.R. 287 (Alta. Q.B.), dealt in part withunjustifiable delay, the Court’s commentary on a solicitor’s questionableconduct and attempts to engage both the court and opposing counsel inpersonal debate is applicable here. Justice Lee had this to say at paras. 23and 27:

What these letters show is a discourteous and disrespectful attitudetowards the Court, and show an inability to deal properly with thesometimes inevitable disagreements between counsel and the Benchrespecting the law. When counsel believe the court is mistaken, theresponse is either to appeal, or in the case of the settling of Orders, toutilize the procedures outlined in the Rules of Court to inquirewhether the Court has been mistaken. Inflammatory criticisms of thefairness and integrity of the Court in letters to opposing counsel, car-bon copied to the client, and certainly the tone of the comments inthe letter directly to the Court, edge very close to a contempt of thecourt.

[...]

However, the Court must be extremely cautious in exercising itspowers of contempt, particularly in cases of counsel criticizing theCourt. Discourtesy and unprofessionalism on the part of counsel doesnot necessarily reach the point of contempt, unless it can be seen asan interference with the administration of justice. It is my view that


such issues of discourtesy and unprofessional conduct are better ad-dressed by the Law Society.

55 Like Justice Lee, I am far less concerned about the effect of Mr.Ruff’s conduct on this Court than its effect on the opposing side. InMarkdale Ltd. v. Ducharme, 1998 ABQB 758, 238 A.R. 98 (Alta. Q.B.)Justice Beilby granted costs personally against counsel on a number ofgrounds, including “generally acting in bad faith” as well as “unfoundedaccusations of misconduct” against opposing counsel: paras. 67 and 72.Of particular note here are her closing comments at para. 75:

[the solicitor’s] conduct was improper, not negligent. His unsubstan-tiated allegations of impropriety against [opposing counsel] duringthe case management process, and his excessive correspondence ontrivial matters, in the context of all that had gone on before, imbed-ded in his history of conduct as a whole caused Lee, J. to becomeconcerned that the case management process was being corrupted.Contemporary Courts cannot operate and modern litigation proceedwithout access to efficient and effective case management wherenecessary. Actions which debase or waste that resource must be ad-dressed and deterred.

56 While awarding costs against counsel personally may be consideredan extraordinary remedy and is not one which should be made casually, Ifind it is warranted on the facts before this court. Mr. Ruff’s conductwent beyond excessive zeal for the case: it was deliberate, in bad faith,unprofessional and unjustified.

57 Although numerous individuals associated with this case found them-selves on the receiving end of allegations of unethical conduct or impro-priety, it is Mr Ruff’s complete failure to substantiate the allegations of“extremely egregious legal and ethical misconduct” made against Mr.Aaron which attracts a costs award here. It is this type of irresponsibleconduct which weakens the perception of the justice system as a whole.

58 Allegations of unethical conduct, misrepresentations before the courtand sharp practice should not be made lightly, given the effect such state-ments may have on a lawyer’s reputation, and, in direct connection, hislivelihood. As was noted by the majority in Hill v. Church of Scientologyof Toronto, [1995] 2 S.C.R. 1130 (S.C.C.) at para. 118:

In the present case, consideration must be given to the particular sig-nificance reputation has for a lawyer. The reputation of a lawyer is ofparamount importance to clients, to other members of the professionand to the judiciary. A lawyer’s practice is founded and maintainedupon the basis of a good reputation for professional integrity and


trustworthiness. It is the cornerstone of a lawyer’s professional life.Even if endowed with outstanding talent and indefatigable diligence,a lawyer cannot survive without a good reputation.

59 The costs of having Ms. Kirker attend to address the charges of mis-conduct should never have been incurred, given the spurious allegationsof unethical behaviour. As confirmed by (then) McLachlin J. in Young v.Young, [1993] 4 S.C.R. 3 (S.C.C.) the basic principle on which a costsaward is granted remains compensatory and costs against a solicitor per-sonally remains an exceptional remedy: at para. 254. See also Jackson v.Trimac Industries Ltd., supra.

Order as to Costs60 In summary, the Plaintiff will have her bill of costs on Column 3 of

Schedule C, plus GST. She is also entitled to her disbursements asclaimed, excepting the Siebert Pask report to which she is entitled to onethird of that invoice. Since the Plaintiff bettered her offer following trial,she is entitled to double costs incurred after December 20, 2010.

61 Previous costs orders payable to the successful party in the cause,specifically the order of Rowbotham JA., are confirmed payable forth-with by the Defendant.

62 Given Mr. Ruff’s unsubstantiated allegations of serious misconductand dishonesty, I order that Mr. Ruff personally pay the costs of Ms.Kirker’s representation of Mr. Aaron throughout these proceedings,forthwith. All costs payable by the Defendant, Mr. Adams may be set offagainst any financial award he received arising from the trial.

Costs awarded.


[Indexed as: Foster-Jacques v. Jacques]

Sharon Foster-Jacques (Petitioner) v. Hector Jacques(Respondent)

Nova Scotia Supreme Court

Docket: 1201-064463

2011 NSSC 290

Beryl A. MacDonald J.

Heard: June 28, 2011

Judgment: July 13, 2011

Judges and courts –––– Jurisdiction — Jurisdiction of court over own pro-cess — Sealing files –––– Parties were involved in divorce proceeding — Partiesreceived request from media to examine their file — Parties brought applicationfor order sealing contents of their divorce file — Application granted — Parties’argument that file should be sealed to protect their reputation did not constitutesocial value or public interest of superordinate importance — However, therewas public interest and social value embedded in expectation of privacy andconfidentiality for personal identifiers — Risk of identity theft was real — Otherthan removing personal identifier information from documents required to befiled, there was no means by which to protect this information except to issuesealing order — Salutary effects of sealing order outweighed its deleteriouseffects.

Family law –––– Divorce — Practice and procedure — Miscellaneous ––––Sealing orders — Parties were involved in divorce proceeding — Parties re-ceived request from media to examine their file — Parties brought applicationfor order sealing contents of their divorce file — Application granted — Parties’argument that file should be sealed to protect their reputation did not constitutesocial value or public interest of superordinate importance — However, therewas public interest and social value embedded in expectation of privacy andconfidentiality for personal identifiers — Risk of identity theft was real — Otherthan removing personal identifier information from documents required to befiled, there was no means by which to protect this information except to issuesealing order — Salutary effects of sealing order outweighed its deleteriouseffects.

Cases considered by Beryl A. MacDonald J.:

Canadian Broadcasting Corp. v. New Brunswick (Attorney General) (1996), 2B.H.R.C. 210, 2 C.R. (5th) 1, 110 C.C.C. (3d) 193, [1996] 3 S.C.R. 480, 139D.L.R. (4th) 385, 182 N.B.R. (2d) 81, 463 A.P.R. 81, 39 C.R.R. (2d) 189,

Foster-Jacques v. Jacques 307

203 N.R. 169, 1996 CarswellNB 462, 1996 CarswellNB 463, EYB 1996-67336, [1996] S.C.J. No. 38 (S.C.C.) — followed

Dagenais v. Canadian Broadcasting Corp. (1994), 1994 CarswellOnt 1168,1994 SCC 102, 34 C.R. (4th) 269, 20 O.R. (3d) 816 (note), [1994] 3 S.C.R.835, 120 D.L.R. (4th) 12, 175 N.R. 1, 94 C.C.C. (3d) 289, 76 O.A.C. 81, 25C.R.R. (2d) 1, 1994 CarswellOnt 112, EYB 1994-67668, [1994] S.C.J. No.104 (S.C.C.) — followed

Edmonton Journal v. Alberta (Attorney General) (1989), 1989 SCC 133, [1990]1 W.W.R. 577, [1989] 2 S.C.R. 1326, 64 D.L.R. (4th) 577, 102 N.R. 321, 71Alta. L.R. (2d) 273, 103 A.R. 321, 41 C.P.C. (2d) 109, 45 C.R.R. 1, 1989CarswellAlta 198, 1989 CarswellAlta 623, [1989] S.C.J. No. 124, EYB1989-66926 (S.C.C.) — considered

John Doe v. Joe Smith (2001), 2001 CarswellAlta 443, 200 D.L.R. (4th) 186,288 A.R. 184, 11 C.P.C. (5th) 121, 2001 ABQB 277, [2001] A.J. No. 428(Alta. Q.B.) — referred to

MacIntyre v. Nova Scotia (Attorney General) (1982), [1982] 1 S.C.R. 175, 49N.S.R. (2d) 609, 40 N.R. 181, 1982 CarswellNS 21, 26 C.R. (3d) 193, 96A.P.R. 609, 132 D.L.R. (3d) 385, (sub nom. Nova Scotia (Attorney General)v. MacIntyre) 65 C.C.C. (2d) 129, 1982 CarswellNS 110 (S.C.C.) —considered

R. v. Find (2001), 2001 SCC 32, 2001 CarswellOnt 1702, 2001 CarswellOnt1703, 269 N.R. 149, 42 C.R. (5th) 1, 154 C.C.C. (3d) 97, 199 D.L.R. (4th)193, 146 O.A.C. 236, [2001] 1 S.C.R. 863, 82 C.R.R. (2d) 247, [2001] S.C.J.No. 34, REJB 2001-24178 (S.C.C.) — followed

R. v. Mentuck (2001), 158 C.C.C. (3d) 449, 205 D.L.R. (4th) 512, 163 Man. R.(2d) 1, 269 W.A.C. 1, 2001 CarswellMan 535, 2001 CarswellMan 536, 2001SCC 76, 47 C.R. (5th) 63, [2002] 2 W.W.R. 409, 277 N.R. 160, [2001] 3S.C.R. 442, [2001] S.C.J. No. 73 (S.C.C.) — considered

R. v. Spence (2005), 2005 SCC 71, 2005 CarswellOnt 6824, 2005 CarswellOnt6825, 342 N.R. 126, [2005] 3 S.C.R. 458, 206 O.A.C. 150, 202 C.C.C. (3d)1, 259 D.L.R. (4th) 474, 33 C.R. (6th) 1, 135 C.R.R. (2d) 318, [2005] S.C.J.No. 74 (S.C.C.) — followed

Sierra Club of Canada v. Canada (Minister of Finance) (2002), 287 N.R. 203,(sub nom. Atomic Energy of Canada Ltd. v. Sierra Club of Canada) 18C.P.R. (4th) 1, 44 C.E.L.R. (N.S.) 161, (sub nom. Atomic Energy of CanadaLtd. v. Sierra Club of Canada) 211 D.L.R. (4th) 193, 223 F.T.R. 137 (note),20 C.P.C. (5th) 1, 40 Admin. L.R. (3d) 1, 2002 SCC 41, 2002 CarswellNat822, 2002 CarswellNat 823, (sub nom. Atomic Energy of Canada Ltd. v.Sierra Club of Canada) 93 C.R.R. (2d) 219, [2002] 2 S.C.R. 522, [2002]S.C.J. No. 42, REJB 2002-30902 (S.C.C.) — considered

Vancouver Sun, Re (2004), (sub nom. Application Under Section 83.28 of theCriminal Code, Re) 322 N.R. 161, 21 C.R. (6th) 142, 33 B.C.L.R. (4th) 261,[2004] 2 S.C.R. 332, 2004 SCC 43, 2004 CarswellBC 1376, 2004 Car-


swellBC 1377, (sub nom. Application Under Section 83.28 of the CriminalCode, Re) 199 B.C.A.C. 1, 120 C.R.R. (2d) 203, [2005] 2 W.W.R. 671, (subnom. R. v. Bagri) 184 C.C.C. (3d) 515, (sub nom. R. v. Bagri) 240 D.L.R.(4th) 147, [2004] S.C.J. No. 41, REJB 2004-66287 (S.C.C.) — considered

W. (C.) v. M. (L.G.) (2004), 2004 CarswellBC 2756, 2004 BCSC 1499, 36B.C.L.R. (4th) 181 (B.C. S.C.) — considered


Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5Generally — referred to

Judicature Act, R.S.A. 1980, c. J-1s. 30(1) — considereds. 30(2) — considered

Personal Information International Disclosure Protection Act, S.N.S. 2006, c. 3Generally — referred to

Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5Generally — referred to

Rules considered:

Civil Procedure Rules, N.S. Civ. Pro. RulesR. 59.60 — consideredR. 59.60(3) — consideredR. 59.60(4) — consideredR. 59.60(5) — consideredR. 59.60(6) — consideredR. 85.04(1) — considered

APPLICATION by husband and wife for order sealing contents of their divorcefile.

Gordon Kelly, Adrienne Bowers, for ApplicantWilliam L. Ryan, Q.C., Sarah Scott, for RespondentAlan V. Parish, Q.C., for Coltsfoot Publishing Limited

Beryl A. MacDonald J.:

1 The Petitioner and the Respondent in this Divorce proceeding haveboth requested an order to seal the contents of their divorce file. Theyhave done so after receiving a request from the media to examine that

Foster-Jacques v. Jacques Beryl A. MacDonald J. 309

file. The media request was made according to the provisions of CivilProcedure Rule 59.60. The relevant provisions of that rule are:

(4) A person, other than a party or counsel for a party, who requestsaccess to a court file must give written notice to the parties no lessthan 20 days before obtaining access.

(5) A party may make a motion for an order sealing all or part of thecourt file after delivery of written notice of the request for access.

(6) The person requesting access to the court file must be grantedaccess, subject to any terms or conditions the judge specifies, unlessa party makes a motion within the required time.

2 Civil Procedure Rule 59:60 gives the court discretion to seal a file: (3) A judge may order that a court file or any part of the file or anydocument contained in the file be sealed, treated as confidential, andnot made available to the public.

3 Justice Dixon in MacIntyre v. Nova Scotia (Attorney General), [1982]1 S.C.R. 175 (S.C.C.) said:

70 Undoubtedly every court has a supervisory and protectingpower over its own records. Access can be denied when theends of justice would be subverted by disclosure or the judi-cial documents might be used for an improper purpose. Thepresumption, however, is in favour of public access and theburden of contrary proof lies upon the person who woulddeny the exercise of the right.

4 Neither of the parties to this divorce proceeding is requesting exclu-sion of the public on the date of the hearing, nor are they seeking a publi-cation ban. Their request is to keep the documents contained in the courtfile private. However, they recognize that some or all of the contents ofthe documents in this file may be disclosed if they are entered as evi-dence during a hearing or referenced in the decision of this court.

5 Civil Procedure Rule 59.60 does not provide any factors that are to beconsidered in the exercise of the discretion provided.

6 Civil Procedure Rule 85.04 (1) provides some direction: A judge may order that a court record be kept confidential only if thejudge is satisfied that it is in accordance with law to do so, includingthe freedom of the press and other media under section 2 of the Ca-nadian Charter of Rights and Freedoms and the open courts principle.

7 I take this direction as a requirement for a judge to consider the prin-ciples expressed in Dagenais v. Canadian Broadcasting Corp., [1994] 3S.C.R. 835 (S.C.C.), Canadian Broadcasting Corp. v. New Brunswick


(Attorney General), [1996] 3 S.C.R. 480 (S.C.C.), R. v. Mentuck, [2001]3 S.C.R. 442 (S.C.C.), Sierra Club of Canada v. Canada (Minister ofFinance), [2002] 2 S.C.R. 522 (S.C.C.), and Vancouver Sun, Re, [2004]2 S.C.R. 332 (S.C.C.).

8 Dagenais, Canadian Broadcasting Corp., and Mentuck, involvedpublication bans in criminal proceedings. Vancouver Sun involved an incamera hearing during which the courtroom was closed to the press andthe public. Sierra Club of Canada discussed the protection to be affordedto “confidential documents”.

9 The decision in Sierra Club of Canada does require the court, in acivil proceeding, when asked to issue a confidentiality order, to considerthe underlying principles set out in Dagenais and CanadianBroadcasting Corp.

10 These cases suggest a confidentiality order should only be grantedwhen

(a) the order is necessary to prevent a serious risk to an importantinterest in the context of litigation because reasonably alternativemeasures will not prevent the risk; and

(b) the salutary effects of the confidentiality order, including the ef-fects on the interest being protected, outweigh its deleterious ef-fects, including the effect on rights of free expression and accessi-bility to open court proceedings.

11 The “interest” to be protected must be one in which the public in gen-eral has an interest or has a stake. As described in Sierra Club of Can-ada:

55...The interest in question cannot merely be specific to the partyrequesting the order; the interest must be one which can be expressedin terms of a public interest in confidentiality. For example, a privatecompany could not argue simply that the existence of a particularcontract should not be made public because to do so would cause thecompany to lose business, thus harming its commercial interests.However, if, as in this case, exposure of information would cause abreach of a confidentiality agreement, then the commercial interestaffected can be categorized more broadly as the general commercialinterest of preserving confidential information. Simply put, if there isno general principle at stake, there can be no “important commercialinterest” for the purposes of this test.


12 The “necessity” branch of these requirements set out in Dagenais andCanadian Broadcasting Corp., and confirmed in Sierra Club of Canadarequires consideration of three elements.

1. The serious risk in question must be a real and substantialrisk well grounded in evidence.

2. References to the “proper administration of justice” mustbe carefully interpreted so as not to allow the concealmentof an excessive amount of information.

3. Whether reasonable alternatives are available must be care-fully explored and any order granted must be restrict onlywhat is necessary to prevent the risk.

13 Freedom of the press is fundamental to the open court principle. Thepress provides an important function by informing the public about courtproceedings. Family law proceedings are of great interest to the public.The public should be informed about the substance of those proceedings.In Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R.1326 (S.C.C.), (a case involving section 30 (1) and (2) of the AlbertaJudicature Act, R.S.A. 1980, c J-1 that prohibited publication of mostdetails of matrimonial proceedings), Justice Cory said:

13. The sweeping effect of the prohibition can be readily seen. Theterm “or in relation to a marriage” is a broad one. It encompassesmatters pertaining to custody of children, access to children, divisionof property and the payment of maintenance. All are matters of pub-lic interest yet the evidence given on any of these issues cannot bepublished. The dangers of this type of restriction or obvious. Mem-bers of the public are prevented from learning what evidence is likelyto be called in a matrimonial cause, what might be expected by wayof division of property and how that evidence is to be put forward.Neither would they be aware of what questioning might be expected.These are matters of great importance to those concerned with theapplication a family law. It is information people might wish to havebefore they even consider consulting a lawyer. The very people whowould seem to have the greatest need to know of Family Court pro-ceedings are prevented from attaining important information by theprovisions of s. 30

. . .

27. . . Any need for the protection of privacy of witnesses or childrencould be readily accomplished by far less sweeping measures. Forexample, it could be accomplished by the exercise of discretion bythe trial judge to prohibit publication or to hold in camera hearings


[page 1347] in those few circumstances where is would be necessaryto do so in order to protect the privacy interest of the parties, theirchildren or witnesses.

14 Section 30 (1) and (2) of the Alberta Judicature Act were struck downby the Supreme Court of Canada because they were too sweeping ineffect.

15 Personal embarrassment or a general expectation that personal, healthor financial privacy will be maintained when accessing the courts is not,in itself, a reason to issue a sealing order or publication ban. (John Doe v.Joe Smith, 2001 ABQB 277 (Alta. Q.B.))

16 The privacy of witnesses, victims and innocent parties may be, in cer-tain situations, an important public interest deserving of protection.

17 In W. (C.) v. M. (L.G.), 2004 BCSC 1499 (B.C. S.C.), a civil actionfor damages for sexual assault, the applicant requested that her name ap-pear only by initial in all court documents, that the court limit the personswho could search the court file and place a prohibition against the use orpublication of any information that might disclose her identity. JusticeJoyce after reviewing a number of decisions said:

2 The application requires consideration of two different public inter-ests: maintaining open judicial proceedings and protecting victims ofsexual abuse.

. . .

9 I am satisfied, however, that this important principle of the open-ness of the court process is subject to an overarching principle: thefundamental object of the court is to see that justice is done betweenthe parties. There are circumstances where the principle of the opencourt must give way in order to achieve justice. The question is whatthose circumstances are and, if they exist, how far the principle of anopen court must yield in order to ensure that justice may be done

. . .

25 I think the following principles can be distilled from the cases Ihave referred to:

1. The principle that the court’s process must be open to publicscrutiny must give way when it is necessary to ensure thatjustice is done.

2. There must be some social value or public interest of superor-dinate importance in order to curtail public accessibility.

3. The onus is on the person seeking to restrict public accessibil-ity to demonstrate that the order is necessary in order to


achieve justice. The test is not one of convenience but ofnecessity.

4. The mayor private interest of a litigant to avoid embarrass-ment is not sufficient to displace the public interest in an opencourt process.

5. The categories of circumstances that may be viewed as con-stituting a social value of super ordinance importance shouldnot be considered closed. They include:

(a) where disclosure of the litigant’s name or identitywould effectively destroy the right of confidentiality,which is the very relief sought in the proceeding;

(b) where persons entitled to justice would be reasonablydeterred from seeking it in the court if their nameswere disclosed;

(c) where the administration of justice would be renderedimpracticable if the public were not excluded;

(d) where anonymity is necessary in order to ensure a fairtrial;

(e) where anonymity is necessary to protect innocent per-sons and little public benefit would be served by dis-closure of the names of the innocent;

(f) where disclosure of the identity of the plaintiff wouldcause that person to suffer damages in addition tothose already suffered as a result of the wrong forwhich the plaintiff is seeking compensation.

18 My first task is to determine whether, in this case, there is a socialvalue or public interest of superordinate importance. If there is not thenthese applications must be dismissed.

19 In order to understand many of the arguments advanced by the Appli-cant and the Respondent knowledge about what typically is in a fileprocessed by the Supreme Court (Family Division) is imperative. It isalso important to know that much of the information in the court filecontains what, in our electronic age, are called personal identifiers. Thisis information that can identify an individual and can permit another per-son to “assume” that individual’s identity without their knowledge orconsent (identity theft) and then use this information to gain access tobank accounts, insurance information and so on. This can happen whenan identifier is used alone, when it is combined with that person’s name,or when it is combined with another identifier. Common identifiers arethe person’s name, birth date, address, parent’s names and birth dates,


children’s names and birth dates, employers names, social insurancenumbers, and bank account and investment numbers.

20 The rules pertaining to divorce in the Supreme Court (Family Divi-sion) require a Petition for Divorce, and an Application and Intake Formto be completed in order to commence the proceeding. The Petition pro-vides place and date of birth, marriage and separation dates, dates ofbirth for all children, and current residential addresses. The Applicationcontains the same information and in addition it contains cell phonenumbers, e-mail addresses, employer’s name, address, telephone numberand e-mail address. The file will contain the marriage certificate whichdetails the parties parents’ names and other identifiers. If claims for divi-sion of property or spousal support are made, a complete list of propertywith identifying numbers, including insurance policy information, mustbe filed. If financial support is requested, a Statement of Income must becompleted to which the last three years income tax returns and notices ofassessment from the Canadian Revenue Agency must be attached as wellas two recent pay statements from all income sources. These documentsdisclose social insurance numbers. If a party owns a business or is a con-trolling shareholder in a corporation, business records, income tax re-turns etc. must be provided. If children are involved, a Parenting State-ment must be filed detailing the names and addresses of schools anddaycare facilities any associated educational or child care costs, detailsabout extracurricular activities and so on. If required documents are notplaced in the file for delivery to the other party the Divorce Petition maynot be issued. The parties have no choice in this matter. This is becausethe purpose of proceedings in the Family Division is not to “find fault”or to “right a wrong”. It is to solve the problem, (in a case such as thiswhere there are no children), of how to divide property and provide sup-port to an entitled party after a relationship has ended. This work is con-ducted in an environment that must recognize and assist a significantnumber of petitioners and respondents who are self represented. Disclo-sure of all relevant, or potentially relevant, information at the beginningof the process is therefore essential. Some of this information may neverbecome “evidence” at a hearing. For example, it may become outdated orthe parties may not need the information to place his or her requestbefore the court or they may have settled as a result of meetings withconciliators or at a judicial settlement conference where the disclosure inthe file is used to assist the parties in settlement discussions.

21 Another purpose for the collection of so much information is to per-mit the Maintenance Enforcement Program to find a payor of spousal or


child support, or to issue a garnishment against wages or income tax re-funds, or to suspend driving privileges etc.

22 The Applicant and the Respondent have raised one proposition that Ihave decided does not constitute a social value or public interest of su-perordinate importance in the context of these proceedings. They haveargued the file should be sealed to protect their reputation, and in particu-lar the Respondent’s reputation against unproven allegations that may becontained in material filed in this proceeding.

23 Every proceeding initially may consist of “unproven” allegationswhether these appear in statements of claim, or affidavits. Those whohave been changed with a criminal offence, and later found to be “notguilty” often must suffer, because of publicity, a ruined reputation that insome cases cannot be rehabilitated. Protection of one’s reputation has notbeen considered to be a social value or public interest of superordinateimportance justifying diminishment of the open courts principle. As Ihave noted, personal embarrassment or a general expectation that per-sonal, health or financial privacy will be maintained when accessing thecourts is not, in itself, a reason to seal a file.

24 The Applicant and the Respondent have argued that the public has aninterest in and expects personal identifier information contained in courtdocuments to be protected in order to prevent identity theft. I have de-cided this is a public interest of superordinate importance. It is a privacyinterest. In addition society values prevention of identity theft.

25 The solicitors for the applicants have argued their clients and the pub-lic expect personal identifier information to remain private and confiden-tial. Support for this argument can be found in the way government itselftreats some of this information. For example, not every government de-partment has ready access to income tax returns and a person is not, inevery case, compelled to provide a social insurance number.

26 Forbidding the publication or use of personal identifier informationby those who would examine a court file does not properly address theprivate and confidential nature of this information, nor the concern aboutits potential misuse. Little that is filed in the Family Division is filedvoluntarily. Most of the material in the file must be filed by the rules ofcourt and, on occasion, court order. The court cannot police the later useof personal identifiers by a member of the public including the media,who has viewed material containing this information. Identify theft is aknown risk and a person should not be exposed to this risk when he orshe accesses the justice system as he or she must in order to obtain a


divorce. This is not to say the risk of misuse by court staff who haveaccess is not recognized. However, staff are under different regulatorysystems than those to which the public may be subject and there are im-portant reasons why they require access to the file that reasonably sug-gest an access requirement.

27 The media argues I cannot make any decision about the expectationsof the public or the potential risk of identity theft without evidence pro-vided by, for example, a polling company and a police officer. In addi-tion the parties themselves have not provided an “affidavit” with factssupporting the proposition that they have an expectation of privacy inrespect to their personal identifiers.

28 I have accepted the submissions of counsel in respect to their client’sexpectations. Expectations are not facts. Affidavits are to provide facts.However, in this situation perhaps an expectation is a fact, and if so Iaccept those expectations without the necessity of proof by way of affi-davit because it flows naturally from the applications made by the par-ties. If this was not their expectation why make the applications to sealthe court file? These are facts that should have been admitted by the me-dia if the purpose of the Nova Scotia Civil Procedure Rules are to beproperly applied - that purpose is:

1.01 These Rules are for the just, speedy, and inexpensive determi-nation of every proceeding.

29 Failure to recognize the obvious and to require “strict proof” mayhave its place in some proceedings. However, in this court in particular,where parties financial capacities are so often very limited, blind adher-ence to an adversarial process may work an unnecessary injustice. I be-lieve I am permitted to recognize the obvious.

30 I have before me no polling information about the public’s expecta-tion that personal identifier information will be kept private and confi-dential by those who gather it. If the court could only determine publicinterest or recognize a social value after receiving information from anorganization providing polling information, or from learned researchersor other “experts”, the legal process might come to a halt or becomecompletely redundant because most people could not afford the financialburdens placed upon them to bring forth this evidence.

31 I am satisfied in determining this issue I do not have to be a blankslate. There is information available to me that is available to every per-son in this province. Of particular significance is the fact that the Prov-ince of Nova Scotia and the Government of Canada have enacted legisla-


tion to protect personal identifiers, for example, the Freedom ofInformation and Protection of Privacy Act, S.N.S. 1993 c.5, the PersonalInformation International Disclosure Protection Act, S.N.S. 2003 c.3.and the Personal Information Protection and Electronic Documents Act,S.C. 2000 c.5. I accept this as evidence about the public’s expectationand the public and social interest in this issue.

32 The risk of identity theft is real. I should not have to wait until itoccurs to recognize that risk. I do not need a police officer to inform meabout this risk. The concern about identity theft is frequently the topic ofdiscussion in newspapers, in government departments, and in judicialcommittees (for example the Canadian Judicial Council approved a doc-ument “Use of Personal Information in Judgments and RecommendedProtocol” in March 2005). Considering the devastating consequencesthat can result to an individual whose identity is stolen, identity theftconstitutes a substantial risk though at present it may infrequently occur.It is important that it remain an infrequent event and that all efforts bemade to protect those who must provide information from losing controlover their personal identifiers.

33 If I am required to place my analysis into an evidentiary context tojustify my finding that there is a public interest and social value imbed-ded in the expectation of privacy and confidentiality for personal identifi-ers, and the risk of identity theft is real, I do so by taking judicial noticeof the facts I have used to support my analysis based upon the principlesexpressed in R. v. Find, [2001] 1 S.C.R. 863 (S.C.C.) and R. v. Spence,[2005] 3 S.C.R. 458 (S.C.C.).

34 Having decided there is a social value to protect and a public interestto advance that is of superordinate importance I must next decidewhether it is necessary to completely seal the court file to protect thatinterest or whether there are other means to achieve this purpose. I havealready commented on why orders forbidding wrongful use of this infor-mation offer little protection.

35 Other than removing the personal identifier information from docu-ments required to be filed in this court, I can think of no means by whichto protect this information except to issue an order sealing this file. Anyattempt to collect the required disclosure, while removing identifiers sothat they would be provided when necessary but remain undisclosed tothe public, would be cumbersome and costly to the parties and to thecourt’s administration. It would necessitate filing two sets of these docu-ments, one with all personal identifiers removed, accessible to the public,


and one with the identifiers in a separate file, not accessible to the public,essentially two files for every proceeding.

36 I have decided the salutary effects of a sealing order do outweigh itsdeleterious effects in these circumstances particularly because the publicinterest in an open court is not completely circumscribed by this order.There is no publication ban of these proceedings. The public may attendthe hearing, should there be one, and it may attend to hear any oral deci-sion rendered or read the written decision. In this way the public willlearn what facts were accepted as proven by the court. It will understandhow the court conducted the process of dividing property between theparties and how it reached its conclusions about entitlement to spousalsupport and the quantum to be paid by the Respondent, if any.

37 The open court principles were crafted at a time when the internetwas not a public source of information nor of manipulation. Initiallythese principles were developed in criminal cases where scrutiny to en-sure the state was not abusing it’s powers of arrest and imprisonment wasparamount. This case involves the court as a provider of a dispute resolu-tion process. The state has passed laws that create a framework for thatdispute resolution but the potential for state abuse of the parties is limitedif nonexistent. The public interest in the process, and in the performanceof the judges, remains to be served by the opportunity for the public toattend the hearings and read or listen to decisions rendered. The mediacan attend and publish what it wishes about that hearing and thosedecisions.

38 I grant the applications requested. This divorce file shall be sealed inits entirety.

Application granted.

Labrecque v. Labrecque 319

[Indexed as: Labrecque v. Labrecque]

Holly Noella Marie Labrecque (Petitioner) and Claude PhilipJoseph Labrecque (Respondent)

Saskatchewan Court of Queen’s Bench

Docket: Saskatoon Div. 38/99

2011 SKQB 260

J.A. Ryan-Froslie J.

Judgment: June 30, 2011

Family law –––– Support — Child support under federal and provincialguidelines — Variation or termination of award — Change in circum-stances — Change in status as child of marriage –––– Parties married on Oc-tober 11, 1985, and separated on January 23, 1999 — Parties had three children:R, born on July 18, 1990; J, born on August 5, 1992; and B, born on March 28,1994 — R suffered from disability — Father was farmer and incorporated com-pany, H Ltd. — Mother assumed traditional role of stay-at-home mother — Al-though mother obtained part-time employment in 1998, she left employment in2000 and had not worked since — Following separation, children remained incare of mother — In fall of 2001, mother moved to Saskatoon with children —On November 30, 2007, parties signed minutes of settlement — On May 22,2009, father was ordered to pay child support of $1,000 per month, as well as 71per cent of children’s special expenses — In March 2010, mother sought to varychild support — Among other relief, mother’s claim for variation of child sup-port proceeded to trial — Claim allowed — Father was ordered to pay child sup-port of $741 per month, based on annual income of $52,999, as well as 85.52per cent of any health related expenses incurred with respect to R or B — Therewas no question that change of circumstances occurred — It was acknowledgedthat at least one child no longer qualified for support — It was also acknowl-edged that mother’s income had decreased.

Family law –––– Support — Child support under federal and provincialguidelines — Retroactive award — Multiple factors considered –––– Partiesmarried on October 11, 1985, and separated on January 23, 1999 — Parties hadthree children: R, born on July 18, 1990; J, born on August 5, 1992; and B, bornon March 28, 1994 — R suffered from disability — Father was farmer and in-corporated company, H Ltd. — Mother assumed traditional role of stay-at-homemother — Mother had not worked at all since 2000 — In fall of 2001, mothermoved to Saskatoon with children — On November 30, 2007, parties signedminutes of settlement — On May 22, 2009, father was ordered to pay child sup-port of $1,000 per month, as well as 71 per cent of children’s special ex-


penses — In March 2010, mother sought to vary child support — Among otherrelief, mother’s claim for retroactive child support proceeded to trial — Claimallowed — Child support was varied effective March 1, 2010, as that was datemother initiated current application for variation — It would not be fair to ordersupport retroactive to July 1, 2007, as father did not mislead mother with respectto his income — Income agreed upon by parties was reasonable — There wasno reasonable explanation for mother’s delay in bringing her application for ret-roactive support — It was also inappropriate to award retroactive award of childsupport to November 1, 2008 — Mother was represented by counsel in May2009, when she agreed that father’s income should remain at $54,600 perannum.

Family law –––– Support — Child support under federal and provincialguidelines — Determination of spouse’s annual income — Imputed in-come — Business and corporate income –––– Parties married on October 11,1985, and separated on January 23, 1999 — Parties had three children: R, bornon July 18, 1990; J, born on August 5, 1992; and B, born on March 28, 1994 —R suffered from disability — Father was farmer and incorporated company, HLtd. — Mother assumed traditional role of stay-at-home mother — Mother hadnot worked at all since 2000 — In fall of 2001, mother moved to Saskatoon withchildren — On November 30, 2007, parties signed minutes of settlement — OnMay 22, 2009, father was ordered to pay child support of $1,000 per month, aswell as 71 per cent of children’s special expenses — In March 2010, mothersought to vary child support — Among other relief, mother’s claim for variationof child support proceeded to trial — Claim allowed — Father was ordered topay child support and special expenses based on annual income of $52,999 — HLtd.’s pre-tax income did not accurately reflect money that was available to fa-ther for child support purposes — More accurate reflection of money availableto father in H Ltd. was its taxable income calculated on cash basis — Given thatthere was significant fluctuation in H Ltd.’s farming income over past threeyears, three-year average was taken — However, no additional money wasavailable in H Ltd. for child support purposes, as amounts paid to father by HLtd. exceeded money actually available.

Family law –––– Support — Spousal support under Divorce Act and provin-cial statutes — Variation or termination — General principles –––– Partiesmarried on October 11, 1985, and separated on January 23, 1999 — Parties hadthree children: R, born on July 18, 1990; J, born on August 5, 1992; and B, bornon March 28, 1994 — R suffered from disability — Father was farmer and in-corporated company, H Ltd. — Mother assumed traditional role of stay-at-homemother — Mother had not worked at all since 2000 — In fall of 2001, mothermoved to Saskatoon with children — On November 30, 2007, parties signedminutes of settlement — On February 28, 2008, order was made providing thatspousal support would gradually reduce from $1,000 per month, and would ulti-

Labrecque v. Labrecque 321

mately terminate effective July 1, 2009 — Mother subsequently sought to rein-state spousal support — Among other relief, mother’s claim for variation ofspousal support proceeded to trial — Claim dismissed — There was no evidencethat mother was in any way oppressed or pressured when she entered into min-utes of settlement, nor was there any evidence she was vulnerable at that time —Spousal support paid since separation significantly exceeded amount suggestedby Spousal Support Advisory Guidelines — There was evidence that R couldbecome independent within couple of years if he received treatment — Motherhad not sought employment since November 2007 agreement, nor had she doneanything to improve her financial circumstances.

Cases considered by J.A. Ryan-Froslie J.:

B. (G.) c. G. (L.) (1995), 1995 CarswellQue 23, [1995] R.D.F. 611, 1995 Car-swellQue 120, (sub nom. G. (L.) c. B. (G.)) 127 D.L.R. (4th) 385, (sub nom.G. (L.) c. B. (G.)) 186 N.R. 201, 15 R.F.L. (4th) 201, [1995] 3 S.C.R. 370,EYB 1995-67821, [1995] S.C.J. No. 72 (S.C.C.) — considered

Baum v. Baum (1999), 1999 CarswellBC 2980, 7 R.F.L. (5th) 231, 182 D.L.R.(4th) 715, [1999] B.C.J. No. 3025 (B.C. S.C.) — referred to

Beeching v. Beeching (2006), 2006 CarswellSask 799, 2006 SKQB 542, 34R.F.L. (6th) 150, [2007] 3 W.W.R. 305, 290 Sask. R. 298 (Sask. Q.B.) —referred to

Enns v. Enns (2010), 353 Sask. R. 158, 2010 SKQB 126, 2010 CarswellSask186 (Sask. Q.B.) — referred to

Homenuk v. Homenuk (1999), 1999 CarswellSask 256, 178 Sask. R. 279, 48R.F.L. (4th) 114 (Sask. Q.B.) — referred to

Jeffrey v. Motherwell (2006), 36 R.F.L. (6th) 377, 2006 BCSC 140, 2006 Car-swellBC 211, [2006] B.C.J. No. 196 (B.C. S.C. [In Chambers]) — referredto

Kehler v. Kehler (2003), [2003] 8 W.W.R. 429, 2003 CarswellMan 270, 2003MBCA 88, 39 R.F.L. (5th) 299, 177 Man. R. (2d) 135, 304 W.A.C. 135,[2003] M.J. No. 217 (Man. C.A.) — referred to

Keogan v. Weekes (2005), 2005 CarswellSask 171, 2005 SKQB 114, [2005] 8W.W.R. 574, 13 R.F.L. (6th) 203, 263 Sask. R. 309, [2005] S.C.J. No. 170(Sask. Q.B.) — referred to

Kowalewich v. Kowalewich (2001), 19 R.F.L. (5th) 330, 155 B.C.A.C. 143, 254W.A.C. 143, [2001] 9 W.W.R. 626, 92 B.C.L.R. (3d) 38, 2001 BCCA 450,2001 CarswellBC 1417, [2001] B.C.J. No. 1406 (B.C. C.A.) — referred to

Miglin v. Miglin (2003), 2003 SCC 24, 2003 CarswellOnt 1374, 2003 Carswell-Ont 1375, 224 D.L.R. (4th) 193, 34 R.F.L. (5th) 255, 66 O.R. (3d) 736(note), [2003] 1 S.C.R. 303, 171 O.A.C. 201, 302 N.R. 201, REJB 2003-40012, [2003] S.C.J. No. 21 (S.C.C.) — followed

Miller v. Joynt (2007), 2007 CarswellAlta 1811, 415 W.A.C. 150, 422 A.R. 150,87 Alta. L.R. (4th) 227, 2007 ABCA 214, 48 R.F.L. (6th) 256, [2007] A.J.No. 959 (Alta. C.A.) — referred to


Nesbitt v. Nesbitt (2001), 19 R.F.L. (5th) 359, 156 Man. R. (2d) 238, 246W.A.C. 238, [2001] 8 W.W.R. 635, 2001 MBCA 113, 2001 CarswellMan308, [2001] M.J. No. 271 (Man. C.A.) — referred to

Olchowecki v. Olchowecki (2005), 2005 SKQB 144, 2005 CarswellSask 204,267 Sask. R. 83 (Sask. Q.B.) — followed

Poff v. Fenell (1998), 173 Sask. R. 275, 1998 CarswellSask 738, [1998] S.J. No.608 (Sask. Q.B.) — considered

Riel v. Holland (2003), 232 D.L.R. (4th) 265, 177 O.A.C. 162, 2003 Carswell-Ont 3828, 42 R.F.L. (5th) 120, 67 O.R. (3d) 417, [2003] O.J. No. 3901 (Ont.C.A.) — referred to

S. (D.B.) v. G. (S.R.) (2006), 61 Alta. L.R. (4th) 1, 31 R.F.L. (6th) 1, 391 A.R.297, 377 W.A.C. 297, 2006 SCC 37, 2006 CarswellAlta 976, 2006 Carswell-Alta 977, 351 N.R. 201, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297,[2006] 2 S.C.R. 231, [2006] S.C.J. No. 37 (S.C.C.) — followed

Sjogren v. Pipchuk (1997), 1997 CarswellSask 682, 34 R.F.L. (4th) 280 (Sask.C.A.) — considered

Wildman v. Wildman (2006), 2006 CarswellOnt 6042, 215 O.A.C. 239, 33R.F.L. (6th) 237, 25 B.L.R. (4th) 52, 273 D.L.R. (4th) 37, 82 O.R. (3d) 401,[2006] O.J. No. 3966 (Ont. C.A.) — referred to

Willick v. Willick (1994), 6 R.F.L. (4th) 161, 119 D.L.R. (4th) 405, 173 N.R.321, 125 Sask. R. 81, 81 W.A.C. 81, [1994] 3 S.C.R. 670, [1994] R.D.F.617, 1994 CarswellSask 48, 1994 CarswellSask 450, [1994] S.C.J. No. 94,EYB 1994-67936 (S.C.C.) — considered


Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)Generally — referred tos. 16(1) — considereds. 17 — considereds. 17(4) — considereds. 17(4.1) [en. 1997, c. 1, s. 5(1)] — considereds. 17(7) — considered

Rules considered:

Queen’s Bench Rules, Sask. Q.B. RulesR. 608(2) — considered



Generally — referred tos. 1 — considereds. 1(d) — considereds. 7 — referred to

Labrecque v. Labrecque J.A. Ryan-Froslie J. 323

s. 7(1)(c) — referred tos. 14 — consideredss. 15-20 — referred tos. 16 — considereds. 17 — considereds. 18 — considereds. 18(1)(a) — considereds. 19 — considereds. 20 — referred toSched. III — referred toSched. III, s. 5 — consideredSched. III, s. 11 — considered

TRIAL of mother’s claims for variation of spousal support, variation of childsupport, and retroactive child support.

S. Sinclair, K. Hnatuk, for PetitionerP. Loran, for Respondent

J.A. Ryan-Froslie J.:

1 The Labrecques, who were married on October 11, 1985, separatedon January 23, 1999. They have three children, currently 20, 18 and 17years of age, respectively. Following their separation the Labrecques set-tled by agreement custody, child support, the division of their family pro-perty and spousal support. On January 3, 2002, a judgment for divorcewas granted which incorporated the terms of the parties’ spousal supportagreement.

2 Since settling the issues of spousal support and child support, bothparties have applied to vary their agreements, which were incorporatedinto Court orders. The last order with respect to spousal support wasgranted on February 28, 2008. It incorporated a settlement agreementreached by the parties during a pre-trial conference and provided thatspousal support would terminate effective July 1, 2009.

3 The last order with respect to child support was dated May 22, 2009,at which time it was agreed Mr. Labrecque had an income of $54,600 forchild support purposes and that Ms. Labrecque’s income was $23,300.Mr. Labrecque was ordered to pay 71% of the children’s s. 7 expenses.That same order directed a viva voce hearing with respect to Ms. Labrec-que’s request to reinstate spousal support.


4 Nothing further happened with respect to Ms. Labrecque’s applica-tion for variation of spousal support until March, 2010. At that point Ms.Labrecque brought an application to vary the May 22, 2009 child supportorder. On June 22, 2010 the chamber judge directed a trial, specifyingthe issues to be adjudicated as follows:

(i) Whether the parties’ two oldest children remained children withinthe meaning of the Divorce Act and if not, when they lost thatstatus;

(ii) Mr. Labrecque’s income for child support purposes and in particu-lar whether any of his farming company’s pre-tax income shouldbe imputed to him;

(iii) Whether any change in child support should be made retroactiveand, if so, to what date;

(iv) Whether Ms. Labrecque’s spousal support which terminated onJune 30, 2009 should be reinstated and, if so, in what amount andfor what duration.

The evidence5 There is little controversy with respect to the salient facts concerning

the issues in dispute.6 Ms. Labrecque was almost 22 years of age at the time of the mar-

riage. While she was not employed at that time (she had moved home toassist her parents in the care of a chronically ill sibling), she had workfollowing her graduation from Grade 12 as a bank teller and special edu-cation tutor while taking night classes towards a BA.

7 Following the parties’ marriage on October 11, 1985, Ms. Labrecquecontinued her education. She also worked briefly (approximately sixmonths) as a bank teller. Ms. Labrecque obtained a BA in religious stud-ies in 1988, a Bachelor of Education in 1990 and did post-graduate workin special education in 1991. For approximately two months in the springof 1990, Ms. Labrecque did some substitute teaching and facilitatedsome adult education classes. She also worked briefly (approximatelytwo weeks) as a teachers’ assistant.

8 The birth of the parties’ children, Riley on July 18, 1990, Jenai onAugust 5, 1992 and Braden on March 28, 1994, resulted in Ms. Labrec-que assuming the traditional role of a stay-at-home mother. In 1998 sheobtained part-time employment (two mornings and one afternoon perweek) with Oxford Learning Centre.


9 When the parties separated on January 23, 1999, the children re-mained in the care of their mother. At that time, Riley was eight yearsold, Jenai was six and Braden was four (almost five). According to thetestimony of Ms. Labrecque, she left her employment with OxfordLearning Centre in approximately 2000 and she has not worked since.Her only source of income is rental from farmland which she received aspart of her share of the family property.

10 In the fall of 2001 (close to three years post-separation), Ms. Labrec-que moved to Saskatoon with the children where she continues to reside.She has taken training since the separation with respect to trauma therapyand palliative care but has not attempted to find any employment in thosefields.

11 Ms. Labrecque testified that her circumstances have not changedsince the signing of the November 30, 2007 minutes of settlement, uponwhich the February 28, 2008 spousal support order was based. Beforethat order was granted, Ms. Labrecque wrote to the Court indicating thatshe did not want the minutes of settlement incorporated into a Court or-der. There is no indication that her letters were sent to Mr. Labrecque orto his legal counsel. On February 28, 2008, the pre-trial judge granted anorder incorporating the parties’ agreement with respect to spousal sup-port. Ms. Labrecque testified she did not appeal that order as she onlybecame aware of it after the time for appeal had expired.

12 Claude Labrecque is a farmer and that was his main occupationthroughout the parties’ marriage though he did work off the farm mostwinters welding or doing carpentry work. It is uncontroverted that Mr.Labrecque has not worked off the farm since approximately 2005/2006.

13 Following the separation, Mr. Labrecque continued to farm. After thedivision of the family property in which Ms. Labrecque received twoquarters of land, Mr. Labrecque was left with five deeded quarters offarmland and a loan with respect to the equalization payment made toMs. Labrecque. Since the property division, Mr. Labrecque has acquiredfour additional deeded quarters of land, the purchase of which waslargely financed. In addition as a result of his father’s estate planning, hefarms two further quarters of land pursuant to an agreement for sale.

14 In 2003, Mr. Labrecque incorporated his farming operations whichare now run through a company, Hardrock Farms Ltd. The company’sincome is primarily derived from grain production. Mr. Labrecque is thesole shareholder and director of that company.


15 In addition to his farming enterprise, Mr. Labrecque has a rentalhome registered in his personal name. The rent from that home coversthe expenses with respect to it, including the mortgage payments.

16 Mr. Labrecque testified that he has been in a relationship with anotherwoman since approximately 2007. That woman has two school agedchildren who also reside with them.

17 Two of the parties’ children are now over the age of 18. Jenai, themiddle child, graduated from Grade 12 in June, 2010 and turned 18 inAugust, 2010. She now resides in Lloydminster with her boyfriend. Theyoungest child, Braden, is 17 and in Grade 11. It is expected that he willgraduate from Grade 12 in the spring of 2012. Braden has no specialhealth needs and is not involved in any extracurricular activities outsideof school. He works part time and is currently being tutored in math. Theparties’ oldest child, Riley, is 20 years of age (he will turn 21 in July,2011). Riley has not attended school since March 2001 when his motherattested he “shut down”. Riley was 10 years of age at the time. Ms.Labrecque believes Riley suffers from sensory integration disorder, aneurological disorder that results in the brain’s inability to properly pro-cess sensory information.

18 According to David Ambrose, an occupational therapist who special-izes in sensory integration disorders, such disorders fall into two catego-ries — modulation and discrimination.

19 Disorders with respect to modulation occur when a person over orunder-responds to sensory inputs. For example, they cannot stand the feelof a clothing tag or a zipper. Disorders with respect to discriminationresults from an inability to pull salient qualities from sensory inputs sothe brain can respond appropriately. Individuals who suffer from sensoryintegration disorder have difficulty with “daily occupations”, that is,daily tasks such as bathing, cooking, etc. The extent of their difficultydepends on which category their disorder falls into and its severity.

20 Mr. Ambrose was of the opinion that Riley suffers from sensory inte-gration disorder though given Riley’s age he was unable to test him. Mr.Ambrose believes that Riley’s disorder falls into both the modulation anddiscrimination categories, though Riley’s biggest challenge is with re-spect to modulation. In Mr. Ambrose’s opinion, Riley is hyper-sensitiveto things which touch his skin. For example, following a shower, Rileyair drys or uses a large sheet as opposed to using a towel. He is sensitiveto his clothing, for example, tags and zippers. He also has auditory andvisual sensitivities. Riley’s activity patterns are affected as a result of his


disorder. For example, Riley likes to go for walks at the end of the daywhen it is getting dark so there are fewer extraneous inputs that he mustdeal with. According to David Ambrose, Riley is at the severe end of thesensory integration disorder scale. Mr. Ambrose testified that often indi-viduals with sensory integration disorder suffer from other disorders butto his knowledge Riley has not been diagnosed with any other disorder.

21 David Ambrose testified that sensory integration disorder is geneticand begins in infancy. It is not something that suddenly appears in anindividual’s life. In Mr. Ambrose’s opinion, a child who is able to attendand do well in school and participate in sporting events would not qualifyas having a sensory integration disorder. This evidence seems at oddswith Ms. Labrecque’s description of Riley as a child.

22 According to Ms. Labrecque’s evidence, Riley hardly slept as a babyand would not settle. As a child he was very busy, impulsive, demandingand clingy. He did well in kindergarten but in Grade 1, after Christmas,he began to have some problems. He would sit on his desk instead of in itand seemed to have trouble following directions. This pattern of beha-viour continued in Grades 2 and 3, albeit Riley continued to do well aca-demically in those years. During that same period, Riley was involved inorganized sports such as hockey. In January, 1999, when Riley was inGrade 3, the Labrecques separated. In Grade 4, Ms. Labrecque testifiedthat Riley became frustrated with his homework and took a long time todo it. In March, 2001, when Riley was in Grade 5, he ran away fromschool a couple of times. It is uncontroverted that at the time Riley wasbeing bullied. According to Ms. Labrecque’s evidence, on March 10,2001, Riley “shut down”. By that she meant that Riley refused to go toschool. Ms. Labrecque testified she gave up trying to make Riley attendschool and started home schooling him. It was at that point that Ms.Labrecque sought medical help for Riley, who was then 10 years of age.The first doctor she went to referred Riley to a child psychologist forevaluation and prescribed medication for ADHD (attention deficit hyper-active disorder). Ms. Labrecque did not agree with the diagnosis and didnot want Riley to be on medication. Accordingly, she sought a secondopinion. That doctor took Riley off the medication, recommending thatthey await the results of his appointment with a child psychologist towhom Riley had been referred. While Ms. Labrecque testified the seconddoctor recommended Riley not attend school, the letter that doctor wroteat the time to the school does not make that recommendation but ratherconfirms Riley was not attending school due to what the doctor believed


were “...interpersonal conflicts in school and severe anxiety of leavinghome to go to school.”

23 A child psychologist saw Riley and rendered her report on May 13,2001. While the report referred to Riley as being diagnosed with ADHD,Ms. Labrecque denied any such diagnosis had ever been made. Ms.Labrecque testified there were “theories” that Riley may be ADHD orODD (oppositional defiant disorder) but that neither of those diagnoseshad ever been made.

24 In October, 2001, Ms. Labrecque testified Riley saw Donna Hender-son, an occupational therapist and that it was Ms. Henderson who diag-nosed Riley as having sensory integration disorder.

25 It would appear from the evidence that Riley has never had consistentongoing therapy or treatment. He saw Dr. Strickland, a child psycholo-gist, approximately 10 times between the ages of 11 and 18. Accordingto Dr. Strickland’s September 24, 2007 report, she felt Riley sufferedfrom separation anxiety disorder. Riley also saw Dr. Ferguson, a childpsychologist, once in June, 2002; Francine Myers, an occupational thera-pist, approximately six times and David Ambrose, also an occupationaltherapist, once at the age of 15. Riley reconnected with David Ambrosein July, 2010 and he has now seen him approximately 10 times.

26 Home schooling has not been successful for Riley. According to Ms.Labrecque, she was only able to home school him for 15 to 20 minutes ata time and that this would only occur a few days per week and some-times not at all. Just prior to Riley turning 18, the home school coordina-tor recommended he be enrolled in the adult Grade 12 equivalency pro-gram. Riley commenced this program in July, 2007. The programrequires that he complete seven classes. In the four years since Riley be-gan this program, he has only completed two courses — language artsA30 and computer science 30.

27 David Ambrose testified that individuals with sensory integration dis-order can lead fairly normal lives with treatment. It was Mr. Ambrose’sopinion that if Riley continues in therapy he could obtain a job and be-come independent within a couple of years. Since Riley has been work-ing with David Ambrose, he has been able to increase the time he spendson his schooling to 40 minutes per day.

28 Ms. Labrecque testified she believes Riley can finish his adult Grade12 equivalency within two to three years. According to Ms. Labrecque,Riley is “gifted” with respect to computers and she believes he could findwork as a computer programmer. She also testified that while Riley qual-


ifies for social assistance, he has refused to apply for it or attend theinterview and assessment necessary to establish his qualification for suchassistance.

Analysis

The status of the parties’ two oldest children29 During the course of the trial, the parties agreed that as of August 31,

2010, their daughter, Jenai, no longer qualified as a child for child sup-port purposes pursuant to the Divorce Act. At that point in time she was18 years of age and working full time.

30 The parties also agreed that while their oldest child, Riley, remains achild within the meaning of the Divorce Act, that that status would termi-nate “absolutely” as of December 31, 2013. In arriving at this agreement,it was clearly the intention of both parties that child support for Rileywould terminate effective that date. They were advised by me that noorder could bind a future judge with respect to an application for varia-tion of child support.

31 It is clear that the agreement reached with respect to Riley was ar-rived at based on the evidence presented at trial which included evidencethat Riley qualifies for social assistance but refuses to apply for it, thatwith treatment Riley could become totally independent of the parties andthat Ms. Labrecque did not pursue consistent ongoing treatment for Rileyuntil July, 2010.

32 Based on the parties’ agreement, there shall be an order terminatingJenai’s right to child support effective August 31, 2010 and terminatingRiley’s right to child support effective December 31, 2013.

Variation of child support33 Pursuant to s. 17 of the Divorce Act, a court of competent jurisdiction

may vary a support order or any provision thereof. Pursuant to s. 17(4),before a court makes such an order with respect to child support, it mustbe satisfied that a change of circumstances as provided for in the applica-ble Guidelines has occurred since the making of the last order.

34 In this case, the last order with respect to child support was made onMay 22, 2009. That order set Mr. Labrecque’s income (by agreement)for child support purposes at $54,600 gross per annum and Ms.Labreque’s income at $23,300 gross per annum. In addition to Table sup-


port of $1,000 per month, Mr. Labrecque was ordered to pay 71% of thechildren’s s. 7 expenses.

35 There is no question that a change of circumstances has occurredwithin the meaning of s. 17(4) of the Divorce Act and s. 14 of the Guide-lines as it is acknowledged that at least one child no longer qualifies forsupport within the meaning of the Act and Ms. Labrecque’s income hasdecreased as a result of the termination of her child support. The realissue is Mr. Labrecque’s income for child support purposes.

Mr. Labrecque’s income for child support purposes

Position of the parties36 Ms. Labrecque argues that in determining Mr. Labrecque’s income

for child support purposes, all the pre-tax income of his farming corpora-tion (calculated using the accrual method of accounting) should be im-puted to him pursuant to s. 18 of the Federal Child Support Guidelines[Divorce Act Regulations, SOR/97-175]. She relies on the cases of Poffv. Fenell (1998), 173 Sask. R. 275 (Sask. Q.B.); Homenuk v. Homenuk(1999), 178 Sask. R. 279 (Sask. Q.B.) and Keogan v. Weekes, 2005SKQB 114, 263 Sask. R. 309 (Sask. Q.B.). Ms. Labrecque argues that itis clear from the financial statements of Hardrock Farms Ltd. that theretained earnings of the corporation have increased significantly since itsincorporation. She attributes this to the “profits” earned by the corpora-tion and argues the increase in retained earnings confirms that pre-taxincome of the corporation is available to Mr. Labrecque for child supportpurposes.

37 Ms. Labrecque fixes her income at $8,977 per annum based on hermost recent financial statement.

38 Mr. Labrecque agrees with Ms. Labrecque’s assessment of her cur-rent income but argues that the pre-tax income of Hardrock Farms Ltd.,which is based on the accrual method of accounting, is not available tohim for child support purposes as a large portion of that income consistsof grain inventories which have not yet been sold. Mr. Labrecque agreesthat the income from the farming operation must be calculated on a cashbasis and that because that income fluctuates significantly from year toyear, it should be averaged when calculating his income for child supportpurposes. He relies on the cases of Sjogren v. Pipchuk (1997), 34 R.F.L.(4th) 280 (Sask. C.A.) and Enns v. Enns, 2010 SKQB 126, 353 Sask. R.158 (Sask. Q.B.).


Analysis39 Income for child support purposes is to be determined in accordance

with ss. 15 to 20 of the Guidelines. One, some or all of those sectionsmay apply, depending on the circumstances of each case.

40 I adopt the approach set out by Justice Wilkinson in Olchowecki v.Olchowecki, 2005 SKQB 144, 267 Sask. R. 83 (Sask. Q.B.) at para. 10with respect to how sections 15 to 20 of the Guidelines should beapplied.

41 A court must commence its analysis by determining an individual’sincome pursuant to s. 16 of the Guidelines, that is, by looking at theirsources of income as set out in their T-1 General form filed with CanadaRevenue Agency and then adjusting those sources of income in accor-dance with Schedule III of the Guidelines.

42 Thereafter, a Court should look at whether the income calculated pur-suant to s. 16 represents the “fairest determination” of income for childsupport purposes, having regard to ss. 17 and 18 of the Guidelines. Inaddition, the Court may impute income pursuant to s. 19 of the Guide-lines or utilize s. 20 if the income is taxed in another jurisdiction.

43 In the past three years Mr. Labrecque has had three sources of in-come: (1) farm income in the form of a payment from Hardrock FarmsLtd. for grain inventory sold by Mr. Labrecque to the corporation; (2)rental income with respect to a residential property; and (3) dividendsfrom a Canadian corporation over which Mr. Labrecque has no control.

44 Based on the uncontroverted evidence of Mr. Labrecque and his ac-countant, Mr. Altrogge, as well as Mr. Labrecque’s personal income taxreturns and the financial statements of Hardrock Farms Ltd., I am satis-fied that the payment from Hardrock Farms to Mr. Labrecque with re-spect to the sale of grain inventory is made from the after-tax income ofthe corporation and is fully taxable in Mr. Labrecque’s hands in muchthe same way as a salary would be. No adjustments pursuant to ScheduleIII of the Guidelines are necessary with respect to that income.

45 Counsel for Ms. Labrecque argues that because Mr. Labrecque’s netrental income has fluctuated significantly over the last four years, itshould be averaged pursuant to s. 17 of the Guidelines. A better approachis to apply s. 11 of Schedule III of the Guidelines which requires that thecapital cost allowance deducted with respect to real property must be ad-ded “back” in determining an individual’s income for child support pur-poses. Based on the rental income statements attached to Mr. Labrec-


que’s tax returns, it is obvious that in 2009 and 2010 he deducted capitalcost allowance with respect to his real property (i.e. his rental home).Prior to 2009, the capital cost deducted related to appliances he had pur-chased for the property. Applying s. 11 of Schedule III would result inadjusted rental income for Mr. Labrecque with respect to the past threeyears as follows:

2008 $4,688.36 (no adjustment)2009 $4,844.83 (capital cost allowance $3,928 plus net

rental income of $916.83)2010 $4,136.95 (capital cost allowance $3,770.88 plus net

rental income of $366.07)

The fluctuations in rental income after adjusting that income in accor-dance with s. 11 of Schedule III of the Guidelines are not significant. Ifind the rental income, as adjusted, fairly reflects Mr. Labrecque’s avail-able income from that source.

46 Both parties acknowledge s. 5 of Schedule III would apply with re-spect to Mr. Labrecque’s dividend income. That section requires the tax-able amount of dividends from a Canadian corporation be replaced bythe actual amount of the dividends received. Thus, Mr. Labrecque’s in-come from that source over the past three years would be adjusted to$244.36 for 2008; $390.60 for 2099 and $252.23 for 2010.

47 After adjustments in accordance with Schedule III, I find Mr. Labrec-que’s income pursuant to s. 16 of the Guidelines to be as follows:

2008 2009 2010

Farm income $40,140.97 $46,479.78 $48,610.00

Dividend income 244.36 390.60 252.23

Rental income 4,688.36 4,844.83 4,136.95

Adjusted Line 150 in- $45,073.69 $51,715.21 $52,999.18come

Application of s. 18 of the Guidelines48 Section 18 of the Guidelines reads as follows:

18(1) Where a spouse is a shareholder, director or officer of a cor-poration and the court is of the opinion that the amount of thespouse’s annual income as determined under section 16 doesnot fairly reflect all the money available to the spouse for thepayment of child support, the court may consider the situa-


tions described in section 17 and determine the spouse’s an-nual income to include:

(a) all or part of the pre-tax income of the corporation,and of any corporation that is related to that corpora-tion, for the most recent taxation year; or

(b) an amount commensurate with the services that thespouse provides to the corporation, provided that theamount does not exceed the corporation’s pre-taxincome.

(2) In determining the pre-tax income of a corporation for thepurposes of subsection (1), all amounts paid by the corpora-tion as salaries, wages or management fees, or other pay-ments or benefits, to or on behalf of persons with whom thecorporation does not deal at arm’s length must be added tothe pre-tax income, unless the spouse establishes that the pay-ments were reasonable in the circumstances.

49 Section 18 applies to any corporation in which a parent is a share-holder, director or officer of a company and, as such, covers a wide vari-ety of situations ranging from corporations where the parent is the sole ormajority shareholder, to companies where they are minority shareholdersor merely directors or officers of the company.

50 To determine whether s. 18 of the Guidelines applies, the test to beutilized is one of fairness. It is not necessary to find any wrongdoing onthe part of the parent who is involved in the corporation (See:Kowalewich v. Kowalewich, 2001 BCCA 450, 19 R.F.L. (5th) 330 (B.C.C.A.) at para. 40) nor is the issue whether the pre-tax income of the cor-poration is being used for legitimate purposes (though that may be a fac-tor in the analysis). Rather, the question for determination is whether it isfair and reasonable that some or all of the pre-tax corporate incomeshould be attributed to the parent involved in the corporation in deter-mining a fair level of child support.

51 In applying s. 18, a court attempts to ensure that a parent’s incomefairly reflects all of the money available to them for child support pur-poses. In doing so, the Court must be cognizant of the objectives of theGuidelines as set out in s. 1 thereof, that is, to establish a fair standard ofsupport for children that ensures they benefit according to the financialmeans of their parents, to reduce conflict and tension between parents, toprovide an efficient mechanism for determining child support that en-courages settlement, and finally, to ensure consistent treatment of parentsand children who find themselves in similar circumstances.


52 Where a parent is the sole shareholder of a company, he/she has theability to control the flow of corporate income. As such, the pre-tax in-come of the corporation would normally be available for the benefit oftheir children. While there may be legitimate business reasons for leav-ing income in a corporation such as the payment of debts, the purchase ofinventory, replacing or purchasing of equipment and business expansion,that does not mean that money should not be considered in setting anappropriate level of child support. A sole proprietor operating the sametype of business and earning the same amount of income will have theirchild support obligation determined using their pre-tax business income.That pre-tax business income must also be used by the sole proprietor topay the principle amount of any debts owing by the business, to purchaseequipment, and/or to expand the business. It would be incongruous if twoparents, whose incomes are derived from the same type of business andwho earned the same amount of income pay different amounts of childsupport simply because one parent operated his business as a sole propri-etor while the other parent operated his business through a corporation.Such a situation would defeat the objective of consistent treatment ofboth parents and children as set out in s. 1(d) of the Guidelines (See:Baum v. Baum (1999), 7 R.F.L. (5th) 231 (B.C. S.C.) at para. 28,Wildman v. Wildman (2006), 33 R.F.L. (6th) 237 (Ont. C.A.) at paras. 27and 28 and Riel v. Holland (2003), 42 R.F.L. (5th) 120 (Ont. C.A.) atpara. 35).

53 In short, parents who earn income from similar sources should betreated in a similar fashion, however their business is structured.

54 The onus rests with the parent who is the shareholder, director or of-ficer of the corporation to establish that some or all of the pre-tax incomeof the corporation is not available for child support purposes. (See:Nesbitt v. Nesbitt, 2001 MBCA 113, 19 R.F.L. (5th) 359 (Man. C.A.) atpara. 21; Beeching v. Beeching, 2006 SKQB 542, 290 Sask. R. 298(Sask. Q.B.) at para. 18 and Jeffrey v. Motherwell (2006), 2006 BCSC140, 36 R.F.L. (6th) 377 (B.C. S.C. [In Chambers]) at para. 13). Wherethe parent is the sole shareholder, director and officer of the corporation,the onus on them will be a heavy one.

55 The attribution of pre-tax corporate income to a shareholder parentpursuant to s. 18(1)(a) of the Guidelines does not “strip” the corporationof that income. Attribution does not require the removal of the pre-taxincome from the corporation. Rather, it results in income being attributed


to the parent solely for the purpose of establishing a fair level of childsupport. (See: Kowalewich, supra, at para. 41).

56 In this case, according to the corporate financial statements, the pre-tax income of Mr. Labrecque’s company, Hardrock Farms Ltd., for thepast three years was as follows:

2008 $135,9552009 $200,6852010 $90,053

57 At the same time, according to the corporate tax returns, the taxableincome of the corporation was considerably less, namely:

2008 $0.002009 $99,4362010 $1,164

58 Both parties retained experts to analyse the corporate income that ispotentially available to Mr. Labrecque for child support purposes.

59 Marc Hoffart testified on behalf of Ms. Labrecque. He is a charteredaccountant who received his designation in 2003. In 2008 he was alsodesignated as a chartered business valuator.

60 Mr. Hoffart reviewed the financial statements and corporate tax re-turns for Hardrock Farms Ltd. for the period 2006 to 2010, inclusive. Heprepared two written reports, one dated June 8, 2010, and the other datedFebruary 24, 2011. During his testimony, Mr. Hoffart corrected an errorin his June 8, 2010 report by verifying that Mr. Labrecque does not re-ceive any non-taxable disbursements from Hardrock Farms Ltd. He ac-knowledged Mr. Labrecque’s income from the company is paid pursuantto an inventory agreement for sale and that those payments are taxable inMr. Labrecque’s hands.

61 Mr. Hoffart testified that the financial statements for Hardrock FarmsLtd. are prepared on an “accrual” basis while its income for tax purposesis calculated on a “cash” basis. In Canada, the ability to report incomefor tax purposes on a cash basis is limited to farming and fishingbusinesses.

62 Under the accrual method of accounting, income is reported in theyear it is produced and expenses are reported in the year they are in-curred. This is in contrast to the cash method of accounting where in-come is reported when it is actually received and expenses are reportedas they are paid. It is uncontroverted that the accrual method of account-


ing is the preferred method for preparing financial statements in accor-dance with generally accepted accounting principles because it reflects amore accurate picture of a corporation’s or individual’s financial posi-tion. It is also undisputed that the cash method of accounting may besubject to manipulation in that income can be deferred, inventory stock-piled and expenses postponed or prepaid.

63 In Mr. Hoffart’s opinion, the accrual method of accounting as re-flected by Hardrock Farms Ltd. financial statements is the most accuratemeasure of the company’s performance and reflects what money is avail-able to Mr. Labrecque from the corporation for child support purposes.In Mr. Hoffart’s opinion, the significant increase in the retained earningsof Hardrock Farms Ltd. since 2006 supports the view that money wasleft in the company which would otherwise have been available to Mr.Labrecque.

64 In Mr. Hoffart’s opinion, all of Hardrock Farms Ltd. pre-tax incomeshould be attributed to Mr. Labrecque for child support purposes.

65 Richard Altrogge, who has been Mr. Labrecque’s accountant for anumber of years, testified on behalf of Mr. Labrecque. He is very famil-iar with the operations of Hardrock Farms Ltd. Mr. Altrogge is achartered accountant who received his designation in 1979. He prepareda comprehensive report dated March 11, 2011 with respect to HardrockFarms Ltd.’s operations.

66 Mr. Altrogge testified that the adjustments necessary to convert theaccrual method of accounting to the cash method of accounting in thecase of Hardrock Farms Ltd. relates to items such as grain inventories,accounts receivable and accounts payable. Canada Revenue Agency ac-cepts the cash method of reporting from farmers because it knows fullwell that inventories for one year will likely be sold and become taxablethe following year, basically resulting in a one-year lag. Canada RevenueAgency realizes that it would be a hardship to tax farmers on their inven-tory so they tax them only after that inventory has been sold.

67 Mr. Altrogge testified that Hardrock Farms Ltd., like most farmingoperations in Canada, reports its income for tax purposes on a cash basis.Schedule I of Hardrock Farms Ltd. corporate tax returns “converts” thecompany’s pre-tax income as reported in its financial statements and cal-culated on an accrual basis to taxable income calculated using the cashmethod of accounting. According to Mr. Altrogge, the cash method ofreporting matches the tax liability of the company to the cash generatedby the farm each year.


68 Mr. Altrogge acknowledged that the cash method of accounting canbe used to manipulate income unfairly by pre-paying expenses, deferringincome and holding on to inventories. According to Mr. Altrogge’s evi-dence, that is not occurring with respect to Hardrock Farms Ltd. All ofthe grain produced is sold in the crop year it was produced, no income isdeferred and no expenses are pre-paid. Schedule I attached to Mr. Al-trogge’s March 11, 2011 report confirms that Hardrock Farms Ltd. hasconsistently sold its grain inventory produced in one year by the follow-ing year. This is also substantiated by the evidence of Mr. Labrecquehimself.

69 Mr. Altrogge testified that with respect to Hardrock Farms Ltd., thereare two items that are primarily responsible for the difference between itsincome reported using the accrual method and its income reported usingthe cash method. Those items are the growth in its inventory (grain)levels and the account payable to Mr. Labrecque for the grain inventorythat he transferred to the company when it was incorporated. Mr. Labrec-que is now being paid for that grain inventory in what Mr. Altrogge de-scribed as an amount “akin to a wage”. Schedule II of Mr. Altrogge’sreport sets out a comparison of the corporate income calculated using thecash method of accounting and the accrual method of accounting.

70 It was Mr. Altrogge’s opinion that as long as Hardrock Farms Ltd.continues to sell all of its grain inventory in the year following its pro-duction, then the cash basis of reporting is a fair indication of the incomeactually earned by the company and the money available to Mr. Labrec-que for child support purposes.

71 Mr. Altrogge also testified that the capital cost allowance being de-ducted by Hardrock Farms Ltd. is very reasonable and in fact disclosesan under-funding with respect to the replacement of equipment which, ifit continues, will eventually negatively impact the company’s production.Mr. Altrogge testified that capital cost allowance is an expense allowedby Canada Revenue Agency in recognition of the fact that equipmentwhich is essential to a farming operation, wears out over time and mustbe replaced. In short, it is a cost of doing business.

72 Farmers do not pay capital cost allowance to anyone, hence, it issometimes described as a “non-cash” expense. However, Mr. Altroggetestified that farmers purchase their machinery outright or by financingthe purchase via loans so conceptually capital cost allowance can beviewed as a cash item.


73 Finally, Mr. Altrogge testified that Hardrock Farms Ltd. is not retain-ing large amounts of cash in the company. According to his evidence, thecompany actually has a negative cash flow and this is supported by thefact that its overdraft has increased. After meeting its long term debtcommitments, its net tangible asset commitments, and paying a sum toMr. Labrecque pursuant to the grain inventory agreement, the companyis experiencing a shortfall of cash. This shortfall has expressed itself in anumber of ways. Firstly, the company has been unable to make theirCanada Revenue Agency tax installment payments and thus incurs inter-est charges. The corporation, unlike other healthy farming corporations,has neither deferred grain sales nor prepaid inputs on its balance sheetand finally the corporation’s equipment has significantly more hours onit than that of an average farmer which points to a risk of equipmentfailure and ultimately loss of crop value.

74 In Mr. Altrogge’s opinion, to pay Mr. Labrecque any more, the com-pany would have to borrow — a dangerous course of action if the farm-ing operation is to remain sustainable in the long run.

75 This Court accepts Mr. Altrogge’s detailed analysis with respect tothe operations of Hardrock Farms Ltd. I find that the fairest determina-tion of what money is actually available in the company for child supportpurposes is set out in Schedule II attached to Mr. Altrogge’s report, thatis, the company’s pre-tax income calculated using the cash method ofaccounting as opposed to the accrual method of accounting.

76 I have made this determination based on a number of factors.77 Firstly, individuals who operate their farming operations as sole pro-

prietorships or as partnerships report that income to Canada RevenueAgency based on the cash method of accounting. It is recognized thatthat method of accounting may not be the fairest method of determininga farmer’s income for child support purposes. As Justice Wilkinson ofthis Court stated in Poff v. Fenell (1998), 173 Sask. R. 275 (Sask. Q.B.)at para. 10:

[10] Because of the latitude farmers have to “manage” their incomeunder the cash method of accounting and through the use of deferredcrop payments, prepaid expenses, inventory adjustments, capital costallowance, the treatment of operating expenses and incentive pro-grams, the courts would be greatly assisted in the discharge of theirfunction if an accounting of farm production and expenses was pre-sented on an accrual basis. This would provide a more realistic pic-ture of true farm income.


(see also: Homenuk v. Homenuk, supra)78 The fact Mr. Labrecque operates his farm through a corporation, does

not change the approach enunciated by Justice Wilkinson. A Court mustcarefully examine the farming operation, be it a sole proprietorship, apartnership, or a corporation and adjust for any manipulation which oc-curs. The Guideline objective of consistency as set out in s. 1(d) thereof,is best achieved if income from similar sources are treated in a similarfashion.

79 While the cash method of accounting can be manipulated to distortwhat income is truly available, the evidence in this case establishes thatno such manipulation is occurring. I find as a fact that Hardrock FarmsLtd. sells all of its grain in the crop year it is produced (i.e. betweenAugust 1st of one year to July 31st of the next). I also find as a fact thatthe company does not defer any of its income. I am satisfied that thecompany does not stockpile inputs such as fertilizer, chemicals, fuel orseed. The capital cost allowance claimed by the company is reasonableand necessary for the purpose of replacing equipment. In fact, I agreewith Mr. Altrogge that the current capital cost allowance being claimedis not sufficient for that purpose. I am satisfied that Mr. Labrecque useshis corporate income to pay himself reasonable remuneration via his in-ventory agreement for sale with the company.

80 Secondly, the purpose of the Guidelines is to establish a fair level ofsupport for children. To be fair, support should be based on money that isactually available for that purpose. In this case, the accrual method ofaccounting results in pre-tax income which includes significant grain in-ventories. Those inventories do not represent money that is actuallyavailable to the company or Mr. Labrecque. As the Saskatchewan Courtof Appeal pointed out in Sjogren v. Pipchuk, supra, at para. 3:

[3] There is clearly no basis for adding the value of the grain on handto the income of the respondent. There is no indication of any under-handed or inappropriate action on the part of the respondent and thisgrain is therefore to be viewed as part of the gross income of therespondent in the year in which it is sold.

81 Finally, while the company’s retained earnings have increased signifi-cantly since its incorporation, I cannot find that that is necessarily a re-sult of “profits” from the operation of the company. Retained earningsinclude non-cash items such as inventory. While increases in retainedearnings must be scrutinized to ensure they are not the direct result ofadditional income available to a shareholder, to utilize retained earnings


to calculate income for child support purposes does not accord with theprovisions of s. 18 of the Guidelines. (See: Miller v. Joynt (2007), 2007ABCA 214, 48 R.F.L. (6th) 256 (Alta. C.A.) at paras. 27 and 28). In thiscase, the retained earnings of the corporation include huge grain invento-ries which do not represent money available for child support purposes.

Conclusion82 Based on the evidence, I find Hardrock Farms Ltd.’s pre-tax income

as set out in its financial statements does not accurately reflect moneythat is available to Mr. Labrecque for child support purposes. That in-come was calculated using the accrual method of accounting and in-cludes significant grain inventories which have not been converted intocash. I find a more accurate reflection of the money available to Mr.Labrecque in the corporation to be its taxable income calculated on acash basis as reflected in the corporate tax returns. Over the past threeyears, that taxable income was: $0.00 in 2008; $99,436 in 2009; and$1,164 in 2010.

83 Given the significant fluctuation in the corporation’s farming incomeover the past three years, I find that s. 17 of the Guidelines should beapplied and a three-year average taken. That average amounts to $33,533per year. From that income would have to be deducted Mr. Labrecque’sinventory payments which are reflected as farm income on his tax returnsand are paid out of the after-tax income of the corporation. The amountspaid to Mr. Labrecque were $40,140.97 in 2008; $46,479.78 in 2009 and$48,610 in 2010. It is obvious that the amounts paid to Mr. Labrecqueexceeded the money actually available in the corporation. As such, I amsatisfied that no additional money is available in the corporation for childsupport purposes.

84 I find that the fairest determination of Mr. Labrecque’s income forchild support purposes is his income calculated pursuant to s. 16 of theGuidelines.

85 Mr. Labrecque’s current income for child support purposes is thus$52,999. Based on that income, he should pay child support to the peti-tioner of $741 per month for the two children, Riley and Braden.

Retroactive child support86 The leading case with respect to the issue of retroactive child support

is the Supreme Court of Canada decision in S. (D.B.) v. G. (S.R.), 2006SCC 37, [2006] 2 S.C.R. 231 (S.C.C.). Justice Bastarache, speaking for


the Supreme Court of Canada in S. (D.B.) confirmed a court can varychild support pursuant to s. 16.1 of the Divorce Act retroactively as wellas prospectively.

87 In determining whether a Court should go beyond the application datewhen varying a child support award, Justice Bastarache set out four fac-tors to consider. Those factors are not exhaustive and no one factor isdeterminative of the issue. Rather, it is a question of “balancing” the fac-tors to determine what is fair in the circumstances.

88 The factors as set out in S. (D.B.), beginning at para. 100, are asfollows:

(i) Does the recipient have a reasonable excuse for why sup-port was not sought earlier?

Delay in seeking child support is not presumptively justifia-ble. If a recipient knows he/she may be entitled to childsupport or an increase thereof but arbitrarily decides not topursue it, that is not reasonable. On the other hand, if forfinancial or emotional reasons or because of intimidationby the payor, the recipient delays in proceeding with an ap-plication, then that may be reasonable.

(ii) Conduct of the payor

This conduct may be either responsible or blameworthy.For example if a payor has paid s. 7 expenses beyond whathe was obligated to or satisfied his obligation in anotherway, then that “good” conduct would mitigate against a ret-roactive award. On the other hand, any conduct that putsthe payor’s interests above those of his/her children, for ex-ample, hiding income, attempting to mislead the recipientwith respect to their income or intimidating the recipient sothat he/she will not bring a support application is blame-worthy conduct and will militate in favour of a retroactiveaward.

(iii) Circumstances of the child

This includes the circumstances as they existed at the timethe support should have been paid as well as the child’s


current circumstances. As Justice Bastarache pointed out atpara. 113 of S. (D.B.):

[113] ... the hardship suffered by children can affectthe determination of whether the unfulfilled obligationshould be enforced for their benefit.

[Emphasis added]

(iv) Hardship to the payor

Because retroactive awards are based on past income ver-sus present income and because a payor may have acquiredother familial obligations, such awards may result in hard-ship to them.

89 Finally, S. (D.B.) established that the general rule with respect to whatdate a retroactive award should begin is the date of effective notice, i.e.the date when the recipient first gave an indication to the payor that childsupport should be paid or renegotiated. However, where the payor hasengaged in blameworthy conduct which includes not only situationswhere the payor has intimidated or lied to the recipient but also wherethe payor has withheld information, the date the payor’s income in-creased may prove to be the more appropriate date for the retroactiveaward to commence. As Justice Bastarache stated at para. 124 of S.(D.B.):

[124] ... Not disclosing a material change in circumstances — includ-ing an increase in income that one would expect to alter the amountof child support payable — is itself blameworthy conduct. The pres-ence of such blameworthy conduct will move the presumptive date ofretroactivity back to the time when circumstances changed materi-ally. A payor parent cannot use his/her informational advantage tojustify his/her deficient child support payments.

Ms. Labrecque puts forward three possible dates with respect to the ef-fective date for variation of child support: July 1, 2007, November 1,2008 and March 1, 2010.

July 1, 200790 Ms. Labrecque argues that child support should be made retroactive

to July 1, 2007 because Mr. Labrecque misled her with respect to hisincome by claiming in his June 28, 2007 financial statement that his in-come was $33,338. Relying on that “misrepresentation”, Ms. Labrecqueargues that she entered into the November 30, 2007 minutes of settle-ment with respect to child support.


91 Applying the factors set out in S. (D.B.), it would not be fair to ordersupport retroactive to July 1, 2007. The evidence does not support a find-ing that Mr. Labrecque intentionally (or unintentionally) misled Ms.Labrecque with respect to his income. Mr. Labrecque’s sworn financialstatement set out his 2006 Line 150 income. The issue of what a farmer’sincome is for child support purposes (especially where there is a farmingcorporation) is not straightforward and Mr. Labrecque cannot be faultedfor presenting his income as being his pre-tax personal income. Ms.Labrecque was in possession of Mr. Labrecque’s 2006 personal and cor-porate tax returns as well as the company’s financial statements. She wasrepresented by legal counsel at the time the minutes of settlement werenegotiated and executed. Mr. Labrecque’s income for child support pur-poses was agreed to be $54,600 which is considerably higher than hisLine 150 income. The income agreed upon obviously represents a com-promise. Moreover, the income agreed upon was reasonable, having re-gard to Mr. Labrecque’s financial situation at the time. Ms. Labrecqueprovided no reasonable explanation for her delay in bringing her applica-tion for retroactive support. Since July, 2007, there have been two appli-cations for variation of child support (not counting the current applica-tion) and two Court orders (February 28, 2008 and March 22, 2009).There is no evidence the issue of retroactive support was raised duringthose proceedings. Moreover, there is no evidence the children have suf-fered any hardship. Finally, one of the children, Jenai, is no longer eligi-ble for support so any retroactive award would not “benefit” her.

November 1, 200892 In the alternative, Ms. Labrecque argues that the child support order

should be made retroactive to November 1, 2008 on the basis that inOctober, 2008 she wrote to Mr. Labrecque requesting financial disclo-sure. He did not respond to her request and as a result, in April, 2009,Ms. Labrecque’s lawyer again requested financial disclosure from himand eventually served him with a formal notice to disclose. While Ms.Labrecque received Mr. Labrecque’s sworn financial statement, his per-sonal tax returns and the corporate tax returns for Hardrock Farms Ltd.,she did not receive the company’s 2007 or 2008 financial statementsprior to the issue of variation of child support being heard by the Courton May 22, 2009. Despite the non-disclosure, Ms. Labrecque knew thepre-tax income of Hardrock Farms Ltd. as set out in the corporate finan-cial statements as it appears on the first line of Schedule I of the corpo-rate tax return.


93 Ms. Labrecque was represented by legal counsel in May, 2009 whenshe agreed that Mr. Labrecque’s income for child support purposesshould be remain at $54,600 per annum. The evidence establishes thatMs. Labrecque did not raise the issue of disclosure with the Court. More-over, the income agreed to exceeds the amount actually determined bythis Court to be Mr. Labrecque’s income for child support purposes atthat time. In the circumstances, I cannot find that Mr. Labrecque’s failureto provide the corporate financial statement resulted in Ms. Labrecquebeing prejudiced or misled as to his financial circumstances. A retroac-tive award of child support to November 1, 2008 is neither appropriatenor warranted.

March 1, 201094 Ms. Labrecque’s third position is that child support should be varied

effective March 1, 2010, being the date she initiated the current applica-tion for variation. Mr. Labrecque agrees with that position.

95 Mr. Labrecque’s child support obligation for 2010 would have beenbased on his 2009 income. In 2009, Mr. Labrecque’s income for childsupport purposes, based on s. 16 of the Guidelines, was $51,715. Hischild support based on that income would have been $949 per month forthree children. In fact, he paid $1,000 per month in child support. Ac-cordingly, no arrears would be owing by Mr. Labrecque with respect tochild support up to and including August, 2010.

96 The parties agree that as of August 31, 2010, Jenai was no longerentitled to child support. Thus, effective September 1, 2010, Mr. Labrec-que’s child support obligation should have been reduced to $723 permonth, being the Table support for two children based on his 2009 in-come. This results in an overpayment by Mr. Labrecque of $277 permonth or $1,108 for the period September 1, 2010 to and including De-cember, 2010.

97 Mr. Labrecque’s current income for child support purposes is$52,999, based on his 2010 income. His child support obligation forRiley and Braden is $741 per month. This payment should commenceJanuary 1, 2011.

98 Any overpayment by Mr. Labrecque with respect to child support for2010 and/or 2011 should be offset against his current child support obli-gation at the rate of $100 per month commencing August 1, 2011 andcontinuing on the first day of each and every month thereafter until paidin full.


Section 7 expenses99 There is no evidence of any s. 7 expenses other than health-related

expenses pursuant to s. 7(1)(c) of the Guidelines. These expenses relateto general health care and also to the costs of Riley’s occupational ther-apy with David Ambrose.

100 Based on Mr. Labrecque’s income of $52,999 and Ms. Labrecque’sincome of $8,977, Mr. Labrecque should pay to Ms. Labrecque his pro-portionate share, being 85.52% of any health related expenses incurredwith respect to Riley or Braden. His proportionate share of those ex-penses shall be paid within 10 days of Ms. Labrecque providing to himreceipts verifying the expense.

101 Child support as ordered herein shall continue for Riley until Decem-ber 31, 2013 and for Braden so long as he remains a child within themeaning of the Divorce Act.

Spousal support102 Ms. Labrecque requests that spousal support be reinstated on the basis

that the parties’ November 30, 2007 minutes of settlement with respect tothat issue (which was later incorporated into the February 28, 2008 Courtorder) did not meet the objectives for spousal support as set out in s.17(7) of the Divorce Act and, in particular, did not take into considera-tion the fact that Ms. Labrecque had primary care of a child from themarriage who suffers from a disability. It is Ms. Labrecque’s positionthat that disability has prevented her from becoming self-sufficient. Ms.Labrecque also argues that Mr. Labrecque misrepresented his income atthe time the agreement for spousal support was made.

103 As the application before the Court requests a variation of the Febru-ary 28, 2008 Court order, s. 17(4.1) of the Divorce Act applies. That sec-tion reads as follows:

17(4.1) Before the court makes a variation order in respect of aspousal support order, the court shall satisfy itself that a change inthe condition, means, needs or other circumstances of either formerspouse has occurred since the making fo the spousal support order orthe last variation order made in respect of that order, and, in makingthe variation order, the court shall take that change intoconsideration.

104 Pursuant to s. 17(4.1), Ms. Labrecque bears the onus of establishing amaterial change in circumstance has occurred since the making of theorder.


105 The Supreme Court of Canada, in Willick v. Willick, [1994] 3 S.C.R.670 (S.C.C.), dealt with the issue of what constitutes a material change incircumstances for the purpose of varying a child support order. In Wil-lick, Sopinka J. stated at para. 21:

[21] In deciding whether the conditions for variation exist, it is com-mon ground that the change must be a material change of circum-stances. This means a change, such that, if known at the time, wouldlikely have resulted in different terms. The corollary to this is that ifthe matter which is relied on as constituting a change was known atthe relevant time it cannot be relied on as the basis for variation....

106 This description of what constitutes a material change in circum-stances was extended to spousal support orders by the Supreme Court ofCanada in B. (G.) c. G. (L.), [1995] 3 S.C.R. 370 (S.C.C.).

107 Because the February 28, 2008 order did not result from a judicialdetermination of the issue of spousal support but rather merely incorpo-rated the parties’ November 30, 2007 minutes of settlement, the SupremeCourt of Canada decision in Miglin v. Miglin, 2003 SCC 24, [2003] 1S.C.R. 303 (S.C.C.) also applies. (See: Kehler v. Kehler, 2003 MBCA88, 39 R.F.L. (5th) 299 (Man. C.A.) at para. 23).

108 In Miglin, the parties executed a separation agreement containing afull spousal support release clause. Approximately four years later thewife applied for spousal support. The Ontario Court of Appeal grantedher request and awarded her indefinite periodic support. The husband ap-pealed to the Supreme Court of Canada who, in allowing his appeal,found that although courts have jurisdiction to override spousal supportagreements, it was not appropriate to do so in the circumstances of theMiglin case.

109 The Supreme Court of Canada in Miglin set out a two-stage analysiswith respect to applications to vary spousal support in the face of a pre-existing agreement.

110 In the first stage, a Court must consider whether the circumstancesunder which the agreement was negotiated and executed should result inthe Court “discounting” it. This includes an examination of the conditionof the parties, including any circumstances of oppression, pressure orvulnerability. Other important factors include whether the parties wereable to access professional assistance and the duration of thenegotiations.

111 If the Court is satisfied there is no reason to discount the agreement,then the Court will look to the substance of the agreement to determine


whether it is consistent with the factors and objections set out in the Di-vorce Act.

112 If the agreement was negotiated fairly and is consistent with the Di-vorce Act, then the Court must move on to the second stage of inquirywhich is to determine whether the agreement should be disregarded orgiven little weight because of material changes in the parties’ circum-stances since the signing of the agreement. Bastarache and Arbour J.J.described the second stage of the analysis at para. 91 of Miglin as fol-lows:

[91] ... Parties must take responsibility for the contract they executeas well as for their own lives. It is only where the current circum-stances represent a significant departure from the range of reasonableoutcomes anticipated by the parties, in a manner that puts them atodds with the objectives of the Act, that the court may be persuadedto give the agreement little weight. As we noted above, it would beinconsistent if a different test applied to change an agreement in theform of an initial order under s. 15.2 and to variation of an agreementincorporated into an order under s. 17. In our view, the Act does notcreate such inconsistency....

113 At para. 89 of Miglin, Justices Bastarache and Arbour provided someguidance as to what constitutes a material change in circumstances withrespect to an agreement as follows:

[89] We stress that a certain degree of change is foreseeable most ofthe time. The prospective nature of these agreements cannot be loston the parties and they must be presumed to be aware that the futureis, to a greater or lesser extent, uncertain. It will be unconvincing, forexample, to tell a judge that an agreement never contemplated thatthe job market might change, or that parenting responsibilities underan agreement might be somewhat more onerous than imagined, orthat a transition into the workforce might be challenging. Negotiatingparties should know that each person’s health cannot be guaranteedas a constant. An agreement must also contemplate, for example, thatthe relative values of assets in a property division will not necessarilyremain the same. Housing prices may rise or fall. A business maytake a downturn or become more profitable. Moreover, some changesmay be caused or provoked by the parties themselves. A party mayremarry or decide not to work. Where the parties have demonstratedtheir intention to release one another from all claims to spousal sup-port, changes of this nature are unlikely to be considered sufficient tojustify dispensing with that declared intention. That said, we repeatthat a judge is not bound by the strict Pelech standard to intervene


only once a change is shown to be “radical”. Likewise, it is unneces-sary for the party seeking court-ordered support to demonstrate thatthe circumstances rendering enforcement of the agreement inappro-priate are causally connected to the marriage or its breakdown. Thetest here is not strict foreseeability; a thorough review of case lawleaves virtually no change entirely unforeseeable. The question,rather, is the extent to which the unimpeachably negotiated agree-ment can be said to have contemplated the situation before the courtat the time of the application.

114 In this case, there was virtually no evidence with respect to how theparties arrived at their November 30, 2007 agreement with respect tospousal support. The agreement was reached at a pre-trial conferencewhere both parties were represented by independent legal counsel. Theagreement came about as a result of Mr. Labrecque’s application to ter-minate spousal support. The application was initiated more than eightyears post-separation. There was no evidence that Ms. Labrecque was inany way “oppressed” or “pressured” at the time she entered into the No-vember 30, 2007 minutes of settlement nor is there any evidence she was“vulnerable” at that time.

115 Section 17(7) of the Divorce Act sets out the objectives a court musttake into account in varying a spousal support order, namely:

(i) the Court must recognize any economic advantage or disad-vantage to either spouse arising from the marriage or itsbreakdown;

(ii) the Court must apportion between the spouses any financialconsequences arising from the care of any child of the mar-riage over and above child support;

(iii) the Court relieve any economic hardship arising from thebreakdown of the marriage; and

(iv) so far as practicable, the Court should promote the eco-nomic self-sufficiency of each spouse within a reasonabletime.

116 The provision in the parties’ November 30, 2007 minutes of settle-ment with respect to spousal support reads as follows:

1. Spousal Support

(a) Claude shall continue to pay Holly spousal support, as perpast Orders and Agreements, in the sum of $1,000.00 permonth, without change, up to the period June 30, 2008.


(b) The amount of spousal support shall be reduced to $750.00per month for the period July 1, 2008 to June 30, 2009.

(c) Upon Claude providing the June 1, 2009 payment of $750.00,his spousal support obligation will come to an end, and Hollyis barred from making any additional or further claims forsupport.

(d) all spousal support payments are tax deductible by Claudeand to be claimed as income by Holly.

117 At the time the agreement was reached, Ms. Labrecque had been inreceipt of spousal support for more than eight years. The agreement ex-tended the time she was to receive spousal support for an additional twoyears. By June, 2009, she would have been in receipt of spousal supportfor approximately ten years. It is noted that the parties’ marriage lastedfor approximately 14 years.

118 At the time the agreement was signed, the children of the marriage(all of whom still resided with Ms. Labrecque) were 17, 15 and 13 yearsof age, respectively. Based on the evidence, Ms. Labrecque was notworking at the time the agreement was entered into. (She testified shehas not worked since 2000 when she left her employment with OxfordLearning Centre). It is uncontroverted that she pursued post-secondaryeducation during the marriage and obtained a B.A. in religious studies, aBachelor of Education and training as a special education teacher. Theoldest child of the marriage, who it is alleged suffers from a sensory inte-gration disorder, was being home schooled by Ms. Labrecque at the timeof the agreement. The evidence establishes that Ms. Labrecque spentvery little time with respect to the home schooling — at best, less thanhalf an hour, a few times per week. The spousal support agreed upon andpaid since the separation exceeds that suggested by the Spousal SupportGuidelines by a significant amount (the Guideline range is from $442 permonth to $691 per month based on Mr. Labrecque having an income of$54,600).

119 Also included in the minutes of settlement was the following provi-sion with respect to Riley and his sensory integration disorder:

Within the next 60 days, the Petitioner shall have Riley attend on Dr.Karen Streilein at the Alvin Buckwold Children’s Centre for follow-up assessment. The Petitioner and Respondent shall follow the adviceand recommendation of Dr. Streilein concerning follow up treatmentand referral to any third party professionals including, but not limitedto, a counsellor, occupational therapist, and child psychologist. Both


parties shall be consulted by Dr. Streilein and any other professionalsinvolved.

The respondent shall solely pay for any and all costs associated withthe above attendances.

120 Ms. Labrecque did not follow through with this portion of the agree-ment and it is uncontroverted Riley has not received consistent treatmentwith respect to his disorder until July, 2010. There is evidence that ifRiley were to receive treatment, that he could become independentwithin a couple of years.

121 There was no evidence that Riley requires Ms. Labrecque’s presencein the home to supervise him on a daily basis. The evidence establishesthat Ms. Labrecque has not sought employment since the signing of theNovember, 2007 agreement, nor has she done anything to improve herfinancial circumstances.

122 Based on the evidence, I am not prepared to discount the parties’agreement. There is nothing in the circumstances since its making thatsuggests Ms. Labrecque was vulnerable or pressured. She had indepen-dent legal advice. The agreement appears to have adequately addressedthe objectives set out in s. 17(7) of the Divorce Act.

123 Moving to the second stage of the inquiry, the issue is whether therehas been a material change in circumstances as contemplated by the Di-vorce Act and the Supreme Court of Canada in Miglin since the signingof the November 30, 2007 agreement. Ms. Labrecque testified that noth-ing has changed for her since the signing of the agreement. There is noevidence her presence in the home is required with respect to the care ofany of the children or that her care of Riley has meant that she mustremain in the home. There is no evidence that employment would not beavailable to her. Mr. Labrecque’s income has changed very little. Con-trary to Ms. Labrecque’s allegation, I cannot find that Mr. Labrecque inany way misled her with respect to his income at the time the agreementwas signed. At that time, she had all of his financial disclosure, includingthe corporate financial statement and tax return for 2006.

124 Ms. Labrecque’s application with respect to a continuation of spousalsupport must fail.

Costs125 Pursuant to Rule 608(2), of the Queen’s Bench Rules, there is a pre-

sumption that a successful party in a family law proceeding is entitled tocosts.


126 In this case, the parties reached an agreement with respect to the sta-tus of the children following the presentation of some evidence. Mr.Labrecque was successful with respect to the balance of the issues, how-ever, given Ms. Labrecque’s current financial circumstances, I am con-cerned that an award of costs would negatively impact the children in hercare. I also note that Mr. Labrecque did not provide financial disclosurein a timely fashion. In the circumstances, there shall be no order as tocosts.

Order accordingly.


[Indexed as: Merritt v. Merritt]

Christene Ann Merritt (Applicant) and Sean Merritt(Respondent)

Ontario Superior Court of Justice

Docket: 43643-10

2011 ONSC 3528

G.A. Campbell J.

Heard: June 6, 2011

Judgment: June 9, 2011*

Family law –––– Support — Child support under federal and provincialguidelines — Variation or termination of award — Change in circum-stances — Change in means –––– Father brought motion to vary temporary or-der which determined date of April 1, 2010 as start date for retroactive spousaland child support — Motion dismissed — Court rejected argument that fatherhad not “wilfully” failed to comply with order — Father may believe that he hadgood reason why he should not have to obey order, but he intentionally, deliber-ately and consciously ignored terms of order and had set his own quantum ofsupport pending determination of issue — He was not entitled to do sounilaterally.

Cases considered by G.A. Campbell J.:

Hughes v. Hughes (2007), 2007 CarswellOnt 1977, 85 O.R. (3d) 505 (Ont.S.C.J.) — referred to

Merritt v. Merritt (2010), 2010 CarswellOnt 6849, 2010 ONSC 4959 (Ont.S.C.J.) — referred to


Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)Generally — referred to

Rules considered:

Family Law Rules, O. Reg. 114/99R. 1(8) — consideredR. 1(8)(b) — consideredR. 14(23) — considered

*Additional reasons at Merritt v. Merritt (2011), 2011 CarswellOnt 8205, 2011ONSC 4347, 5 R.F.L. (7th) 358 (Ont. S.C.J.).

Merritt v. Merritt G.A. Campbell J. 353

R. 14(23)(a) — consideredR. 18 — referred toR. 18(16) — referred toR. 24(10) — referred to

MOTION by father to vary temporary order which determined date of April 1,2010 as start date for retroactive spousal and child support.

Glenda D. McLeod, for ApplicantPaul Amey, for Respondent

G.A. Campbell J.:

1 Mr. Merritt brings a motion dated May 4, 2011 to vary the temporaryorder of MacPherson J. of September 10, 2010 (heard June 15, 2010)[Merritt v. Merritt, 2010 CarswellOnt 6849 (Ont. S.C.J.)], which orderwas retroactive to April 1, 2010 as the start date for spousal and childsupport. MacPherson J. wrote a 15 page endorsement and set out thereinparticulars of this couple’s marriage, separation and financial circum-stances. MacPherson J. also made findings relevant to Mr. Merritt’sunique employment circumstances in 2010 (and the prior two years). Iaccept those findings and particulars.

2 The action was commenced on January 7, 2010 by Ms. Merritt byApplication seeking, inter alia, a divorce and corollary relief. Hence, theproceeding goes forward within the context of the Divorce Act.

3 Apparently, in December 2010, Mr. Merritt gave notice that, as hehad not yet become employed, he would be bringing a motion to varyMacPherson J.’s temporary order for child and spousal support whichrequired him to pay $12,800 per month, based upon her finding that his“income” for 2010 was $500,000.

4 Mr. Merritt actually brought such a motion on January 13, 2011.However, through inadvertence or misadventure, that motion was dis-missed administratively on February 24, 2011, as it had not been“confirmed”.

5 As a result of that oversight, Mr. Merritt had to re-start his motion.He did so in early May 2011. That motion was argued on Monday, June6, 2011.

6 It is conceded by Mr. Merritt that, due to the fact that the September2010 Order was retroactive to April 1, 2010 (ie: 6 months × $12,800 =$76,800), and he immediately faced a rather sizeable catch-up, as of the


date of the argument before me, $18,800 of those 2010 “arrears” remainunpaid. In addition to those admitted arrears, there exists significant ad-ditional arrears for 2011.

7 Mr. Merritt found gainful full-time employment commencing Febru-ary 15, 2011. That employment pays an annual income of $200,000 plusa potential bonus of up to $60,000. Due to his lower income, he unilater-ally reduced his monthly support payments to $5,000 per month forMarch and April. He paid only $3,500 for February 2011. He had paidthe full order in January 2011.

8 Therefore, instead of meeting his obligation, as ordered for $51,200up to and including April 1, 2011, he has only actually paid $26,300. Thetotal owing as of April 1, 2011 had ballooned to $43,700.00.

9 Counsel for Ms. Merritt advises the Court that since April, Mr. Mer-ritt has only paid another $5,100 for the months of May and June. Thus,if her assertion is accurate, another $20,500 can be added to the arrears(ie: 2 × $12,800 - $5,100) for an accumulated total of child and spousalsupport owing as at June 1, 2011 of $64,200.00.

10 Of course, the reason the motion is before me is that Mr. Merritt as-serts that he has “suffered” a reduction in income from $500,000 for2010 to a mere $200,000 per year, starting from February 15, 2011(which his counsel argues results in an actual, in fact income of $175,000for the calendar year 2011).

11 The parties’ financial affairs are convoluted to say the least. Ms. Mer-ritt has made a claim for an unequal division of the remaining assetswhich include $125,000 in trust from the sale of a home in St. Georgeand $175,000 in RRSPs, all of which are registered in Mr. Merritt’sname. Despite the significant challenge to be met by Ms. Merritt beforeshe will obtain such an order (unconscionability), the brief glimpse al-lowed me of Mr. Merritt’s financial gymnastics with their pre and postvaluation day assets (the sale of their cottage and the pledging of thehome in Cambridge where Ms. Merritt and the four children reside, aswell as running up his alleged exclusive use of various lines of credit inhis and their joint names), I can not conclude that her claim will not besuccessful.

12 Accordingly, Mr. Merritt’s request that the court order that the$125,000 presently being held in trust in their joint names be paid out toreduce in half an apparent Line of Credit of about $250,000 (since if Ms.Merritt’s claim is successful, those funds and Mr. Merritt’s RRSPs ap-


pear to be the only exigible assets from which her claim could be paid)must be left for trial.

13 Despite Mr. Amey’s able argument and the common sense reactionthat reducing their debt in half (which debt is costing them both a signifi-cant interest expense, while the money in trust generates virtually no in-terest benefit to either of them) offers a realistic approach to helping theparties disentangle their financial affairs, I leave that accounting and de-termination to the trial judge.

14 While, at first glance, Mr. Merritt’s motion is well founded, despiteMs. Merritt and the children’s needs, at the outset of argument, I raisedthe provisions of Rules 14 (23) (a) and Rule 1 (8) (b). Those Rules areset out as follows:

14 . . .

(23) Failure to Obey Order Made on Motion — A party who does notobey an order that was made on motion is not entitled to any furtherorder from the court unless the court orders that this subrule does notapply, and the court may on motion, in addition to any other remedyallowed under these rules,

(a) dismiss the party’s case or strike out the party’s an-swer or any other document filed by the party;

(b) postpone the trial or any other step in the case;

(c) make any other order that is appropriate, including anorder for costs.

1 . . .

(8) Failure to Follow Rules or Obey Order — The court may dealwith a failure to follow these rules, or a failure to obey an order in thecase or a related case, by making any order that it considers neces-sary for a just determination of the matter, on any conditions that thecourt considers appropriate, including:

(a) an order for costs;

(b) an order dismissing a claim made by a party who haswilfully failed to follow the rules or obey the order.

15 Much court time (and effort by Mr. Amey) was invested to try topersuade me that Mr. Merritt was not “wilfully” disobeying MacPhersonJ.’s Order. Since Mr. Merritt’s actual financial circumstances at the timeof the September 2010 Order have degenerated from having the use of$500,000.00 pay-out dollars each year in ’08, ’09 and ’10, (during thelatter year when he was not gainfully employed by an arms length em-ployer) to now having to work full-time for only $200,000, plus bonus


(down from employment income of $304,000 per annum in 2008 and$292,000 in 2009 when he was last so employed), the argument prof-fered is that Mr. Merritt is merely recognizing the reality of his decreasein income and that there is nothing “wilfull” in that approach.

16 To bolster his argument, Mr. Amey submitted the case of Hughes v.Hughes (2007), 85 O.R. (3d) 505 (Ont. S.C.J.), March 26, 2007, Quinn J.Despite the court suggesting that Mr. Merritt take the opportunity to ei-ther (at least) pay the $18,800 arrears from 2010 (which he concedes heowes) or to enjoy a “conditional order” (if such an animal exists)whereby the court would grant him the (partial) relief he seeks and re-duce the on-going monthly spousal and child support until trial contin-gent, or conditional, upon him first paying some lump sum to retire the2010 arrears in full and some or all of the mounting 2011 monthly ar-rears. Neither he nor his counsel seemed unduly responsive to either orthose options.

17 Both counsel spent time arguing whether an adjusted, on-goingmonthly support should start in January or June 2011 (ie: adjusted basedon the SSAGs and the CSGs) and based upon whether the court wouldfind that Mr. Merritt’s income should be set at $200,000 or $175,000 (or$260,000) for 2011.

18 In the end, however (and despite my belief that the trial judge willindeed make some retroactive adjustment to Mr. Merritt’s monthly finan-cial obligation to his wife and four boys for 2011), I am unpersuaded byMr. Amey or by the reasoning of the Hughes case that I should ignorethe wording or intent of Rules 14 (23) and 1 (8).

19 Actually, I am somewhat confused by Mr. Amey’s interpretation ofthe Hughes case. He referred me to only para. 12 of Quinn J.’s decision,but when I read the case in its entirety and Quinn J.’s resulting decisionto strike Mr. Hughes’ answer-claim, I am at a loss why Mr. Ameythought that the case was helpful to Mr. Merritt’s brief. I appreciate how-ever this brining the case to my attention.

20 In the end, I reject Mr. Amey’s specious argument that Mr. Merritthas not “wilfully” failed to comply with the MacPherson J. Order. Mr.Merritt may believe that he has a good reason why he shouldn’t have toobey the Order, but he intentionally, deliberately and consciously has ig-nored the terms of the Order and has set his own quantum of supportpending a determination of the issue. As I understand the law, he is notentitled to do so unilaterally.


21 I also rule that to grant Mr. Merritt any of the relief that he seeks inthe face of his wilful disregard of a current court order would entirelynegate, nullify and render redundant the purpose of both Rules 14 (23)and Rule 1 (8).

22 Further, upon reflection, given the “condition, means, needs and othercircumstances ...” of Mr. Merritt; the fact that he has available to himsignificant savings in RRSPs; that Ms. Merritt asserts that she is livingfrugally, with the financial help of others and is using her inheritance andmaxing-out her credit cards; and that Mr. Merritt seems to have an unfet-tered access to multiple lines of credit from various lending institutions, Idecline to exercise the court’s discretion to vary or otherwise adjust theexisting order pending trial in order to “help” Mr. Merritt out of a situa-tion that he has unilaterally created himself. Of course, it doesn’t helpMr. Merritt that it is alleged that he has taunted, mocked and threatenedMs. Merritt, both by e-mail and to her face, regarding her intelligenceand that he will “destroy” her and that she will get “nothing”. Idle threatsand made in the heat of litigation, I assume. However, when taken to-gether with his alleged financial manipulations, there appears to exist lit-tle reason why the court should exercise its discretion to his benefit.

23 Accordingly, Mr. Merritt’s motion is dismissed in its entirety, withcosts to Ms. Merritt.

24 If counsel cannot resolve the costs issue between themselves, I willaccept Ms. McLeod’s brief written submissions of less than three pages,together with her bill of costs and particulars of practice as well as anyRule 18 Offers to Settle or with prejudice correspondence (per Rule 18(16)) within 10 days of the release of this Endorsement. Mr. Amey mayrespond in less than three pages, within five days of that date. No reply tothat response will be necessary (Rule 24 (10) “... decide in a summarymanner” ...).

25 Lastly, the issue of forcing this matter on to trial this fall in a peremp-tory manner was raised. I have decided that such an approach is too dra-conian. I leave the matter of the timing of the trial and any other proce-dural steps, such as mediation or settlement discussions or conferences inthe capable hands of these experienced counsel to decide when the mat-ter will be trial-ready.

Motion dismissed.


[Indexed as: Merritt v. Merritt]

Christene Ann Merritt (Applicant) and Sean Merritt(Respondent)


Docket: 43643-10

2011 ONSC 4347

G.A. Campbell J.


Family law –––– Costs — In family law proceedings generally — Scale ofcosts –––– Father’s motion to vary temporary order which determined start datefor retroactive spousal and child support was dismissed — Parties made submis-sions regarding costs — Father was ordered to pay substantial indemnity costsof $9,297.57 — It was necessary that father be held financially responsible forall of mother’s legal expenses incurred fighting off father’s flight into frivol-ity — Father persisted in pressing his ill fated and ill advised strategy despitethat his motion had little or no chance of success and was not in compliancewith Family Law Rules.

Rules considered:

Family Law Rules, O. Reg. 114/99Generally — referred toR. 14(23) — considered

ADDITIONAL REASONS regarding costs to judgment reported at Merritt v.Merritt (2011), 2011 CarswellOnt 5414, 2011 ONSC 3528, 5 R.F.L. (7th) 352(Ont. S.C.J.).

Glenda D. McLeod, for ApplicantPaul Amey, for Respondent

G.A. Campbell J.:

1 For Mr. Merritt this motion was analogous to a jaunt to a Las VegasCasino. He well knew that the house had the advantage but he rolled thedice anyway. He had the money to pay his arrears. He had the advice ofan experienced family law lawyer. Despite the Rules of Court clearlypredicting the result, he took his chances and pressed on.


2 Now, in response to a claim for costs on a substantial indemnity basisof just over $9,000 for time and effort invested by Ms. Merritt to suc-cessfully thwart his motion, Mr. Merritt argues that it is “...probable thatbut for the application of Rule 14(23)...a substantial variation or reduc-tion would have been ordered...” (my emphasis). Mr. Merritt argues thatexcept for the Rules, he might have won “at another time.” This argu-ment is specious in that the various Rules were created to prevent justsuch motions that clog up the courts unnecessarily (in this case the mo-tion consumed most of a full day of court time, space, staff and attentionthat could have been used for a motion, or motions, that did not obvi-ously face little or no chance of success and that complied with theRules), and to discourage such a cavalier disregard for scarce family fi-nancial resources.

3 Indeed, Rule 14(23) is not the only Rule that prevented Mr. Merritt’ssuccess on such a pre-trial motion when he conceded from the outset thathe was in continuing breach of an existing court order. That Mr. Merrittpersisted in pressing his ill fated and ill advised strategy establishes thebasis for why he must be held financially responsible for all of Ms. Mer-ritt’s legal expenses incurred fighting off this flight into frivolity.

4 Mr. Merritt may well succeed in his attempt to reduce child andspousal support at trial. This motion was not trial. He knew that fact anddespite that reality he persisted.

5 The substantial costs that he must now pay are the entrance fee to thecasino. He knew the odds before he entered the building. Hubris has itsprice.

6 In this case, that price is $9297.57, which costs are ordered to be paidby Mr. Merritt to Ms. Merritt forthwith.

Order accordingly.


[Indexed as: Marsh v. Jashewski]

Heather Marsh (Applicant) and Blake Jashewski (Respondent)


Docket: FS-07-24020-00

2011 ONSC 3793

Baltman J.

Heard: February 7-10; April 5, 7-8, 2011


Family law –––– Support — Child support under federal and provincialguidelines — Retroactive award — Multiple factors considered –––– Partiesmarried in March 1985 and divorced on July 22, 1991 — Parties had one child,G, who was born in January 1985 — When parties divorced, mother wasawarded custody of G and father was ordered to pay $300 per month in childsupport — Father became employed at car manufacturing plant in 1989, and re-mained there until October 2008 — Father’s earnings increased dramatically, ashe was earning nearly $100,000 by 1997 — Mother made attempts to locate fa-ther to obtain increase in child support payments, but to no avail — G attendeduniversity and intended to complete one year postgraduate certificate by springof 2012 — Mother brought application for child support retroactive to 1997, andongoing to June 2012 — Application granted in part — Father was ordered topay child support retroactive to November 2003 in amount of $45,773.24, aswell as 60 per cent of G’s special expenses until June 2012 — Father’s conductwas deplorable — Father deliberately hid his pay increases from mother — Gremained child of marriage and owed Ontario Student Assistance program$46,134 — Father would not experience undue hardship.

Family law –––– Support — Child support under federal and provincialguidelines — Retroactive award — Commencement date of retroactive pay-ments –––– Parties married in March 1985 and divorced on July 22, 1991 —Parties had one child, G, who was born in January 1985 — When parties di-vorced, mother was awarded custody of G and father was ordered to pay $300per month in child support — Father became employed at car manufacturingplant in 1989, and remained there until October 2008 — Father’s earnings in-creased dramatically, as he was earning nearly $100,000 by 1997 — Mothermade attempts to locate father to obtain increase in child support payments, butto no avail — G attended university and intended to complete one year postgrad-uate certificate by spring of 2012 — Mother brought application for child sup-port retroactive to 1997, and ongoing to June 2012 — Application granted inpart — Father was ordered to pay child support retroactive to November 2003 in

Marsh v. Jashewski 361

amount of $45,773.24, as well as 60 per cent of G’s special expenses until June2012 — Mother notified father in November 2003 that G needed financial assis-tance — Father’s clearly reprehensible behaviour justified moving time framebackwards — Mother actually retained counsel many months before she servednotice of proceedings December 2007 — G began her post secondary studies inSeptember 2003, and it would have been artificial and unfair to exclude ex-penses incurred then.

Family law –––– Support — Child support — Duty to contribute — Childwithdrawing from parental control –––– Parties married in March 1985 anddivorced on July 22, 1991 — Parties had one child, G, who was born in January1985 — When parties divorced, mother was awarded custody of G and fatherwas ordered to pay $300 per month in child support — Father became employedat car manufacturing plant in 1989, and remained there until October 2008 —Father’s earnings increased dramatically, as he was earning nearly $100,000 by1997 — Mother made attempts to locate father to obtain increase in child sup-port payments, but to no avail — By 1994, all contact ceased between father andG — Father and G became re-acquainted in 2004 for short period of time — Gattended university and intended to complete one year postgraduate certificateby spring of 2012 — Mother brought application for child support retroactive to1997, and ongoing to June 2012 — Application granted in part — Father wasordered to pay child support retroactive to November 2003 in amount of$45,773.24, as well as 60 per cent of G’s special expenses until June 2012 — Ghad not been able to withdraw from parental control — G was diligent in pursu-ing her studies — G was strongly motivated by sacrifice and dedication she ob-served in her mother — G incurred substantial debt while attending univer-sity — Despite father’s lack of formal schooling, his family profile was fairlyaccomplished.

Family law –––– Support — Child support — Duty to contribute — Child atschool –––– Parties married in March 1985 and divorced on July 22, 1991 —Parties had one child, G, who was born in January 1985 — When parties di-vorced, mother was awarded custody of G and father was ordered to pay $300per month in child support — Father became employed at car manufacturingplant in 1989, and remained there until October 2008 — Father’s earnings in-creased dramatically, as he was earning nearly $100,000 by 1997 — Mothermade attempts to locate father to obtain increase in child support payments, butto no avail — G attended university and intended to complete one year postgrad-uate certificate by spring of 2012 — Mother brought application for child sup-port retroactive to 1997, and ongoing to June 2012 — Application granted inpart — Father was ordered to pay child support retroactive to November 2003 inamount of $45,773.24, as well as 60 per cent of G’s special expenses until June2012 — G lived away from home while engaging in post-secondary studies —


Accordingly, father did not have to pay both full amount of child support andcontribute to post-secondary costs.

Cases considered by Baltman J.:

Albert v. Albert (2007), 40 R.F.L. (6th) 203, 2007 CarswellOnt 4863, [2007]O.J. No. 2964 (Ont. S.C.J.) — considered

Caterini v. Zaccaria (2010), 97 R.F.L. (6th) 249, 2010 ONSC 6473, 2010 Cars-wellOnt 9344, [2010] O.J. No. 5291 (Ont. S.C.J.) — referred to

Gagnier v. Gagnier (2002), 2002 CarswellOnt 5056, [2002] O.J. No. 2183 (Ont.S.C.J.) — referred to

Giorno v. Giorno (1992), 110 N.S.R. (2d) 87, 299 A.P.R. 87, 39 R.F.L. (3d)345, 1992 CarswellNS 63, [1992] N.S.J. No. 94 (N.S. C.A.) — referred to

Haist v. Haist (2010), 83 R.F.L. (6th) 147, 2010 CarswellOnt 1103, 2010 ONSC1283, [2010] O.J. No. 785 (Ont. S.C.J.) — referred to

MacLennan v. MacLennan (2003), 2003 NSCA 9, 2003 CarswellNS 16, 212N.S.R. (2d) 116, 665 A.P.R. 116, 35 R.F.L. (5th) 384, [2003] N.S.J. No. 15(N.S. C.A.) — considered

Martell v. Height (1994), 3 R.F.L. (4th) 104, 130 N.S.R. (2d) 318, 367 A.P.R.318, 113 D.L.R. (4th) 54, 1994 CarswellNS 45, [1994] N.S.J. No. 120 (N.S.C.A.) — considered

Metter v. Solomon (2005), 2005 CarswellOnt 986 (Ont. S.C.J.) — referred toMustang Investigations Inc. v. Ironside (2010), 103 O.R. (3d) 633, 98 C.P.C.

(6th) 105, 321 D.L.R. (4th) 357, 267 O.A.C. 302, 2010 ONSC 3444, 2010CarswellOnt 5398 (Ont. Div. Ct.) — considered

S. (D.B.) v. G. (S.R.) (2006), 61 Alta. L.R. (4th) 1, 31 R.F.L. (6th) 1, 391 A.R.297, 377 W.A.C. 297, 2006 SCC 37, 2006 CarswellAlta 976, 2006 Carswell-Alta 977, 351 N.R. 201, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297,[2006] 2 S.C.R. 231, [2006] S.C.J. No. 37 (S.C.C.) — followed

Sherlow v. Zubko (1999), 50 R.F.L. (4th) 160, [2000] 1 W.W.R. 699, 1999CarswellAlta 472, 76 Alta. L.R. (3d) 202, 247 A.R. 66, 1999 ABQB 435,[1999] A.J. No. 644 (Alta. Q.B.) — referred to

Taylor v. Taylor (2009), 69 R.F.L. (6th) 310, 2009 CarswellOnt 2261, [2009]O.J. No. 1749 (Ont. S.C.J.) — referred to

Whitton v. Whitton (1989), 21 R.F.L. (3d) 261, 34 O.A.C. 31, 1989 CarswellOnt265, [1989] O.J. No. 1002 (Ont. C.A.) — referred to


Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)s. 2(1) — considereds. 15.1(1) [en. 1997, c. 1, s. 2] — considered

Marsh v. Jashewski Baltman J. 363



Generally — referred tos. 3(2)(b) — considereds. 7 — referred tos. 7(2) — consideredSched, s. 4(a) — referred to

APPLICATION by mother for child support retroactive to 1997, and ongoing toJune 2012.

Heather Marsh, for herselfA. Vimal, for Respondent

Baltman J.:

1 Most parents hope to see their children succeed in life. That oftenincludes supporting them through college or university, to the extenttheir means permit and the goal is reasonable for their child.

2 This case is a sad exception. Gina Jashewski is the 26 year old daugh-ter of Heather Marsh and Blake Jashewski. Her parents separated whenshe was five years old and she was raised almost exclusively by hermother. The father’s financial contribution was paltry throughout, eventhough during many of those years he was earning close to six figures ormore. In particular, he spurned Gina’s efforts to achieve a post secondaryeducation. Despite that, and thanks largely to the dedication and sacrificeof her mother, Gina has completed both a Diploma in Journalism and aBachelor of Political Science, and will soon be finished a post graduatedegree and able to enter the workforce.

3 For a variety of reasons, which I explain below, the mother was una-ble to pursue the father for financial support for many years. She is nowseeking child support retroactive to 1997, and ongoing to June 2012,when Gina graduates from college.

4 In answering the overriding question of whether child support is pay-able, I have considered the following issues:

a. Should a retroactive order for child support be made, and if so, towhat date?

b. Has Gina ceased to be a child of the marriage, and if so, when?


c. Depending on the answers to #1 and #2, what is the quantum ofretroactive and ongoing child support payable by the father?

5 The mother represented herself at trial, while the father was repre-sented by counsel, Ms. A. Vimal.

Factual Background6 This matter began as a motion by the mother for retroactive and

ongoing child support for Gina, who is now 26 years old. It was laterconverted into a trial of the issue where oral evidence could be adduced.

7 The mother is now 45 years old and the father 50. The couple met in1984 in Thunder Bay. Gina was born in January 1985 and the couplemarried in March 1985; the mother was then 18 and the father 23.

8 It was a rocky marriage from the start and dissolved completely bythe time Gina was five. The couple obtained a divorce on July 22, 1991.The Divorce Judgment of Clarke J. granted the mother custody and or-dered the father to pay $300.00 per month in child support, to be indexedannually in accordance with the cost of living.

9 The divorce order is silent with respect to ongoing income disclosure.The divorce was undefended and it appears that the support figure wasbased on the father’s earnings from unemployment insurance. As it turnsout, however, the father became employed at the Toyota manufacturingplant in Cambridge, Ontario in 1989, and remained there until October2008. Over that period his earnings increased dramatically; by 1997 hewas earning nearly $100,000 annually.

10 Although it appears that at the time the divorce was granted themother was aware the father was working at Toyota, he did not volunteerwhat his earnings were and for many years the mother did not pursue thatissue aggressively, for reasons which I discuss below.

11 Shortly after the divorce was granted the mother and Gina moved toElliot Lake, to be near the mother’s family. For the next several years thefather’s contact with Gina was sporadic and, according to Gina, unpleas-ant. By 1994 all contact ceased.

12 The father continued working at Toyota until 2008, when he was ter-minated. He claims he lived mostly on employment insurance for 2009and 2010. He is currently employed fulltime, with anticipated earnings in2011 of $54,000.

13 After completing high school Gina attended Humber College inEtobicoke, from September 2003 until June 2006. She graduated with a


Diploma in Journalism. In the summer of 2004 Gina went to live withher father in Cambridge for the summer because she obtained a summerjob at Toyota. However, the living arrangements broke down after oneweek and Gina moved into a student residence for the remainder of thesummer. She has had no contact with her father since then, although sheworked at Toyota for the remainder of the 2004 summer and for the sum-mers in 2006 and 2007.

14 Since September 2006 Gina has been pursuing a Bachelor’s degree inPolitical Science from Carlton University, in Ottawa. She will graduatethis month. She has also been accepted into and intends to complete aone year postgraduate certificate at Humber College in television produc-ing and writing, ending in the spring of 2012, at which time she intendsto enter the workforce.

15 The amount of child support has not increased since the date of theDivorce Judgment, except in accordance with the cost of living increases.Moreover, because the order was made before the Guidelines came intoeffect, those payments have throughout, to this day, been tax deductibleto the father but taxable to the mother.

16 Over the years the mother made the occasional attempt to locate thefather in order to obtain an increase in child support payments and havehim contribute to Gina’s post secondary expenses. She produced phonebills from 1996 and 1997 reflecting calls to the father’s brother and fa-ther, but testified they hung up on her when she asked for the father’saddress. In October of 2000 she retained Douglas Kearns, a lawyer inElliot Lake, who sent a letter to the last known address she had for thefather. She testified that after the letter was returned unopened Mr.Kearns advised her that in order for her to proceed further he required aretainer to bring a motion for substituted service, which she could notafford. She tried to get funding from Legal Aid, to no avail.

17 Eventually the mother learned of the father’s email address and inNovember 2003, just after Gina had begun her college education, shewrote to him asking for “financial assistance” for Gina. Nothing wasforthcoming. In 2006, she sent the father an email advising that Gina hadgraduated with a diploma in Journalism and that she would be retaining alawyer in order to vary the support agreement. His response was a seriesof profanities, and to ridicule her for incurring legal fees.

18 The motion to vary support was served on the father on December 10,2007. It was preceded by a motion in August 2007 for substituted serviceadvanced by the mother’s then solicitor, Ms. Uppal. The motion resulted


in an Order permitting substituted service on the father’s brother, whoalerted the father to the proceedings.

19 The mother is now seeking a retroactive increase in child supportfrom 1997, when the Guidelines came into effect, until today, plus ongo-ing child support until Gina completes her post graduate degree. Sheclaims she is entitled to recover that far back because of the father’sblameworthy conduct and because her personal circumstances did notpermit her to pursue him aggressively for many years. She also seeks hisproportionate contribution to Gina’s post-secondary and dental expenses.

20 The father maintains that it is unreasonable to award retroactive childsupport because the mother could have but failed to initiate proceedingsearlier. Moreover, he argues, Gina ceased to be a child of the marriage by2007, when this proceeding was commenced, disentitling her to childsupport thereafter and justifying a repayment to him of monies since re-ceived by the mother. I note that despite that latter submission, he hasnever formally filed a motion for repayment. I will comment later onwhat I suspect are the reasons for his inactivity.

21 To provide some perspective, the chart below sets out the earnings ofthe mother, the father and Gina from 1997 onwards.

INCOME TABLE FOR THE PARTIES

YEAR HEATHER GINA BLAKEIncludes $300/mo. (daughter) Tax deduction ofIn child support, $300/mo for child sup-indexed annually port, indexed annually

1997 14,644.00 99,567.00

1998 10,144.00 101,945.00

1999 25,329.00 102,272.00

2000 19,526.00 102,272.00

2001 17,147.00 105,340.00 (estimated.)

2002 23,671.00 108,500.00 (estimated.)

2003 42,906.00 112,840.00 (estimated.)

2004 50,449.00 18,044 116,899.00

2005 52,046.00 4,204.20 106,273.00

2006 55,196.00 19,458.47 106,817.00

2007 55,819.00 19,730.00 93,446.00


2008 59,610.00 20,308.11 169,111.00 (includes sev-erance pay)

2009 57,956.00 1,010.05 26,499.00

2010 22,772,68 None 32,469.00

2011 35,734.40 54,072.00 (based on earn-ings to date)

22 The majority of these figures are based on T4 slips or Notices of As-sessment, and the father does not dispute their accuracy. However, de-spite numerous requests, the father failed to produce income data for theyears 2001-2003 inclusive. I have therefore estimated his earnings forthose years on the assumption his salary increased progressively between2000 (when he earned $102,272) and 2004 ($116,899). The father dis-agrees with this approach, noting that in 2005 his salary dropped to$106,273, and therefore I should not assume regular increases in preced-ing years. However, given his failure to provide income data for thoseyears, the fairest inference is that his earnings, at the very least, increasedsteadily.

Issue #1: Should a retroactive order for child support be made? If so,to what date?

23 Although the parties referred to several cases dealing with retroactivepayments of child support, both relied in particular on the Supreme Courtof Canada case of S. (D.B.) v. G. (S.R.), 2006 SCC 37 (S.C.C.). Writingfor the majority, Bastarache J. set out four key factors that a court shouldconsider before awarding retroactive child support:

a) whether the recipient parent has a reasonable excuse for herdelay;

b) the conduct of the payor parent;

c) the circumstances of the child; and

d) any hardship occasioned by a retroactive award.24 Beginning with the first factor, I find the mother has a partial but not

complete excuse for her delay. Her primary reason for not initiating theproceeding earlier was that she could not locate the father, and that as asingle mother on a meagre income she had neither the financial meansnor the emotional strength to pursue him. Undeniably those were trueobstacles. However, she conceded that certainly by the summer of 2004she knew his address (on Blair Road) in Cambridge, because Gina livedin his apartment briefly. And by that point she was earning over $50,000


annually, arguably enough to at least have a lawyer initiate proceedingsand give her some advice. Yet she remained inactive until 2006, whenshe contacted him by email.

25 That said, the second factor inures strongly in the mother’s favour,because the father’s conduct here was deplorable. While the divorce or-der did not specifically require ongoing disclosure, I find he deliberatelyhid his pay increases from the mother. Even though his income skyrock-eted after joining Toyota, not once did he advise the mother of this oroffer to increase his payments. I do not believe his testimony that he didnot know where the mother was living, but even if that was so he couldhave reported the increase to the Family Responsibility Office, whichwas making automatic deductions from his paycheque.

26 When finally contacted directly by the mother, the father’s respond-ing emails make clear his contempt for any obligations he might have,moral or financial. He mocks the mother’s attempts to recover monies forGina and insults both mother and daughter with extreme profanities. Hegloats over the mother’s predicted failure in court. Essentially, he tried tointimidate the mother into not proceeding. Given his reaction when hewas notified by the mother, I have no doubt that any earlier notice wouldalso have been met with derision.

27 The father argued that because he remained in compliance with theoriginal court order, he met all his support obligations. In some casessuch a presumption may follow. But in this case, where the father’s in-come changed so dramatically after the divorce, I find he was completelyunreasonable in relying on that order and failing to disclose his revisedability to pay.

28 I find it significant that although at this trial the father argues that hedeserves a repayment from at least 2007, he never filed a motion to thateffect. That is because, in my view, over many years and until today hehas known he was getting off easy at only $300 a month, tax deductible.As long as Gina was in school he figured it was wiser not to rattle thecage.

29 The father’s resistance to any court proceedings was evident from hisinitial response to the mother’s motion. He was served with the motionon December 10, 2007. By the initial Case Conference on January 2,2008, he had not served any responding materials, so the matter was ad-journed to January 25th and the father given until January 18th to serveand file responding materials and income verification. When the matterresumed on January 25th the motions judge noted that he had yet to file


any materials. She adjourned the matter to February 28th, peremptory onthe father, and required him to pay $1,000 in costs, apparently unim-pressed by his excuse that he had “been unable to get a lawyer” fornearly two and a half months.

30 I turn now to the third factor, Gina’s circumstances. Gina is still inschool and, as I find below, remains a child of the marriage. Although forthree of the summers during the period in question she earned a substan-tial income (for a student), during many of the relevant years she hadlittle or no income, through no fault of her own. She currently owes theOntario Student Assistance Program (OSAP) $46,134, a substantial bur-den for her to carry upon graduation. She will not graduate from her postgraduate studies until the spring of 2012, and even then will likely beginwork at entry level earnings. In my view, these circumstances favour aretroactive award.

31 As for the fourth factor, namely any hardship occasioned by a retro-active award, I note first that the father has no other dependants; not onlyis Gina his only child, but the mother has waived spousal support. Sec-ond, while I appreciate that the father’s current salary falls below hishistoric earnings, for many years he reaped very high earnings and paidvery little in support; that allowed him to enjoy a good lifestyle and accu-mulate nearly $300,000 in savings (RRSP’s and pension payout).

32 Third, there is also the issue, raised by the mother, of whether incomeshould be imputed to the father. His explanation as to why he was laidoff from Toyota is feeble; he blamed Gina, suggesting that she circulatedfalse rumours about him which caused him to be ostracized to the pointwhere management decided to terminate him. Yet he produced no docu-mentation from Toyota to that effect, and based on his pugnacious atti-tude and what I gleaned from his testimony at trial, if he was pushed outhe was largely the author of his own misfortune.

33 I am also sceptical of the father’s allegedly modest earnings in 2009and 2010. He produced no reliable evidence of job search efforts duringthose years, nor did he explain satisfactorily why his current income isonly half of what it was over many years. While I am not prepared on theevidence before me to firmly impute him with additional income, on thebalance of probabilities I find his reported earnings to be conservative.

34 Weighing the cumulative effect of my conclusions on the four factors,I find that retroactive support is justified. Any unexplained delay by themother is outweighed by the father’s conduct, Gina’s needs, and a man-ageable demand upon the father given his assets.


35 Having found that a retroactive award is justified, I must now deter-mine how far back it should go. In S. (D.B.) v. G. (S.R.), Bastarache J.stated that as a general rule the award should be retroactive to the date ofeffective notice by the recipient parent that child support should be paidor increased. Effective notice does not require the recipient parent to takelegal action; all that is required is that the topic be broached. He added,however, that usually support awards should not go back more than threeyears before formal notice was given to the payor parent.

36 In this case, the gap between those two dates is closer to four years.In November 2003 the mother notified the father by email that Ginaneeded financial assistance. Although her email does not formally referto an increase in “child support”, I am satisfied the father well knew thatthat is essentially what the mother was seeking. However, the father wasnot formally served with notice of these proceedings until December2007.

37 While that gap is slightly over four years, I find that payments in thiscase should be retroactive to November 2003, for three reasons. First,Bastarache J. also noted that when the payor parent has engaged inblameworthy conduct, payments may be retroactive to when the circum-stances changed materially. I have clearly found such conduct, and there-fore could, in theory, consider retroactivity back to 1997, if not earlier.Given what I have found to be some unjustified delay by the mother, Iam not prepared to go that far. However, the father’s clearly reprehensi-ble behaviour justifies moving the timeframe backwards.

38 Second, the mother actually retained counsel many months beforeDecember 2007. As far back as July 2007 Ms. Uppal’s office made nu-merous attempts to locate the father. This included searching the Canada411 website; a driver’s license plate search; a driver’s license numbersearch, and a skip trace. All were unsuccessful. The father testified thathe moved out of the Blair Road apartment (in Cambridge) in late 2006 orearly 2007, and therefore presumably could not be served there. It wasclear by then from the father’s abusive emails that he would not volun-teer his address and I would not be surprised if he took deliberate steps toconceal it. All this necessitated a motion for substituted service, drainingsome of the mother’s precious funds before the litigation could even getoff the ground.

39 Third, Gina began her post secondary studies in September of 2003.From that date until at least the completion of her first diploma there is alogical continuum in her claim for post-secondary expenses, and it would


be both artificial and unfair to exclude the schooling expenses incurred inthe fall of 2003.

40 For all those reasons, I determine that the claim for retroactivityshould extend back to November 2003. By then Gina had begun herpost-secondary studies and the mother had given the father effective no-tice of the forthcoming claim.

Issue # 2: Has Gina ceased to be a child of the marriage, and if so,when?

a. The Legal Framework41 The court’s power to order a parent to pay child support arises from s.

15.1(1) of the Divorce Act. That provision stipulates that the obligationdepends upon a child being a “child of the marriage”. Where the child is18 years or older section 2(1) of the Act provides she must be unable towithdraw from her parents’ charge or obtain the necessaries of life “byreason of illness, disability or other cause.” The term “other cause” usu-ally means continued education or training: Giorno v. Giorno (1992), 39R.F.L. (3d) 345 (N.S. C.A.); Sherlow v. Zubko, [1999] A.J. No. 644(Alta. Q.B.)

42 The onus of proving that a child satisfies the statutory criteria in thedefinition is on the person claiming the support: Whitton v. Whitton(1989), 21 R.F.L. (3d) 261 (Ont. C.A.)

43 As a general rule, if a child is diligently pursuing studies in a suitableprogram and there is evidence establishing a need for support, there is astrong presumption that support should be provided for at least her initialcollege or university program: Caterini v. Zaccaria, [2010] O.J. No.5291 (Ont. S.C.J.), para. 99; Metter v. Solomon, 2005 CarswellOnt 986,[2005] W.D.F.L. 1856 (Ont. S.C.J.).

44 The entitlement of post-secondary education, and in particular secondand third post-secondary programs, depends on the circumstances of thecase. The factors most often cited include (i) the financial circumstancesof the family; (ii) the child’s educational and career plans; (iii) the child’sage; (iv) the child’s academic performance; (v) the family’s educationalexpectations; (vi) the parent’s involvement in the decision making pro-cess; and (vii) the extent to which the program prepares the child to be-come financially independent: Albert v. Albert, [2007] O.J. No. 2964(Ont. S.C.J.), para. 50.


45 Although in the past some courts hesitated to grant support beyond afirst degree, that is no longer the case: Albert, paras. 49-56; Caterini,paras. 99-106; Haist v. Haist, [2010] O.J. No. 785 (Ont. S.C.J.), paras.54-58; MacLennan v. MacLennan, [2003] N.S.J. No. 15 (N.S. C.A.), pa-ras. 37-41. In MacLennan the court (at para. 38) cited with approval theview of Freeman J.A. in Martell v. Height (1994), 130 N.S.R. (2d) 318(N.S. C.A.):

It is clear from the various authorities cited by counsel that courtsrecognize jurisdiction under s. 2(1) of the Divorce Act to hold parentsresponsible for children over sixteen during their period of depen-dency. How long that period continues is a question of fact for thetrial judge in each case. There is no arbitrary cut-off point based ei-ther on age or scholastic attainment, although as these increase theonus of proving dependency grows heavier. As a general rule parentsof a bona fide student will remain responsible until the child hasreached a level of education, commensurate with the abilities he orshe has demonstrated, which fit the child for entry-level employmentin an appropriate field. In making this determination the trial judgecannot be blind to prevailing social and economic conditions: a bach-elor’s degree no longer assures self-sufficiency.

[emphasis added]

b. The Factual Context

i. Gina46 Gina’s uncontradicted evidence established that throughout most of

her schooling she has been an accomplished if not gifted student. Shewas on the honour roll right through elementary school; by Grade 5, shewas classified as gifted and from that point until the end of high schoolplaced in gifted classes.

47 Gina turned 18 in January of 2003, and completed Grade 12 in June2003. She graduated from high school on the honour roll and with ascholarship recognizing “outstanding academic achievement”. By thatpoint she was already interested in becoming a reporter; she had doneparticularly well in Grade 12 English and her teacher had noted that shewas a skilled writer. She was also influenced by her grandfather, whowas an avid reader of newspapers. She therefore decided to pursue a de-gree in journalism and broadcasting at Humber College, choosing thatparticular school because it was close to home, then Brampton. Ginatook a loan through OSAP to fund her first year costs, as her part-timejob at movie theatre produced only modest income.


48 In early 2004, while in her first year at Humber, Gina became reac-quainted with her father over email. He suggested she take advantage ofa summer employment program offered by Toyota to employees’ chil-dren engaged in post-secondary studies. This was lucrative employmentin the factory at Guelph, and so she accepted. As the summer of 2004approached her father, who was living with his girlfriend, offered to lether stay rent-free in their apartment, which was conveniently locatedclose to the Toyota plant.

49 The living experiment was a disaster, and came to an abrupt end afteronly one week of cohabitation. Gina and her father fought. Police werecalled. Gina’s belongings ended up on the curb, and her mother came toget her. In their testimony Gina and her father each blamed the other forthe breakdown. It may be impossible and in any case is unnecessary forme to resolve who was “at fault”; however, that the renewal of this rela-tionship was forever doomed became evident from the father’s email toGina some months later: “You called the cops under false pretences.Your [sic] lucky I don’t sue you and your whore mother.”

50 For the balance of the summer Gina lived in the student residence atConestoga College, in Guelph. As she did not have a car she took taxis toand from work or got a lift from fellow employees. Fortunately, she andher father worked in entirely different parts of the plant, and thereforewere not required to interact.

51 In her second year at Humber Gina applied for and became a crimereporter for the college newspaper; in her final year she was hired as themanaging editor of the paper. During both those academic years sheshared an apartment near the college in order to be available for themany responsibilities that went along with those positions.

52 Gina did not return to Toyota during the summer of 2005, and earnedonly modest income. However, she returned to Toyota for the summersof 2006, 2007 and 2008, as she was able to organize employment directlywith Toyota without involving her father, who still worked there. Duringthose summers she lived in the residence at Conestoga.

53 Gina graduated from Humber in June 2006 with a Diploma in Jour-nalism. Her grades were good, on average, although they ranged fromA’s to C’s depending on the particular course.

54 In September 2006 Gina began a political science program at Carlton;she will graduate with an honours degree this month, June 2011. Ginatestified that she decided to pursue this degree in order to broaden hergeneral knowledge base and obtain credibility as a serious journalist,


qualified to report on political matters both at home and abroad. Both thecourses she chose while at Carlton and the marks she achieved bear thatout; the vast majority deal with political thought or institutions in Canadaand internationally, and she achieved mostly A’s and B’s throughout.

55 Following graduation from Carlton, Gina will pursue a one year post-graduate program at Humber in television writing and production, fromSeptember 2011 to June 2012. She explained that this program is bothpractical and highly specialized, intended to both capitalize on her previ-ous education and prepare her to be gainfully employed upon graduation;the program includes an internship, for that very purpose. During theprogram she will live near campus.

ii. Other family members56 Gina’s father, the respondent in this matter, completed Grade 13 and

began university but was forced to leave, according to him, part waythrough first year due to lack of funds. He was employed as a salesmanwhen he met Gina’s mother, but in subsequent years worked on and off.At some point he became certified as an electrician and by 1989 obtainedemployment at Toyota, whereupon his income soared to over $78,000.Thereafter he enjoyed regular pay increases at Toyota and for most of hisyears there earned over $100,000, although his actual job title was nevermade clear. He currently works as an electrician.

57 Gina’s mother, the applicant, was a teenage bride caught in a shotgunmarriage; Gina was born seven months after the wedding, when themother was only 18 and half way through Grade 12. She left school inJanuary 1985 when Gina was born.

58 As a result, the mother never formally completed high school. How-ever, through a series of remarkable steps, she has significantly upgradedher education and job skills, demonstrating the value she places onschooling.

59 When Gina was approximately five years old, and attending kinder-garten, the mother applied and was accepted as a mature student to acollege program at Dryden College. This allowed her to achieve her highschool equivalent. Over the following years she worked as a supportcounsellor, earning modest income, while raising Gina on her own.

60 In 2000 the mother and Gina moved to Brampton. The motherworked as a counsellor for a young woman with autism and cerebralpalsy. In 2003 the mother enrolled into a Social Service Worker Diplomaprogram at Humber College to upgrade her credentials and become eligi-


ble for a managerial position. On a full time basis the program normallytakes two years; because the mother was working she completed it on apart-time basis over three years.

61 After completing the program she obtained a managerial position,where she stayed until 2009. The mother explained that in 2009 hermother (Gina’s maternal grandmother) and her best friend both died.Those events, along with the stress of mounting this court case, causedher to be ineffective at work, and she was therefore fired.

62 The mother relocated to Stratford, where she now lives. She obtainedthree part-time employment contracts as a counsellor for adults withDown’s syndrome and autism. Most recently she obtained a counsellingposition at the independent living centre in Waterloo, where she is hap-pily employed on a full time basis.

63 In addition to her employment, the mother’s unchallenged evidence isthat she has always worked as a volunteer, wherever she lived, for causesranging from epilepsy to victims of crime. She did this “to show Ginathat community work is as important as academic studies”.

64 The father’s sister, Barbara Jaszewski, also testified. Ms. Jaszewski,who now lives in Berlin, completed her undergraduate degree and thenobtained an MBA. She stated that none of her other siblings obtained apost-graduate degree. However, she described her brother, Gina’s father,as very smart. And her son, Shawn, is a police officer in Peel Region.

c. Analysis65 The family picture is thus one that, while varying in educational level,

demonstrates considerable ambition and intelligence. The mother in par-ticular, who was the sole adult in the family with consistent influenceupon Gina, is a great exemplar of achievement. As a single mother on alimited income, and with virtually no material or emotional support fromGina’s father, she returned to school and significantly upgraded herself,with a corresponding improvement in income. Significantly, Gina testi-fied that her mother was inspirational in her own decision to attain post-secondary training: “she expected me to be a doctor by day and a lawyerby night”.

66 The father argued that Gina’s post-secondary education “is wellabove the benchmark set by her parents”. No one on her mother’s sidehad any post-secondary education. On her father’s side, no one had morethan one degree, other than Barbara. But that history is not, in my view,determinative in today’s society. Parents now commonly encourage their


children to surpass them. They recognize that in a knowledge-basedeconomy, brains rather than brawn spell success. That Gina’s father didnot approve of or encourage her educational endeavours speaks more tohis self-absorption and immaturity.

67 The father also submits that Gina withdrew from parental control byvirtue of her summer employment at Toyota, which enabled her to earn$20,000 — enough, he says, to support herself. I disagree. It is tellingthat the summer program at Toyota was available only to persons en-gaged in a full-time post-secondary program. Its goal was clearly to sup-port students on their road to independence by helping to fund educa-tional costs. Unlike the father, the management at Toyota clearlyrecognized that one is dependent upon the other. Without those funds,Gina would not have been able to pursue her post-secondary studies. Asit was, she still incurred nearly $50,000 of debt through OSAP loans.

68 The father also pointed out that during much of Gina’s post-secon-dary studies she was living away from home, again suggesting she wasindependent. However, she had little choice: although she lived with hermother during her first year at Humber, during her second and third yearsher activities on campus and with the school newspaper made it impracti-cal for her to continue commuting to Brampton. Obviously, while shewas in Ottawa attending Carlton, she could not live with her mother. Norcan she do so in the upcoming year when she returns to Humber, becauseher mother is now living in Stratford.

69 Moreover, throughout Gina’s post-secondary studies the mother hascontinually supported her financially, in one form or another. While insome of the years Gina used her earnings from Toyota (net of taxes, ac-commodation and other related expenses) to pay for tuition and resi-dency, in other years her mother gave her money for those purposes. Andthroughout Gina’s schooling her mother regularly gave her money forother expenses, such as groceries, books, lab fees, and personal care. Justas importantly, her mother also maintained the family home for Gina,which Gina returned to on holidays, occasional weekends, and the sum-mers of 2009 and 2010, and where she plans to spend this summer.

70 All of this confirms that Gina has not been able to withdraw fromparental control.

71 In summary, for the following reasons I have concluded that Ginacontinues to be a child of the marriage, and the father should support herto June 2012, when she completes her post-graduate program: Gina hasbeen diligent in pursuing her studies and is focussed on a viable career to


which she seems well suited; she is strongly motivated by the sacrificeand dedication she observed in her mother over the years; she incurredsubstantial debt while attending university because her mother’s earningsand her part-time employment were insufficient to fund her schooling;and despite the father’s lack of formal schooling, his family profile as awhole is fairly accomplished.

Issue #3: What is the quantum of retroactive and ongoing supportpayable by the father?

72 The period in question spans from November 2003 to June 2012.With the exception of her first year at Humber, during that entire periodGina has been or will be living away from home while engaged in post-secondary studies. Although she spent some of her summers and all ofthe major holidays at home, she also lived away during those summerswhen she was working at Toyota and for part of one summer when shetravelled in Europe on a bursary.

73 The case law indicates that where a child is living away from homewhile attending university, the table amount is generally not appropriate:Albert, paras. 57-9; Taylor v. Taylor, [2009] O.J. No. 1749 (Ont. S.C.J.).The father should not have to both pay the full amount of child supportand contribute to post-secondary costs.

74 Subsection 3(2)(b) of the Guidelines provides that in those circum-stances, the court must consider the means, needs and other circum-stances of the child, along with the financial ability of each parent tocontribute to the child’s support.

75 Obviously in this case, the father never paid anything even close tothe table amount during the years in issue. The following table demon-strates that from 2003 to 2011, he paid approximately $40,000.00 less inchild support than the Guideline amounts (ignoring the additional dispar-ity that the payments were tax deductible to him but taxable in themother’s hands):

GUIDELINE AMOUNTS COMPARED WITH ACTUALAMOUNTS PAID

YEAR GUIDELINE ACTUAL DIFFERENCE

2003 11,724.00 4,324.00 $7,400.00

2004 12,096.00 4,594.00 $7,502.00

2005 11,112.00 4,695.00 $6,417.00


2006 11,160.00 4,784.00 $6,376.00

2007 9,900.00 4,884.00 $5,016.00

2008 16,740.00 5,020.00 $11,720.00

2009 2,736.00 5,100.00 $-2,364.00

2010 3,576.00 5,200.00 $-1,624.00

2011 3,006.00 2,665.00 (est.)1 $341.00

TOTAL 82,050.00 41,266.00 $40,784.00

76 These figures suggest that all the father has effectively done duringthe relevant years is provide the mother with a modest contribution tomaintaining the home for Gina to return to during holidays and the occa-sional summer. In Albert, in the absence of specific evidence as to thecost of maintaining the home while one child is away at school, the courtordered $250 per month. After factoring in his tax benefit Gina’s fatherwas paying even less than that. He has, therefore, already benefited to themaximum from any reduction he might have enjoyed while Gina wasliving away from home.

77 That leaves the issue of his proportionate share of Gina’s universitycosts. The mother prepared a chart below, summarizing those costs. Im-portantly, however, the mother did not include in this chart other legiti-mate expenses connected to Gina’s schooling, such as food, clothing, toi-letries, books, computer and camera equipment, and transportation. Sheexcluded those items solely because she did not have receipts. Nonethe-less, there is no doubt Gina incurred such expenses and they are directlyrelated to her educational pursuits. They are, therefore, properly recover-able. In my view, $650.00 per month is a reasonable estimate for those

1This amount has been estimated using the 2010 figure for Ontario from Statis-tics Canada, Consumer Price Index, historical summary, by provinceor territory (2006 to 2010) (online: Statistics Canada,http://www40.statcan.ca/l01/cst01/econ150a-eng.htm).


“other” expenses, and I have therefore added that into the followingchart.

EXTRAORDINARY EXPENSE SUMMARY CHART

YEAR TUITION RESIDENCE2 OTHER TOTAL(Food,

clothing,transportation,

books,equipment,

etc.) at 650/mo

2003 1195.00 0.00 2600.00 3795.00

2004 2505.51 2895.00 5200.00 10600.51

2005 2510.98 7195.00 5200.00 14905.98

2006 3955.13 3300.00 5200.00 12455.13

2007 5178.83 3200.00 5200.00 13578.83

2008 5419.04 3600.00 5200.00 14219.04

2009 5411.78 5302.00 5200.00 15913.78

2010 5940.57 3075.00 5200.00 14215.57

2011 2034.81 2200.00 2600.00 6834.81

TOTAL 106518.65

78 The sole remaining task is to determine what Gina’s contributionshould be. Section 7(2) of the Guidelines, which deals with contributionsto special and extraordinary expenses, requires the court to considerwhether a child is able to contribute to her education expenses. Whilethat determination is case specific, courts have generally held that adultchildren should, where able, contribute from employment income. Thatsaid, they are not expected to contribute all their earnings, as they shouldderive some personal benefit from their labour: Gagnier v. Gagnier,[2002] O.J. No. 2183 (Ont. S.C.J.) at paras. 53-8.

79 In this case, considering all the circumstances, I find it reasonable forGina to contribute one-third of her post-secondary s.7 expenses, leaving

2These figures address Gina’s residence costs during the school years, but donot include the $8,600.00 total cost of residence or other accommodation duringthe summers of 2004, 2006, 2007 and 2008 when Gina worked at the Toyotaplant.


a balance of $71,012.43 to be apportioned between the parties.3 Giventheir respective incomes during the relevant years, according to the fol-lowing chart this will result in the father owing the mother $45,021.02.YEAR TOTAL S. 7 GINA’S BALANCE FATHER’S FATHER’S

EXPENSES CONTRIBUTION PAYABLE % OF S. 7 S. 7TO S. 7 (1/3 OF FOR S. 7 BALANCE OWING

TOTAL)

2003 3795.00 1265.00 2530.00 74.5% 1885.36

2004 10600.51 3533.50 7067.01 71.8% 5075.92

2005 14905.98 4968.66 9937.32 69.2% 6874.37

2006 12455.13 4151.71 8303.42 67.9% 5641.11

2007 13578.83 4526.28 9052.55 64.7% 5858.98

2008 14219.04 4739.68 9479.36 75.6% 7166.10

2009 15913.78 5304.59 10609.19 33.4% 3542.72

2010 14215.57 4738.52 9477.05 64.9% 6149.08

2011 6834.81 2278.27 4556.54 62.1% 2827.37

TO- 106518.65 35506.22 71012.43 $45021.02TAL

80 In addition, the father shall pay his proportionate share of s. 7 ex-penses for the remainder of 2011, and from January until June 2012,when Gina graduates from Humber.

81 Finally, there are dental bills to which the father must contribute hisshare. The evidence establishes that in 2006 the mother incurred $665.95in dental expenses for Gina, and $463.75 in 2007. Those amounts werein excess of any costs recoverable through her employment. The father’sproportionate share for those amounts totals $752.22.

Conclusion82 I have concluded that the father owes the mother $45,021.02 in post-

secondary expenses, plus $752.22 in dental expenses, for a total of$45,773.24. He shall also pay his proportionate share (i.e. 60%) of s. 7

3I note in passing that Gina’s contribution is equivalent to approximately 45% ofher after tax income estimated in accordance with the lowest tax bracket.Among other things, this enables her to cover the expenses associated with earn-ing summer income, i.e. accommodation, groceries and transportation to andfrom work. It also permits her to derive some personal benefit from her labour.


expenses for the remainder of 2011, and from January 2012 until June2012, when Gina graduates from Humber.

83 Due to the father’s historic attempts to avoid and defeat the mother’slegitimate claims, a copy of this judgment shall be forwarded to TD Can-ada Trust, in respect of any accounts in the father’s name; the bank shallimmediately freeze any accounts in the father’s name and, should thefather not pay the mother $45,773.24 within 30 days of this judgment,the bank shall pay that sum to the mother out of any of his accounts. Anytax liability that may result shall be paid by the father, and the motherheld harmless in that regard.

84 The mother is entitled to post-judgment interest and to her costs. Asshe is self-represented, to assist the parties in what amounts may be re-coverable in costs, I have enclosed the recent decision of MustangInvestigations Inc. v. Ironside, 2010 ONSC 3444 (Ont. Div. Ct.), for gui-dance. The mother shall submit her request, in writing and copied to thefather’s counsel, by July 8th. The father shall respond by July 18th. If areply is required, the mother shall do so by July 28th.

85 A copy of this judgment shall be provided to FRO.86 The existing non-dissipation order made against the father remains in

force until all monies owing pursuant to this judgement, including inter-est and costs, have been paid in full. After full payment of this judgment,plus interest and costs, the father may, on notice to the mother, apply tothe court to have the freeze on his accounts and the non-depletion orderlifted.

87 The approval of the father as to form and content is dispensed with.

Application granted in part.


[Indexed as: Windsor-Essex Childrens Aid Society v. D.(S.M.)]

Windsor-Essex Children’s Aid Society (Applicant) and S.M.D.,S.G. and L.G. (Respondents)

Ontario Court of Justice

Docket: Windsor FO-09-00000196

2011 ONCJ 311

Sharman S. Bondy J.

Heard: June 1, 2011


Family law –––– Children in need of protection — Practice and procedurein custody hearings — Evidence at hearing — Documentary evidence ––––Children’s Aid Society of Essex County brought motion in child protection pro-ceeding seeking by way of summary judgment order that subject child be madeward of Crown with no access — Motion dismissed — Court was not at all sat-isfied with quality or sufficiency of evidence — In addition, there were com-plete gaps in evidence — There was no statutory plan of care pursuant to s. 56of Child and Family Services Act that had been filed on motion’s return and noevidence at all before court addressing mandatory inquiries that court must makepursuant to ss. 57(2), (3) and (4) of Act — Moreover, there was no relevant evi-dence relating to issue of child’s access or openness orders pursuant to s. 59 ofAct.

Cases considered by Sharman S. Bondy J.:

B. (F.) v. G. (S.) (2001), 2001 CarswellOnt 1413, 199 D.L.R. (4th) 554, 16R.F.L. (5th) 237, [2001] O.T.C. 293, [2001] O.J. No. 1586 (Ont. S.C.J.) —referred to

Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.M.) (1995), 9O.F.L.R. 165, 1995 CarswellOnt 4393, [1995] O.J. No. 3971 (Ont. Prov.Div.) — considered

Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.M.) (1996),1996 CarswellOnt 3160, 139 D.L.R. (4th) 534, (sub nom. CatholicChildren’s Aid Society of Metropolitan Toronto v. L.O.) 12 O.T.C. 161,[1996] O.J. No. 3018 (Ont. Gen. Div.) — referred to

Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.M.) (1997), 30R.F.L. (4th) 16, (sub nom. Catholic Children’s Aid Society of MetropolitanToronto v. L.O.) 102 O.A.C. 232, 149 D.L.R. (4th) 464, 1997 CarswellOnt2742, [1997] O.J. No. 3041 (Ont. C.A.) — referred to

Windsor-Essex CAS v. D. (S.M.) 383

Catholic Children’s Aid Society of Toronto v. S. (S.) (2008), 2008 ONCJ 274,2008 CarswellOnt 3527, 55 R.F.L. (6th) 460, [2008] O.J. No. 2348 (Ont.C.J.) — considered

Children’s Aid Society of Algoma v. W. (E.) (2001), 2001 CarswellOnt 2346,[2001] O.J. No. 2746 (Ont. C.J.) — considered

Children’s Aid Society of Halton (Region) v. A. (K.L.) (2006), 2006 CarswellOnt5997, 216 O.A.C. 148, 32 R.F.L. (6th) 7, [2006] O.J. No. 3958 (Ont.C.A.) — referred to

Children’s Aid Society of Hamilton v. N. (M.) (2007), 2007 CarswellOnt 2453,[2007] O.J. No. 1526 (Ont. S.C.J.) — considered

Children’s Aid Society of Hamilton v. W. (M.) (2003), 2003 CarswellOnt 200, 63O.R. (3d) 512, [2003] O.T.C. 51, [2003] O.J. No. 220 (Ont. S.C.J.) — re-ferred to

Children’s Aid Society of Hamilton-Wentworth v. S. (S.) (1999), 1999 Carswell-Ont 235, [1999] O.J. No. 264 (Ont. Gen. Div.) — referred to

Children’s Aid Society of Huron-Perth v. H. (C.) (2007), 2007 CarswellOnt9293, 2007 ONCJ 744 (Ont. C.J.) — considered

Children’s Aid Society of London & Middlesex v. B. (B.) (2000), 2000 Carswell-Ont 205, 4 R.F.L. (5th) 183, [2000] O.T.C. 105, [2000] O.J. No. 235 (Ont.S.C.J.) — considered

Children’s Aid Society of London & Middlesex v. H. (R.) (1999), 1999 Carswell-Ont 4380, [1999] O.J. No. 5037 (Ont. S.C.J.) — considered

Children’s Aid Society of Nipissing (District) v. M. (M.) (2000), 2000 Carswell-Ont 2372, [2000] O.J. No. 2541 (Ont. S.C.J.) — considered

Children’s Aid Society of Toronto v. L. (L.) (2010), 83 R.F.L. (6th) 431, 2010ONCJ 48, 2010 CarswellOnt 920, [2010] O.J. No. 686 (Ont. C.J.) —considered

Children’s Aid Society of Toronto v. M. (A.) (2002), 26 R.F.L. (5th) 265, 2002CarswellOnt 1051, [2002] O.J. No. 1432 (Ont. C.J.) — considered

Children’s Aid Society of Waterloo (Regional Municipality) v. S. (R.) (2000),2000 CarswellOnt 4866, [2000] O.J. No. 4880 (Ont. C.J.) — referred to

Evans v. Evans (1998), 1998 CarswellOnt 4739, 83 O.T.C. 154, [1998] O.J. No.5098 (Ont. Gen. Div.) — considered

Evans v. Evans (2000), 2000 CarswellOnt 3161, [2000] O.J. No. 3382 (Ont.C.A.) — considered

Hameed v. Hameed (2006), 2006 ONCJ 274, 2006 CarswellOnt 4653, [2006]O.J. No. 3109 (Ont. C.J.) — considered

Jewish Family & Child Service v. A. (R.) (2001), 2001 CarswellOnt 73, [2001]O.J. No. 47 (Ont. S.C.J.) — referred to

LiSanti v. LiSanti (1990), 1990 CarswellOnt 219, 24 R.F.L. (3d) 174, [1990]O.J. No. 3092 (Ont. Fam. Ct.) — considered

Losee v. Geordiadis (1998), 1998 CarswellOnt 623, 36 R.F.L. (4th) 238, [1998]O.J. No. 301 (Ont. Prov. Div.) — referred to


Luckov v. Taylor (2008), 2008 ONCJ 795, 2008 CarswellOnt 9483, [2008] O.J.No. 5911 (Ont. C.J.) — considered

McGrath, Re (1893), [1893] 1 Ch. 143, 62 L.J. Ch. 208, 9 T.L.R. 65, 41 W.R.97, 67 L.T. 636, 2 R. 137 (Eng. C.A.) — referred to

Official Solicitor v. K. (1963), [1963] 3 All E.R. 191, [1963] 3 W.L.R. 408, 107Sol. Jo. 616, (sub nom. K. (Infants), Re) [1965] A.C. 201 (U.K. H.L.) —referred to

R. v. Khan (1990), 113 N.R. 53, 79 C.R. (3d) 1, 41 O.A.C. 353, [1990] 2 S.C.R.531, 59 C.C.C. (3d) 92, 1990 CarswellOnt 108, 1990 CarswellOnt 1001,EYB 1990-67557, [1990] S.C.J. No. 81 (S.C.C.) — followed

Smith v. Morrison (2009), 2009 ONCJ 462, 2009 CarswellOnt 4996, [2009] O.J.No. 4015 (Ont. C.J.) — referred to

Transamerica Occidental Life Insurance Co. v. Toronto Dominion Bank (1999),1999 CarswellOnt 911, 28 E.T.R. (2d) 113, 173 D.L.R. (4th) 468, 118O.A.C. 149, 44 O.R. (3d) 97, [1999] O.J. No. 1195 (Ont. C.A.) —considered

Winnipeg Child & Family Services v. L. (L.) (1994), [1994] 6 W.W.R. 457, 95Man. R. (2d) 16, 70 W.A.C. 16, 1994 CarswellMan 132, 4 R.F.L. (4th) 10,[1994] M.J. No. 251 (Man. C.A.) — considered


Child and Family Services Act, R.S.O. 1990, c. C.11Pt. III — referred tos. 1(1) — considereds. 37(2)(c) — considereds. 37(2)(d) — considereds. 45(7) — referred tos. 45(7)(c) — referred tos. 45(8) — referred tos. 45(9) — referred tos. 50(1) — considereds. 51 — referred tos. 51(7) — referred tos. 54(6) — considereds. 56 — considereds. 57(1) ¶ 3 — considereds. 57(2) — considereds. 57(3) — considereds. 57(4) — considereds. 59 — considereds. 59(2) — considereds. 59(2.1) [en. 2006, c. 5, s. 17(2)] — considereds. 59(4) — considereds. 85(3) — referred to

Windsor-Essex CAS v. D. (S.M.) 385

Criminal Code, R.S.C. 1985, c. C-46Generally — referred tos. 161 — referred tos. 486.4 [en. 2005, c. 32, s. 15] — referred tos. 486.4(4) [en. 2005, c. 32, s. 15] — considered

Sex Offender Information Registration Act, S.C. 2004, c. 10Generally — referred to

Rules considered:

Family Court Rules, R.R.O. 1990, Reg. 202R. 19(2) — considered

Family Law Rules, O. Reg. 114/99Generally — referred toR. 2(2) — consideredR. 14(17) — consideredR. 14(18) — consideredR. 14(19) — consideredR. 16 — consideredR. 16(1) — consideredR. 16(2) — consideredR. 16(4) — consideredR. 16(4.1) [en. O. Reg. 91/03] — consideredR. 16(5) — consideredR. 16(6) — consideredR. 23(21)(c) — considered

Rules of Civil Procedure, R.R.O. 1990, Reg. 194R. 20.02 — considered

MOTION by Children’s Aid Society of Essex County in child protection pro-ceeding seeking by way of summary judgment order that subject child be madeward of Crown with no access.

Frank W. Philcox, for Applicant SocietyNo one for Respondent mother, S.M.D.No one for Respondent maternal grandfather, S.G.No one for Respondent maternal grandmother, L.G.Malcolm S. Kirsch, for child


Sharman S. Bondy J.:

1: Introduction1 On the return of a summary judgment motion before me, I expressed

that there were a number of issues that prohibited my making a finalorder in this matter.

2 My endorsement at that time reads as follows: The summary judgment motion before me does not contain a recordthat I can reasonably act upon.

1. [Mr. S.G. and Mrs. L.G.] have not been served with the mo-tion, as I have previously directed;

2. The affidavit before me does not address the evidence I re-quire to address s. 57(2)(3) and (4), s. 56 and s. 37(3) of theChild and Family Services Act;

3. The affidavit contains reference to third-party observations,reports, findings and opinions where the basis for admissionof these materials in this fashion (i.e., largely hearsay) is notestablished or proposed;

4. Evidence in support of an application for Crown wardshipwithout access should be of the highest standard and qualityso as to allow the court to address the determination of thechild’s best interests and allow for a clear and thorough re-cord to support the relief sought. Moreover, procedural fair-ness demands that the record reveal a sound basis for the re-lief sought;

5. Adjourn motion for better evidence and for confirmed serviceon the [G.s] to July 25, 2011, courtroom #3 at 10 a.m. (1hour)

3 As the endorsement indicates, I adjourned the motion requesting thatcounsel prepare a “better” affidavit. Counsel for the society raised objec-tions over my ruling asserting that the evidence before me was sufficientwithout any real basis for his submissions. He suggested that, as the re-lief sought was unopposed, I should just make the order sought. I de-clined that request.

4 The issue that arises in this context is that the test of genuine issue inthe current rules of court have converted summary judgment from whatwas described as an extraordinary measure to a procedural remedy. Buthaving made that statement, many cases still prescribe that the summaryjudgment is to be invoked with some considerable caution. The problemthat arises is that the affidavits filed by the parties sometimes typify how

Windsor-Essex CAS v. D. (S.M.) Sharman S. Bondy J. 387

easy it is to confuse the issue of what a litigant believes is in the bestinterests of the child with a lack of attention to detail on the rules ofevidence.

5 For these reasons and others, I hereby deliver these additional reasonsrelating to the sufficiency and quality of evidence on the summary judg-ment motion. I do so not from the perspective of lecturing the parties (ortheir counsel) but in the hope that it will assist them in the preparation ofsummary judgment motions generally and the evidence in support ofthese requests.

2: Background6 The Children’s Aid Society of Essex County has brought a motion in

this child protection proceeding seeking by way of summary judgment anorder that the subject child be made a ward of the Crown with no accesspursuant to paragraph 57(1)¶3, of the Child and Family Services Act,R.S.O. 1990, c. C-11, as amended (hereinafter described as “the Act”).

7 The child who is the subject of these proceedings is C.F.R.D., born on30 November 2006, hereinafter described as “C.”. His mother is Ms.S.M.D. She does not appear before this court and was subject to an orderremoving her counsel of record on 14 July 2010 and, on consent, with-drew her answer on 20 October 2010. On that same date, I made a find-ing that there was no other parent in these proceedings. The society origi-nally sought an order of six (6)-month wardship for C. On 29 April 2009,the society amended its application to seek an order of Crown wardshipwithout access. Its plan involves placing C. for adoption.

8 The society originally joined C.’s maternal grandparents as party re-spondents in this application. The record before me is not clear why thiswas done but, at the time that these proceedings were commenced, C.and his mother lived in a downstairs apartment at their residence. Per-haps the evidence suggested to the society that they shared custody of C.with his mother. Mr. S.G. and Mrs. L.G. served and filed an answer tothe original application. Curiously, they filed no answer to the society’samended application. They have appeared before this court on multipleoccasions. At one point, they sought an order of access and temporaryplacement of the child in their care. The record reveals that they have notappeared since 20 July 2010. Their original answer proposes that C. re-side with them on a full-time basis.


9 The circumstances giving rise to a finding of protection in this matterare nothing short of horrific. On 23 March 2011, I delivered an oral rul-ing for the following:

a. I made statutory findings in connection in C.’s name, dateof birth, religious affiliation, Indian or native status and thelocation from which he came into care;

b. I found that C. was in need of protection pursuant to s.37(2)(c) and (d) of the Act.

10 As for the evidence before me supporting the finding of protection, C.was subjected to sexual abuse by his mother. She taped these incidentsand others involving her, C. and the family dog by means of phone andover the internet. Part of the evidence before me consisted of a transcriptof the criminal proceedings before Justice Guy F. DeMarco where, afterguilty pleas, she was convicted of making child pornography by meansof a computer web cam and cell phone, possession of pornography forthe purposes of publication and touching a young person (i.e., C.) for asexual purpose all pursuant to provisions in the Criminal Code, R.S.C.1985, c. C-46, as amended. She was sentenced to custody for a period oftwo years less one day, terms of probation, a lifetime prohibition undersection 161 of the Criminal Code, registration under the Sex OffenderInformation Registration Act, S.C. 2004, c. 10 and a firearms prohibitionorder.

11 I had previously provided direction that this summary judgment mo-tion be served on Mr. and Mrs. G. as the mother and grandparents wereall represented by the same lawyer at one time in these proceedings.Counsel advised at one point they would be withdrawing their answerbut they did not do so and did not file an answer to the amended applica-tion. It was around this same time, namely 14 July 2010 that Mr. Paul M.Mingay was removed as counsel for all the parties by order of Justice A.Ross Webster.

12 I am reasonably confident that Ms. S.M.D. was aware of the order forprotection and Crown wardship being sought, as I asked that she be pro-duced before the court to clarify the parentage issue, she advised that shewas withdrawing her answer and she indicated that, although she was notconsenting to the findings, she was not opposed to the finding of protec-tion sought or the Crown wardship order either.

13 As for the grandparents, I was never really satisfied that they wereentirely aware of the change in placement that was sought by the societyor what was expected of them. One thing was apparent; they had consist-


ently failed to attend at court and may not have been aware of the returndates. For these reasons then and in answer to the statutory obligationsfound in subsection 57(3) and (4) of the Act and pursuant to subrule 2(2)of the Family Law Rules, O. Reg. 114/99, as amended, I directed thatthey be served. On the return of this motion, I was not satisfied that infact they had been personally served, and I made the order set out abovefor the reasons I have indicated.

3: Issue14 What is the quality and sufficiency of evidence required for the sum-

mary judgment motion?

4: The Law15 In describing the quality and sufficiency of evidence on a summary

judgment motion, one must always be mindful of the underlying stan-dards and principles of such a motion. The following unusual openingline in the brief endorsement of Appeal Justice George D. Finlayson inEvans v. Evans (2000), 99 A.C.W.S. (3d) 623, [2000] O.J. No. 3382,2000 CarswellOnt 3161 (Ont. C.A.) is a good start where he began bysaying: “It is unusual to see a summary judgment in a family law case,and should remain so.”

16 The summary judgment motion is now an entrenched procedural rem-edy recognized as such under rule 16 of the Family Law Rules. Someportions of the rule and pertinent subrules read as follows:

16. When available. — (1) After the respondent has served an an-swer or after the time for serving an answer has expired, a party maymake a motion for summary judgment for a final order without a trialon all or part of any claim made or any defence presented in the case.

(2) Available in any case except divorce. — A motion for summaryjudgment under subrule (1) may be made in any case (including achild protection case) that does not include a divorce claim.

17 The rule clearly applies to child protection proceedings and is prop-erly the subject of the Family Rules Committee. (See Children’s AidSociety of Hamilton v. W. (M.), 2003 CanLII 2309, (2003), 63 O.R. (3d)512, [2003] O.J. No. 220, [2003] O.T.C. 51, 2003 CarswellOnt 200 (Ont.S.C.J.), per Justice Eugene B. Fedak). Before the advent of this new rule,summary judgment motions were not unheard of in the then Ontario Pro-vincial Court (now Ontario Court of Justice), even in child protectionproceedings. Provincial Judge Joseph C.M. James (as he then was) in


Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.M.),1995 CanLII 6216, (1995), 59 A.C.W.S. (3d) 916, 7 W.D.C.P. (2d) 49,[1996] W.D.F.L. 650, 9 O.F.L.R. 165, [1995] O.J. No. 3971, 1995 Cars-wellOnt 4393 (Ont. Prov. Div.), found that “only in the clearest and mostexceptional of circumstances will the remedy of summary judgment beappropriate”. His decision was ultimately upheld on appeal by JusticeSandra Chapnik at 1996 CanLII 7271, (1996), 139 D.L.R. (4th) 534,[1996] O.J. No. 3018, 12 O.T.C. 161, 1996 CarswellOnt 3160 (Ont. Gen.Div.) and thereafter affirmed in 1997 by the Ontario Court of Appeal at1997 CanLII 4445, (1997), 102 O.A.C. 232, 149 D.L.R. (4th) 464, 30R.F.L. (4th) 16 (Ont. C.A.), [1997] O.J. No. 3041, 1997 CarswellOnt2742 (Ont. C.A.). See also Losee v. Geordiadis, 1998 CanLII 17995,(1998), 36 R.F.L. (4th) 238, [1998] O.J. No. 301, 1998 CarswellOnt 623(Ont. Prov. Div.), per Provincial Judge James P. Nevins; and Children’sAid Society of Hamilton-Wentworth v. S. (S.), 1999 CanLII 14028,(1999), 85 A.C.W.S. (3d) 844, [1999] O.J. No. 264, 1999 CarswellOnt235 (Ont. Gen. Div.), per Justice Henry Vogelsang, at paragraph [20].

18 One judge has opined that summary judgment is no longer limited toor granted only in the clearest of cases and its explicit availability in rule16 of the Family Law Rules broadens the use of this remedy so that it isno longer considered an extraordinary remedy. See Smith v. Morrison,2009 ONCJ 462, 179 A.C.W.S. (3d) 1132, [2009] O.J. No. 4015, 2009CarswellOnt 4996 (Ont. C.J.). See also paragraph [20] of Jewish Family& Child Service v. A. (R.) (2001), 102 A.C.W.S. (3d) 554, 20 L.W.C.D.251, [2001] O.J. No. 47, 2001 CarswellOnt 73 (Ont. S.C.J.), per JusticeG. Dennis Lane. However the introduction of rule 16 of the Family LawRules did not affect the traditional level of caution to be exercised forinvocation of summary judgment. It is a jurisdiction to be used sparinglybecause that is consistent with the principles of justice and the best inter-ests of children. See Children’s Aid Society of Halton (Region) v. A.(K.L.), 2006 CanLII 33538, (2006), 216 O.A.C. 148, 32 R.F.L. (6th) 7,[2006] O.J. No. 3958, 2006 CarswellOnt 5997 (Ont. C.A.). In cases ofCrown wardship without access, summary judgment is to be invokedwith some caution even though the test of genuine issue for trial has con-verted the summary judgment from an extraordinary measure to a proce-dural remedy. See Children’s Aid Society of Hamilton v. W. (M.), supra.See also paragraph [23] of B. (F.) v. G. (S.), 2001 CanLII 28231, (2001),199 D.L.R. (4th) 554, 16 R.F.L. (5th) 237, [2001] O.J. No. 1586, [2001]O.T.C. 293, 2001 CarswellOnt 1413 (Ont. S.C.J.), per Justice Susan G.Himel.


19 Justice Paddy A. Hardman is often referred to as a result of her sug-gestion in Children’s Aid Society of Waterloo (Regional Municipality) v.S. (R.), 2000 CanLII 22902, (2000), 101 A.C.W.S. (3d) 1133, [2000] O.J.No. 4880, 2000 CarswellOnt 4866 (Ont. C.J.), at paragraph [25], as fol-lows:

[25] ... However, while the test in the rule is the same regardless ofthe nature of the application sought, it seems likely that a court willproceed cautiously in a summary determination involving the veryfinal orders of Crown wardship.

20 Accordingly, there are legal principles that have evolved that are ap-plicable to motions for summary judgment. There are also legal princi-ples that apply to the evidence to be weighed so as to answer the ultimatequestion whether or not there is a genuine issue requiring a trial. InChildren’s Aid Society of Algoma v. W. (E.), 2001 CanLII 37515, [2001]O.J. No. 2746, 2001 CarswellOnt 2346 (Ont. C.J.), Justice John Kukurinopined at paragraph [16] that, “potential factors in deciding whetherthere is a genuine issue for trial could include the nature of the evidenceon the motion, any mandatory time frames involved, the intrusiveness ofthe order sought, the statutory criteria involved, if any, and particularlyhow material are the facts in issue to the case”. Perhaps this is why heput it best when he said that “it may simply be conservatism that seeks torestrict the summary judgment to the clearest of cases. But adoption of anew rule hardly seems a good reason to start lowering the floodgates andadopting less onerous standards”.

21 Of importance on a motion for summary judgment are the principlesand standards of evidence required from the moving or responding party.To address the question of those standards, I would first refer to the rele-vant provisions of the Family Law Rules pertaining to affidavit evidencein motions generally and specifically, the summary judgment motion.Subrules 14(17), 14(18), 14(19) and 16(4), 16(4.1) and 16(5) of the Fam-ily Law Rules apply. They read as follows:

14. — (17) Evidence on a motion. — Evidence on a motion may begiven by any one or more of the following methods:

1. An affidavit or other admissible evidence in writing.

2. A transcript of the questions and answers on a ques-tioning under rule 20.

3. With the court’s permission, oral evidence.


(18) Affidavit based on personal knowledge. — An affidavit for useon a motion shall, as much as possible, contain only informationwithin the personal knowledge of the person signing the affidavit.

(19) Affidavit based on other information. — The affidavit may alsocontain information that the person learned from someone else, butonly if,

(a) the source of the information is identified by nameand the affidavit states that the person signing it be-lieves the information is true; and

(b) in addition, if the motion is a contempt motion underrule 31, the information is not likely to be disputed.

. . .

16. — (4) Evidence required. — The party making the motion shallserve an affidavit or other evidence that sets out specific facts show-ing that there is no genuine issue requiring a trial.

(4.1) Evidence of responding party. — In response to the affidavit orother evidence served by the party making the motion, the party re-sponding to the motion may not rest on mere allegations or denialsbut shall set out, in an affidavit or other evidence, specific factsshowing that there is a genuine issue for trial.

(5) Evidence not from personal knowledge. — If a party’s evidenceis not from a person who has personal knowledge of the facts in dis-pute, the court may draw conclusions unfavourable to the party.

(6) No issue for trial. — If there is no genuine issue requiring a trialof a claim or defence, the court shall make a final order accordingly.

22 These rules then provide that affidavit or other evidence must beserved. Information within the personal knowledge of the person signingthe affidavit should be used. On its face, this would suggest that hearsayevidence is inadmissible unless, according to subrule 14(19), the sourceof the information is identified by name and the affidavit states that theperson signing it believes the information is true.

23 The summary judgment at rule 16 expressly provides that an affidavitor other “admissible” evidence must served, setting out specific factsshowing that there is no genuine issue for trial. Regarding the content ofthe affidavit material, the party responding to the motion may not rest onmere allegations or denials, but shall instead set out specific facts show-ing there is no genuine issue for trial. Further, and perhaps most notably,subrule 16(5) provides that, if a party’s evidence is not derived from per-sonal knowledge of the facts in dispute, the court may draw conclusionsunfavourable to the party.


24 The issue clearly then becomes how exactly have the courts inter-preted this section and subrules and what type of evidence have they ad-mitted on these motions?

25 Case law provides some direction in analyzing the court’s expecta-tions around the principles and standards of evidence used in affidavitsfiled on motions generally. In LiSanti v. LiSanti, 1990 CanLII 4229,(1990), 24 R.F.L. (3d) 174, [1990] O.J. No. 3092, 1990 CarswellOnt 219(Ont. Fam. Ct.), Provincial Judge Henry Vogelsang lamented the routinedrafting of affidavits that merely attached third-party reports, observa-tions and opinions (i.e., classic hearsay) by exhibit, leaving the author ofthe report safe from cross-examination and scrutiny. Justice David R. As-ton in Evans v. Evans, 1998 CanLII 18228, [1998] O.J. No. 5098, 83O.T.C. 154, 1998 CarswellOnt 4739 (Ont. Gen. Div.), commented on thegrowing war of words found in the family law context in support of mo-tions and struck out various paragraphs of an affidavit filed that was, ashe put it, “chock full of opinions, conclusions, and assertions about thefeelings, motives or state of minds of other, including a nine month oldchild, failed to distinguish between evidence and argument, containedinadmissible hearsay and contained scandalous, frivolous or vexatiousmaterial.”

26 For Justice Aston, the procedural and substantive errors in the affida-vit before him led him to conclude that “what we permit, we promote”and, in an effort to stay the flow of what he considered inadmissible andinappropriate material, he struck out the offending paragraphs pursuantto the rules.

27 Likewise, in Hameed v. Hameed, 2006 ONCJ 274, [2006] O.J. No.3109, 2006 CarswellOnt 4653 (Ont. C.J.), Justice Stanley B. Sherr strug-gled with the problem of troublesome affidavits when he struck a para-graph that referred to a letter attached to a father’s affidavit written byhis employer and, in Luckov v. Taylor, 2008 ONCJ 795, 189 A.C.W.S.(3d) 1065, [2008] O.J. No. 5911, 2008 CarswellOnt 9483 (Ont. C.J.),Justice Bruce E. Pugsley was not assisted by:

[11] ... unsworn letters incapable of cross-examination attached to af-fidavits, by statements of what an unnamed third party believes issuitable behaviour for a married woman, that the applicant “gave up”a child in the past, the understanding of witnesses as to what a partythought but did not express, the comments of unknown persons of noknown qualifications at the WSIB (Workplace Safety and InsuranceBoard) as to the respondent’s health, events in the remote past re-ferred to by both sides, and similar unhelpful material.


28 Similar problems relating to defective affidavits have arisen in thetemporary care and custody motion pursuant to section 51 of the Act,where a reduced standard of credible and trustworthy evidence is al-lowed. See subsection 51(7) of the Act. In Children’s Aid Society ofToronto v. M. (A.), 2002 CanLII 45665, (2002), 26 R.F.L. (5th) 265,[2002] O.J. No. 1432, 2002 CarswellOnt 1051 (Ont. C.J.), JusticeHeather Katarynych laboured with the society’s evidentiary case wherethe affidavit of the society’s intake and case aide workers had appendedto them what she described as a sheaf of case note recordings from alocal treatment facility and handwritten notes in connection with super-vising parent-and-child access. At paragraph [16] of her ruling, she saidthat “what appears to be credible and trustworthy information at an earlystage in the investigation may be found, on closer scrutiny, to be specula-tion, innuendo, conjecture or simply meanspirited gossip”. For JusticeKatarynych, assertions were not validated by simply swallowing themwhole. She opined that, for assertions to support a credible and trustwor-thy test of admittance, they had to have a sound factual basis outlined inthe affidavit to allow for their inclusion.

29 In yet another example of affidavit “overkill”, in Catholic Children’sAid Society of Toronto v. S. (S.), 2008 ONCJ 274, [2008] W.D.F.L. 3578,[2008] O.J. No. 2348, 2008 CarswellOnt 3527 (Ont. C.J.), Justice RobertSpence did not allow the admission of an affidavit 145 pages in length,consisting of 337 paragraphs and 22 exhibits. In this proceeding, a com-mon practice in the Toronto child protection courts was to accept affida-vit evidence from society employees to replace the tendering of such evi-dence in chief at the hearing. He found that the affidavit proposed to befiled by the society reflected problems with redundancy, poor organiza-tion and was replete with irrelevant facts that could never be adduced attrial were the evidence to be given orally. Justice Spence found that theaffidavit appeared to be nothing more than the worker’s transcription ofher notes, from her start of the case to the conclusion. He opined furtherthat the affidavit lacked focus and tight thematic organization and did notcomply with clause 23(21)(c) of the Family Law Rules.

30 Summing up the foregoing decisions, it appears that materiality, rele-vance, compliance with the terms of the Family Law Rules relating to theadmission and drafting of affidavit evidence and focus on the issues andthe legal test before the court on a motion all play an important part inthe cases reviewed above.


31 Moving from these identified problems, I suggest the next thorny is-sue that often presents itself specifically in the summary judgment con-text is the question of whether to admit hearsay and if so, how much andwhen. Such is often the case in the child protection sphere where multi-ple caregivers and experts may be involved in the determination of pro-tection issues or alternatively in assessing a long-term plan to secure achild’s best interests. In these circumstances, the temptation is to simplyattach a report or record to the affidavit of the lead social worker or with-out attachment simply refer to the third-party communication or record.The answer to this issue seems to depend on the result of different judi-cial approaches to the admission of this evidence.

32 One judicial approach seems to allow for some limited admission ofhearsay given the “permission” that may be allowed under subrule 16(5)(and might I add, subrule 14(19)).

33 It is well established that traditional rules of evidence prescribe thathearsay evidence is inherently inadmissible and as a result is generallyinadmissible. Justice Robert S.G. MacKenzie in Children’s Aid Societyof Huron-Perth v. H. (C.), 2007 ONCJ 744, 2007 CarswellOnt 9293(Ont. C.J.), described (at paragraph [19]) the four hearsay dangers in achild protection proceeding where the society sought a motion for sum-mary judgment supported by what he described as a mass of affidavitmaterial as:

• First, you have no idea about the perception or the ability toperceive of the witness generally or in a specific situation.

• Second, the ability of the witness to remember and thestrengths and frailties of that memory cannot be assessed inany proper way.

• Third, the ability of the witness to communicate. Well this isthe biggest error that there could possibly be in affidavit ma-terial. We all know that affidavits are, even in the most cau-tious circumstances, sufficient to sway a trier of fact simplyby the ability of the drafter and the drafter’s use of the En-glish language. It is as simple as that. You have no idea aboutthe witness’s ability to communicate. You have the lawyer’sability to communicate.

• And last, sincerity, that is the demeanour, the trustworthiness,the reasoning for the court to rely on any of that evidence inmaking a decision that affects people’s lives.

34 For Justice MacKenzie, however, the bottom line relating to the ad-mission of hearsay on a motion for summary judgment was the principle


of necessity and reliability, as outlined in R. v. Khan, [1990] 2 S.C.R.531, 113 N.R. 53, 41 O.A.C. 353, 59 C.C.C. (3d) 92, 79 C.R. (3d) 1(S.C.C.), 1990 CanLII 77, [1990] S.C.J. No. 81, 1990 CarswellOnt 108(S.C.C.). He then devised the following test to allow for the admission ofhearsay in the affidavit material before him (at paragraph [27]):

• First, the deponent should identify the source of the informa-tion and identify that the source must be the original source ofthe information, or that that person is the person with the per-sonal knowledge or observation of the fact alleged;

• Second, the deponent must explain the reason why the origi-nal source of the information has not sworn his or her ownaffidavit and therefore why it would be necessary for thecourt to accept hearsay evidence on those facts as opposed tothe direct evidence of those facts;

• Third, the deponent must explain the circumstances of howthe hearsay evidence was obtained, whey the source wouldhave knowledge of the information and the full details of theinformation and the source so that the court can ascertain thesoundness of the information and the source and assess somekind of level of reliability to that evidence;

• Last, the deponent must explain not only that they believe theevidence from the hearsay source, but they have got to givefor every piece of hearsay reasons why they and the courtshould believe and only on that untested evidence.

35 In assessing Justice Mackenzie’s ruling, one should not overlook thathe held the view that subrules 14(19) and 16(5) expressly allowed thecourt the discretion to accept or reject hearsay evidence in affidavit mate-rial, which he then proceeded to apply.

36 Justice Barry Tobin approved of what I will describe as the “Mac-Kenzie” approach in a recent unreported decision in Windsor-Essex Chil-dren’s Aid Society v Benuik (Windsor File No. FO-10-00000004). In thatcase, Justice Tobin allowed the society to admit the report of a specialiston a motion for summary judgment for dismissal brought by the motherwhere the society had merely attached the specialist’s letter as an exhibitto the affidavit of the society family services worker. He admitted thereport and applied weight to its findings and opinions due to what hedescribed as its circumstantial guarantees of reliability and necessity andthe lack of prejudice to the moving party. In the instant case, JusticeTobin found that the specialist’s report had been received by a doctorwho had no interest in the outcome of the case, as a result it had an air of


reliability about it, the report been previously admitted in the context of atemporary care motion, the admission of the document would give effectto subsection 1(1) of the Act and the moving party had previously ac-knowledged the document’s existence and had had the opportunity ofmoving to conduct oral questioning on its contents.

37 Justice Tobin had this to say on the question of prejudice, however: I wish to observe that the society could have easily avoided this evi-dentiary objection made by Ms. B. by filing the report appended toan affidavit sworn by Dr. Villella. If the consequences of admittingthe reports would have been more dire for Ms. B., such as the re-moval of the child from her care, I might have exercised my discre-tion otherwise.

38 For Justice Tobin, then the issue of prejudice to a party was an addi-tional factor for consideration in addition to reliability and necessitywhen regarding the admission of hearsay material in the summary judg-ment motion.

39 But Justice Kukurin, in Children’s Aid Society of Algoma v. W. (E.),supra, examined the impact of subrule 16(5) within the context of a sum-mary judgment motion where the affidavit by the lead social worker al-leged as a fact what a third party had told her, where the purpose of theallegations was not to demonstrate the comments were made and wherethe evidence was sought to be admitted as to the truth of the commentsalleged (i.e., classic hearsay). The learned judge had this to say about theapplication of the subrule:

[32] What does the court do in circumstances like these? Subrule16(5) is permissive. No adverse inference need be drawn; no un-favourable conclusions need be reached. In this case, it would be dif-ficult for the court to decline to do so. The circumstances are classic.There is no explanation why there are no affidavits from the authorsof the comments involved. The fact that the paternal grandmotherswears an affidavit that Mr. P.W. did not reside at her home after 1November 2000 is very important to this problem. It puts the mattersquarely before the court so that court cannot avoid dealing with theproblem. If the court declines to draw unfavourable conclusions, itshould at least give some reasons and explain it this way. Frankly, Ihave no reason that is reasonable. To say that case law has set a pre-cedent that enjoins the court from making findings of credibility isnot sufficient when a specific rule says otherwise. Nor is disguisingwhat the court does by using other words. “Drawing unfavourableconclusions” in the context of subrule 16(5) of the Family Law Rules,which deals specifically with a party’s evidence, and which follows


subrule 16(4) which also deals with evidence, means, so far as I amconcerned, making inferences or determinations of credibility and in-extricably tied to this is the mental exercise of assigning weight tosuch evidence. Accordingly, I consider such evidence by the societyof relatively poor quality in the circumstances.

40 Ultimately Justice Kukurin “weighed” the evidence before him (hedescribed some of it as admissible and inadmissible hearsay) and foundthat subrule 16(5) of the Family Law Rules and rule 20.02 of the Rules ofCivil Procedure, R.R.O. 1990, Reg. 194, as amended, made it abundantlyclear that the quality of the evidence before the court [was] very defi-nitely a basis for the weight to be assigned to such evidence. He said thefollowing at paragraph [28], “In fact, if the words in subrule 16(5) ‘thecourt may draw conclusions unfavourable to the party’ do not expresslypermit the court to make adverse findings of credibility, I am at a loss tounderstand what they do mean”. However, he was troubled that the casesdealing with summary judgment unwaveringly repeat the same injunc-tion that was summarized in Transamerica Occidental Life InsuranceCo. v. Toronto Dominion Bank (1999), 44 O.R. (3d) 97, 118 O.A.C. 149,173 D.L.R. (4th) 468, 28 E.T.R. (2d) 113, 1999 CanLII 3716, [1999] O.J.No. 1195, 1999 CarswellOnt 911 (Ont. C.A.), and set out by JusticeGeorge T. Valin in Children’s Aid Society of Nipissing (District) v. M.(M.), 2000 CanLII 22922, (2000), 98 A.C.W.S. (3d) 134, [2000] O.J. No.2541, 2000 CarswellOnt 2372 (Ont. S.C.J.), at paragraph [12]:

[12] A motions judge, on a rule 20 summary judgment motion,should not resolve issues of credibility, draw inferences from con-flicting evidence, or from evidence that is not in conflict when morethan one inference is reasonably available. Those functions are re-served for the trier of fact.

41 For Justice Kukurin then, it appears that he admitted the offendingmaterial despite the fact that it was inadmissible hearsay, proceeded toengage in a limited weighing of it, then on the whole, found it less wor-thy of weight. To repeat, his case enquiries seem to suggest that the ques-tion for him relating to the evidence was one of weight, not admissibility.

42 Continuing with this analysis, the case law reflects that there are dif-ferent strokes for different folks. For example, in Children’s Aid Societyof Hamilton v. N. (M.), 2007 CanLII 13503, (2007), 156 A.C.W.S. (3d)1043, [2007] O.J. No. 1526, 2007 CarswellOnt 2453 (Ont. S.C.J.), Jus-tice Donald J. Gordon was presented with an affidavit record from theapplicant society seeking a continued finding of protection as a result ofthe mother’s mental health issues and an order of Crown wardship with-


out access for the purpose of adoption. Expert findings on the motionconsisted of a parenting capacity report and annexed psychiatric “consul-tation notes”. He describes these documents as not being in the form ofadmissible evidence and incomplete (i.e., they contained no final find-ings or opinions relating to the mother’s mental health). The society’smotion relied heavily on the affidavit of the family service worker andincorporated by reference the prior affidavits of society workers filed inthe proceeding. Those affidavits were summarized by Justice Gordon aslacking sufficient detail relating to the child’s best interests such as cul-ture and language barriers, considerable reference was made to third-party sources without an explanation why direct evidence was not ob-tained, the society’s concerns and opinions were largely throughout andoverall he complained about a record that revealed incomplete and out-of-date medical findings. According to Justice Gordon, he expected onthe summary motion a full and complete evidentiary record, admissibleevidence and a presentation of all of the evidence as if there was a trial.Justice Gordon was not alone in this view. At paragraph [10] of his rea-sons in Children’s Aid Society of Huron-Perth v. H. (C.), supra, JusticeMacKenzie was likewise of the view that the evidence at a motion forsummary judgment should be of a level and quality that could withstandthe rigour of a trial.

43 On the issue of the information from other sources and the lack ofexplanation why affidavits could not be presented from those persons, hefelt this type of affidavit contravened subrule 16(5) and, as such, wasinadmissible as opposing parties and the court were entitled to the bestevidence from the original source. He had the following to say abouthearsay evidence:

[29] Hearsay evidence is to be avoided. The rules of evidence arerelaxed in applications for temporary care and custody as s. 51 of theAct permits evidence the court considers “credible and trustworthy incircumstances”. While Rule 16 (5) appears to be permissive as tohearsay evidence, there is the penalty attached of an adverseinference.

44 But it is what he had to say about the nature of the evidence on asummary judgment motion that is noteworthy. At paragraph [30] of hisjudgment he said that:

[30] Evidence on a motion for summary judgment must be restrictedto “admissible” evidence given the nature of the proceeding, namely,it is comparable to trail, and the relief claimed. The admissibility ofhearsay evidence must be supported by evidence of necessity and re-


liability, failing which it must be excluded. Simply put, if evidence isnot admissible at trial, it is not admissible on a motion for summaryjudgment.

45 This notion of what I would describe as insisting on “trial worthy”evidence is referred to by Justice Aston in Evans v. Evans, supra, at para-graph [25], even within the context of an affidavit in support of a motionwhich was governed by what was then subrule 19(2) of the former Fam-ily Court Rules, R.R.O. 1990, Reg. 202, (now subrule 14(15)):

[3] Evidence by affidavit must, generally speaking, meet the sametest as oral testimony. It must be factual. It must be relevant to anissue before the Court. If it is hearsay, it must fall within one of theexceptions to the “hearsay rule”. It must be within the personalknowledge of the deponent unless it complies with subrule 19(2) ...

[4] It is not appropriate for a witness to state as a fact some conclu-sion that must be drawn by the court itself. It is only appropriate forthe witness to swear to the facts from which the court may draw itconclusions.

[5] The opinions and conjecture of the deponent are not properly evi-dence before the court, particularly those that make assertions aboutthe motivations or thoughts or feelings of someone else.

46 One finds this same conundrum relating to the admission of hearsayevidence at trial or hearing throughout child protection cases. InChildren’s Aid Society of London & Middlesex v. H. (R.), 1999 CanLII14314, 93 A.C.W.S. (3d) 852, [1999] O.J. No. 5037, 1999 CarswellOnt4380 (Ont. S.C.J.), Justice Grant A. Campbell found that subsections50(1) [past parenting evidence], 51(7) [credible and trustworthy evidenceon the temporary care and custody motion] and 54(6) [the admission asevidence of assessment findings] of the Act did not act to limit the ad-mission of hearsay evidence in child protection cases. In his case, he wasasked to admit the out-of-court statements made by the children whowere the subject of protection proceedings to third parties. He opinedthat, in addition to the above-named statutory exceptions, the court had along established parens patriae jurisdiction that allowed for the admis-sion at trial of such evidence for the truth of children’s statements with-out meeting the dual tests of reliability and necessity in arriving at itsultimate determination. Justice Campbell found comfort in the ManitobaCourt of Appeal decision in Winnipeg Child & Family Services v. L. (L.)(1994), 95 Man. R. (2d) 16, [1994] 6 W.W.R. 457, 70 W.A.C. 16, 4R.F.L. (4th) 10, [1994] M.J. No. 251, 1994 CarswellMan 132 (Man.C.A.), and the English line of authorities in McGrath, Re, [1893] 1 Ch.


143, 62 L.J. Ch. 208, 67 L.T. 636, 9 T.L.R. 65, 41 W.R. 97, 2 R. 137(Eng. C.A.) and Official Solicitor v. K. (1963), [1965] A.C. 201, [1963] 3All E.R. 191, [1963] 3 W.L.R. 408 (U.K. H.L.), for this proposition. Hedescribed the jurisdiction to admit such evidence as a special “paternaljurisdiction” whereby the court could examine all child care proceedingsin a non-adversarial manner.

47 In Children’s Aid Society of London & Middlesex v. H. (R.), supra,Justice Campbell then admitted certain out-of-court statements by chil-dren for the truth of their contents, without a determination of necessityor reliability and without regard to subsections 50(1), 51(7) and 54(6) ofthe Act. Instead, he advocated an approach that would allow for its ad-mission with a discretion to decide what weight to give to the hearsay.

48 But Justice Aston in Children’s Aid Society of London & Middlesex v.B. (B.), 2000 CanLII 20770, (2000), 4 R.F.L. (5th) 183, [2000] O.J. No.235, [2000] O.T.C. 105, 2000 CarswellOnt 205 (Ont. S.C.J.), disagreedwith Justice Campbell’s approach. He found that, although some hearsayevidence in a child protection proceeding may be admissible for the truthof its contents without the necessity of meeting the test in R. v. Khan,supra, the discretion to admit such evidence was very limited and cer-tainly should not be admitted on the threshold issue of whether or not achild is in need of protection, at which stage the discretion to admit itmay not even exist. He felt that the discretion may be broader at the dis-positional stage of a protection hearing or at a status review. In fact, hesaid at paragraph [17] the following:

[17] If the hearsay evidence sought to be admitted for its truth goesto the issue of whether or not the child is in need of protection, Iwould always decline to admit that evidence if it did not meet the testof reliability and necessity. Indeed, the discretion to admit it may noteven exist.

49 Justice Aston further expressed concern that a general discretion toadmit hearsay statements based on the parens patriae jurisdiction thatapplied to a superior court of jurisdiction in Ontario could not applythroughout the province of Ontario where child protection applicationsmust be brought in statutory courts of record, namely, the Ontario Courtof Justice, which had no corresponding inherent jurisdiction as a statu-tory court.

50 Justice Stanley Sherr dealt with this very dilemma relating to thewidth of the exception to hearsay evidence under subsection 50(1) of theAct in Children’s Aid Society of Toronto v. L. (L.), 2010 ONCJ 48, 83


R.F.L. (6th) 431, [2010] O.J. No. 686, 2010 CarswellOnt 920 (Ont. C.J.),when he was asked to consider at trial the admission of hearsay con-tained in third-party records and reports. On the one hand, Justice Sherridentified that there were those cases that decide that almost any item ofhearsay is admissible, but subject to the court’s attaching appropriateweight to them. He also identified other cases that urged a stricter stan-dard of necessity and reliability for threshold (my emphasis) admissionof this type of evidence. He preferred this later approach to admittingbusiness records and past parenting evidence containing inadmissiblehearsay and opinion evidence. He also found comfort in this approachthat the Inquiry into Pediatric Forensic Pathology in Ontario (To-ronto:Queen’s Printer for Ontario, 2008) prescribed for judges in maintaining avital gate-keeping role to protect the legal system from the dangers ofunreliable evidence.

51 How can one then reconcile these various approaches to the admis-sion of evidence in child protection proceedings and concurrently, thesummary judgment motion? What rules can be ascertained from this as-sembly of decisions relating to the Family Law Rules, admissible andinadmissible evidence, threshold admissibility but nonetheless “weigh-ing” the evidence and other common law rulings and statutory exceptionsrelating to the admission of hearsay? This diversity of judicial ap-proaches, I dare say, likely prompted Professor D.A. Rollie Thompson in“Are There Any Rules of Evidence in Family Law?” (2003), 21 Can.Fam. L.Q. 245, and his companion piece in “The Cheshire Cat, or JustHis Smile? Evidence Law in Child Protection” (2003), 21 Can. Fam.L.Q. 319, to ask these questions.

52 In order to provide some direction in this complex mix of law anddiscretion against the backdrop of the competing priorities concerningthe best interests of children, I respectfully suggest that the followingconsiderations might be considered on the summary judgment motion:

1. Evidence should be by affidavit or other admissible form (for ex-ample, transcript of oral questioning or oral evidence with leave);

2. Evidence by affidavit should ideally be within the person’s ownknowledge (that is, first-hand or direct);

3. Evidence should ideally be in the form of concise, succinct, fo-cused statements of facts.

4. Counsel should avoid affidavits the contain rambling narratives,long recitations, irrelevant facts and provide a virtual “documen-tary dump truck” or shot-gun approach to the filing of evidence;


5. The affidavit should contain a full evidentiary record and containall the evidence the party would present if there had been a trial;

6. The responding party must put their “best foot forward” and can-not rely on bald assertions or mere denials. The affidavit shouldestablish a factual basis to support the conclusion that there is agenuine issue for trial (that is, a viva voce hearing), such as issuesof credibility or drawing of inferences from conflicting evidenceor where more than one inference is available from the evidence;

7. Where evidence is not within the person’s own knowledge, it maybe obtained from a third party, providing the person identifies thesource of the information and states that he or she believes theevidence to be true. Merely attaching third-party reports, letters,observations and statements to an affidavit does not necessarilymake the contents of the document or the observations or state-ments admissible as evidence;

8. An affidavit should address the basis for the court’s admission ofotherwise inadmissible evidence applying what I would describeas the “MacKenzie” rule (see paragraph [34], above) if it is hear-say evidence;

9. Most cases accept that subrules 14(19) and 16(5) provide a discre-tion to accept or reject hearsay evidence;

10. Even if the inadmissible evidence is admitted, the court is ex-pressly allowed to draw unfavourable conclusions about it andmay attach little weight to it;

11. Less certain is the wholesale admission of any evidence, admissi-ble or not, simply because the motion involves child protectionproceedings;

12. In fact, there appears to be no universal acceptance of the proposi-tion that a court should admit inadmissible evidence in a childprotection case under the guise of a child’s best interests or as partof an inherent jurisdiction to do so.

13. The summary judgment motion should be approached with cau-tion, especially if the request is for Crown wardship. The reliefsought will likely have a direct bearing on the nature and suffi-ciency of the evidence requested on the motion.


5: Analysis53 I now turn my attention to the affidavits before me to address its defi-

ciencies and deficits:

1. The society’s motion relies upon the affidavit of Grace Dorion,the family services worker, sworn on 6 May 2011 to support theorder of Crown wardship. This affidavit incorporates by referenceMs. Dorion’s affidavit of 25 February 2010, which was previouslyfiled before me to support the finding of protection and “all of theattached exhibits to that affidavit”.

2. Overall, let it be said, that the affidavit of 25 February 2010 andits exhibits was particularly unhelpful to the court on the findingof protection. My finding in this matter was made pursuant toclauses 37(2)(c) and (d) of the Act. I have particularized my briefreasons and the evidence that I considered in paragraph [10] ofthese reasons. My facts are derived largely and exclusively fromthe transcript of agreedupon facts as part of the mother’s guiltyplea before Justice G. DeMarco on 26 January 2010. That tran-script was annexed as exhibit “C” to Ms. Dorion’s affidavit of 25February 2010. I have allowed its admission, as it is a first-handaccount prepared by a certified court reporter of what facts wereagreed upon to support the convictions entered. That transcript didnot reveal, however, the sections of the Code to which the motherhad pleaded. I asked for and sought a copy of the mother’s crimi-nal information so that I could ascertain those sections. When theinformation was produced to me, it revealed that a publication banpursuant to section 486.4 of the Code had been imposed relatingto the criminal proceedings. I expressed concern about the “publi-cation” of these materials before me. I am now satisfied, however,that subsection 486.4(4) applies in respect of the society’s filingsas a result of the Crown Attorney’s submissions in this matter.Unfortunately, the society did not anticipate or address these is-sues at all prior to its filings in support of the finding ofprotection.

3. Some of the evidence presented before me at the time of the pro-tection finding was agreed upon to be disputed and not to be reliedupon for any purpose and certainly not for the truth of its contents.I refer to exhibit “F” referred to in the affidavit of Ms. Dorion,which are the findings of Dr. William J. Komer, M.D., dated 19January 2010, relating to a mental health assessment that he con-


ducted on the mother for the purpose of trial fitness issues relatedto the criminal charges. Unfortunately, society counsel has madeno attempt to sever or expunge this report at the time of the dispo-sition phase of this summary judgment motion. I have not referredto these findings as the mother’s counsel expressly indicated thatthey were not agreed to. In addition to expressing an opinion re-lated to the mother’s trial fitness, the report contains inadmissiblehearsay and narrative by the doctor. By simply asking that Ms.Dorion’s affidavit of 26 March 2010 be incorporated by referenceinto her more recent one, society counsel has inadvertently in-cluded these materials despite his agreement not to do so, includ-ing an inadmissible exhibit;

4. The rest and remainder of the affidavit of Ms. Dorion’s of 25 Feb-ruary 2010 is largely a historical summary of the file recordingsrelating to the mother and a narrative of Ms. Dorion’s attendanceswith the mother prior to C.’s apprehension. It contains largelyinadmissible and multiple hearsay (that is, double and triple) ob-servations and statements, inadmissible opinion evidence from va-rious unnamed sources, some of which are anonymous. No at-tempt has been made to comply with subrule 16(5) whatsoever.No first-hand reports or records have been filed or relied upon asbusiness records or otherwise.

5. The information in this affidavit is not focused or thematically or-ganized so that I can make some connection as to how this histori-cal information assists in connection with the finding of disposi-tion before me.

6. Particularly egregious is the fashion in which the findings of a Ms.Susan Sorrell of the Healthy Babies - Healthy Children has beenorganized. I have no idea who Ms. Sorrell is or her capacity toprovide the reports, observations, opinions and commentary thathas been attributed to her. I have no evidence before me to assessthe circumstances under which her findings were made. One clas-sic example is Ms. Dorion’s allegation that Susan Sorrell told herthat the mother has a “history of dishonesty”. I cannot ascertainwhen this was said and in relation to what events.

7. Other examples of serious deficiencies in this affidavit include thesociety’s wideranging inferences that the mother suffers from cog-nitive impairment and mental health issues. The affidavit refers tounnamed sources at the Chatham-Kent Children’s Services as the


source of these findings. No direct psychiatric or medical findingsor reports relating to the mother’s mental health functioning arereferred to or incorporated into the motion record before me.

8. No attempt has been made to obtain direct or first-hand accountsfrom various third-party sources.

9. Most importantly, I simply cannot ascertain how or why thislargely narrative information provides me with the factual basis tosupport a finding of Crown wardship.

54 I will move to Ms. Dorion’s affidavit of 6 May 2011.

1. I am prepared to accept the following as unopposed facts set out inher affidavit:

(a) The mother is not making a plan for her son and does notoppose the finding of Crown wardship;

(b) The grandparents have not filed an answer to the amendedapplication nor attended court since;

(c) The grandparents expressed an interest in proposing a planfor C.’s care early on in these proceedings. No such planhas ever been received;

(d) The grandparents failed to obtain police clearances andother requested reports so that the society could complete akingship assessment of them;

(e) The grandparents have not been approved as a kinshipplacement pursuant to Ministry standards;

(f) Ms. Dorion and Mr. S.G. spoke on 23 November 2010 andMs. Dorion forwarded pictures of C. to him;

(g) The mother is incarcerated and scheduled to be releasedfrom custody on 31 May 2011.

2. Paragraph 14 of Ms. Dorion’s affidavit alleges that, upon cominginto care, C.’s foster mother and child’s worker made observationsof him. There is a reference to “Safe Kids”. It is impossible toascertain “who” saw “what”, given the fashion in which this para-graph has been drafted and “who” or “what” Safe Kids is. Theinformation appears to be in the nature of inadmissible opinionevidence. C. is described as having “no boundaries”, “no strangeranxiety” and not engaging on a “social level” whatever thatmeans. The specific source of this information is not disclosed,


nor is Ms. Dorion’s belief in the accuracy or truthfulness of thisevidence. As such, it does not comply with the rules.

3. Paragraph 15 of Ms. Dorion’s affidavit describes C.’s gains afterbeing placed in foster care as being “potty trained, his socializa-tion has improved and his behaviour is age appropriate.” I cannotascertain who the source of this information is. The factual find-ings supporting these conclusions is missing. The deponent doesnot assert that she believes in the truth of these statements. Theevidence once again, appears to be inadmissible opinion evidence.

4. Paragraph 16 is drafted in what is best described as the “shot gun”approach. Ms. Dorion alleges the following without any referenceto the specific source of her information or that she believes it tobe true. Once again, this appears to be inadmissible opinion evi-dence:

(a) C. has been to Children’s First for speech therapy, saw aDr. Roy (no first name or qualifications is provided), at-tends day care and junior kindergarten “with positive re-ports” and has no disabilities or special needs.

(b) C. has met all his developmental milestones and may wellbe exceeding them.

(c) C. never mentions “his mother or grandparents since com-ing into care”;

(d) There is nothing to suggest that C. requires long-termservices.

5. Paragraph 17 attempts to address the issue of access and the bestinterests of C. relating to his blood ties and family. According toMs. Dorion, C. has “blocked his mother and grandparents out ofhis life”. Any access between him and his family, according toMs. Dorion, would jeopardize his gains and retraumatize him.Once again, it is impossible to properly ascertain who the sourceof this information and these findings is; what his or her capacityand professional background is to make these observations andexpress these opinions. Once again, Ms. Dorion does not deposethat she has a belief in the truthfulness of this evidence.


6. It is impossible to ascertain from this affidavit why first-hand ac-counts of these findings were not sought or why professional orexpert reports were not tendered.

55 I am not at all satisfied with the quality or sufficiency of this evidencebefore me. In addition, there are complete gaps in the evidence beforeme. There is no statutory plan of care pursuant to section 56 of the Actthat has been filed on the motion’s return and no evidence at all beforeme addressing the mandatory inquiries that I must make pursuant to sub-sections 57(2), (3) and (4) of the Act. Moreover, there is no relevant evi-dence relating to the issue of this child’s access or openness orders pur-suant to section 59 of the Act. I repeat these sections for review (myemphasis added):

57. — (2) Court to inquire. — In determining which order to makeunder subsection (1) or section 57.1, the court shall ask the partieswhat efforts the society or another agency or person has made to as-sist the child before intervention under this Part.

(3) Less disruptive alternatives preferred. — The court shall notmake an order removing the child from the care of the person whohad charge of him or her immediately before intervention under thisPart unless the court is satisfied that alternatives that are less disrup-tive to the child, including non-residential services and the assistancereferred to in subsection (2), would be inadequate to protect thechild.

(4) Community placement to be considered. — Where the court de-cides that it is necessary to remove the child from the care of theperson who had charge of him or her immediately before interventionunder this Part, the court shall, before making an order for society orCrown wardship under paragraph 2 or 3 of subsection (1), considerwhether it is possible to place the child with a relative, neighbour orother member of the child’s community or extended family underparagraph 1 of subsection (1) with the consent of the relative or otherperson.

. . .

59. — (2) Termination of access to Crown ward. — Where the courtmakes an order that a child be made a ward of the Crown, any orderfor access made under this Part with respect to the child isterminated.


(2.1) Access: Crown ward. — A court shall not make or vary an ac-cess order made under section 58 with respect to a Crown ward un-less the court is satisfied that,

(a) the relationship between the person and the child isbeneficial and meaningful to the child; and

(b) the ordered access will not impair the child’s futureopportunities for adoption.

. . .

(4) Society may permit contact or communication. — If a society be-lieves that contact or communication between a person and a Crownward is in the best interests of the Crown ward and no openness orderunder Part VII or access order is in effect with respect to the personand the Crown ward, the society may permit contact or communica-tion between the person and the Crown ward.

56 The record before me is an unfortunate constellation of errors. It re-flects poor and ineffective draftsmanship, lack of focus and thematic or-ganization, a failure to adhere to basic rules relating to affidavits and thefundamentals of admissible evidence. As the gatekeeper of this evidenceand the final arbitrator of this child’s best interests, I must decline thesociety’s request.

Motion dismissed.


[Indexed as: Young v. Young]

Svea Anne Young (Plaintiff) and Evan George Young alsoknown as George Young (Defendant)

British Columbia Supreme Court

Docket: New Westminster E21451

2011 BCSC 887

A. Saunders J.

Heard: October 18, 2010


Family law –––– Support — Spousal support under Divorce Act and provin-cial statutes — Variation or termination — Change in financial circum-stances — Change in means of spouse –––– Parties separated in 2005 aftermarriage of more than 33 years — Husband was breadwinner during mar-riage — On December 12, 2005, husband was ordered to pay spousal support of$3,000 per month — In 2007, husband brought unsuccessful application to varysupport order — In July 2008, husband was advised that his last active day ofemployment would be September 18, 2008 — Husband’s regular salary and be-nefits continued until January 15, 2010 — Husband did not pay spousal supportsince January 15, 2010 — In February 2010, husband began to receive pensionand bridge benefits — Husband brought application for rescission of spousalsupport order and termination of his support obligation — Application dis-missed — Husband was ordered to provide continued support on basis of hisemployment earnings and his bridge benefit, and on basis of imputed income ofwife of $10,000 — Husband was ordered to pay lump sum to wife as arrears ofspousal support, from January 15, 2010 onwards — Husband’s forced retire-ment, in and of itself, could not be treated as material change justifying termina-tion of support — Forced retirement was material to husband’s ability to pay,but did not affect wife’s entitlement to continuing support — Husband was notentitled to simply acquiesce with employer’s decision, refrain from taking activesteps to find other employment, and then seek relief from his supportobligations.

Cases considered by A. Saunders J.:

Bargh v. Bargh (2003), 2003 BCSC 489, 2003 CarswellBC 740, 37 R.F.L. (5th)235 (B.C. S.C.) — distinguished

Boston v. Boston (2001), 201 D.L.R. (4th) 1, 28 C.C.P.B. 17, 271 N.R. 248, 149O.A.C. 50, 17 R.F.L. (5th) 4, 2001 C.E.B. & P.G.R. 8385 (headnote only),2001 CarswellOnt 2432, 2001 CarswellOnt 2433, 2001 SCC 43, [2001] 2

Young v. Young A. Saunders J. 411

S.C.R. 413, [2001] S.C.J. No. 45, REJB 2001-25002 (S.C.C.) —distinguished

Chalmers v. Chalmers (2009), 2009 CarswellBC 998, 2009 BCSC 517, 2009C.E.B. & P.G.R. 8340, [2009] B.C.J. No. 765 (B.C. S.C.) — distinguished

Cramer v. Cramer (2000), 2000 BCCA 272, 139 B.C.A.C. 34, 227 W.A.C. 34,2000 CarswellBC 908, 75 B.C.L.R. (3d) 125, [2000] 6 W.W.R. 47, 186D.L.R. (4th) 704, 6 R.F.L. (5th) 107, [2000] B.C.J. No. 873 (B.C. C.A.) —distinguished

Muzzillo v. Muzzillo (2001), 2001 BCCA 44, 2001 CarswellBC 100, 11 R.F.L.(5th) 352, 148 B.C.A.C. 155, 243 W.A.C. 155 (B.C. C.A.) — distinguished

Pinder v. Pinder (2010), 83 R.F.L. (6th) 3, 2010 CarswellBC 1207, 2010 BCCA235, 5 B.C.L.R. (5th) 86 (B.C. C.A.) — referred to

Walters v. Walters (2010), 2010 CarswellBC 1422, 2010 BCSC 828 (B.C.S.C.) — distinguished


Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)s. 15.2(6) [en. 1997, c. 1, s. 2] — considereds. 17 — considereds. 17(6) — considered

Pension Benefits Standards Act, R.S.B.C. 1996, c. 352Generally — referred to

APPLICATION by husband for rescission of spousal support order and termina-tion of his support obligation.

D. Hart, for PlaintiffB. Churchill, for Defendant

A. Saunders J.:

1 This is an application brought by the defendant, Mr. Young, seekingrescission of a spousal support order made in December 2005, and termi-nation of his support obligation. The changes in material circumstanceswhich are purported to serve as a basis for the application are that Mr.Young was forced into mandatory retirement by his employer, InsuranceCorporation of British Columbia, in June 2008, when he was 57 yearsold; or, alternatively, that Ms. Young became entitled to receive a pen-sion under the Pension Benefits Standards Act, R.S.B.C. 1996, c. 352,when she turned 55, in April, 2007.


Background2 As of the date of the initial hearing of this application on October 18,

2010, Mr. Young was 60 years of age; Ms. Young was 58. The partieshad separated in 2005 after a marriage that had lasted more than 33years.

3 It appears from the affidavit material that Mr. Young was the bread-winner during the marriage. Ms. Young had worked as a clerk in themedical records department of a hospital between 1976 and 1978. Mr.Young states in his affidavit sworn May 26, 2010, that his wife’s deci-sion not to work during their marriage was always a source of frictionbetween them. He also states that since the early 1990’s, he regularlyasked Ms. Young to deliver her resume to an individual responsible forhiring clerical staff at a local hospital, and that Ms. Young refused to doso, and accused him of forcing her back to work. None of this is deniedby Ms. Young.

4 By way of an interim order pronounced December 12, 2005, by ColeJ., following a Judicial Case Conference, Mr. Young was ordered to pay$3000 per month for 12 months, with the order being reviewable on themotion of either party at the expiration of 12 months. There were ordersmade dividing the parties’ assets equally, including the division of Mr.Young’s pension plan with ICBC.

5 By way of an interim order made by Grist J. on June 14, 2007, theparties were divorced, and Mr. Young’s application for variation of the2005 order of Cole J. was dismissed.

6 In July of the following year Mr. Young, who was then 57 years old,was advised by his employer that his last active day of employmentwould be September 18, 2008. His regular salary and benefits continueduntil January 15, 2010, and he became eligible to receive pension bene-fits effective February 1, 2010. Mr. Young then resided in Peachland,B.C. His job title had been Material Damage Regional Manager for theSouthern Interior Region.

7 Since February 2010, Mr. Young receives $1551.21 per month, andan additional bridge benefit of $393.87. The bridge benefit is payable upto October 31, 2015, and is in consideration of his monthly pension bene-fit being less than it would have been had he remained employed untilage 65.

8 Mr. Young has not paid spousal support since January 15, 2010, thatbeing the date of commencement of his early, forced retirement. He


seeks a final order terminating his spousal support obligation effective asof that date.

9 This application was brought before me as a rescission applicationunder s. 17 of the Divorce Act, R.S.C. 1985, c. 3, and not as an applica-tion to review support. As noted above, the material change in circum-stances necessary to trigger the s. 17 application is said to be the cessa-tion of Mr. Young’s regular employment, or alternatively, Ms. Young’sentitlement to receive a share of Mr. Young’s pension plan, when shereached the age of 55.

Evidence and Positions of the Parties10 In his affidavit sworn April 6, 2010, Mr. Young made no mention of

efforts to secure other employment following cessation of his employ-ment termination benefits.

11 In his next affidavit, sworn May 26, 2010, Mr. Young disclosed in thefinal paragraph that he had begun working in a part-time, seasonal posi-tion with a silviculture company, as of April 9, 2010. That affidavit doesnot state whether Mr. Young unexpectedly secured that job betweenApril 6 and April 9, or, if he had secured it prior to April 6, it does notexplain why this fact was not disclosed earlier.

12 The job with the silviculture company was expected to conclude inOctober 2010. Mr. Young’s hope, as he explained in his May 26 affida-vit, was to earn $8000-$10,000 in that job.

13 However, in a further affidavit filed on the date of the hearing of thisapplication, Mr. Young disclosed that four persons had left the employ ofthe company due to injury or finding other employment, and were notreplaced; this meant that there was more work available for Mr. Young,and as a result he earned more than expected. He disclosed in that affida-vit that his earnings to September 25, 2010 totalled $24,404.95 gross.

14 In rough terms it appears that, extrapolating to the end of October2010, his expected lay-off date, his earnings from employment by thatcompany in the year 2010 would total approximately $28,470 gross.

15 There is no other evidence given by Mr. Young as to efforts to findemployment.

16 Ms. Young’s affidavits disclose that she was working in B.C. untilthe end of 2008. She describes what she did as a physically demandingjob. Her financial statement filed in February 2010 discloses a history ofmodest employment income, presumably from that job: $11,163 in 2006,


$10,486 in 2007, and $10,889 in 2008. Ms. Young says that the job irri-tated a back injury which she had sustained in a motor vehicle accidentin 2004, and that for that reason, and in order to assist her daughter incaring for her young granddaughter, when her daughter was returning towork, she moved to Calgary in January 2009. Her daughter paid her $400per month to look after the parties’ granddaughter, commencing in July2009. She describes the job of looking after her granddaughter as “fairlydemanding”, and she did it 24 hours per week. That arrangement was tocease at the end of March 2010 when her daughter was to go onto amaternity leave.

17 Ms. Young’s affidavits do not disclose any effort on her part to obtainemployment. There is no medical evidence that her ability to undertakeemployment is restricted in any way. She states, in her affidavit swornApril 23, 2010, her impression that the Calgary job market is soft andthat such demand as there is appears to be for young and highly educatedapplicants. She further states that she does not recall any part of the courtorder for spousal support requiring her to seek employment.

18 It appears that Ms. Young received slightly more than $286,000 asher share of Mr. Young’s pension entitlement. This application was ar-gued before me on the basis that Ms. Young’s share of Mr. Young’s pen-sion had been paid by her into a “locked-up” RSP, and the funds werenot available to her. Thus, it was argued for Ms. Young, this was anappropriate case to order that spousal support continue to be paid by Mr.Young out of his share of the pension benefits, as was ordered in Pinderv. Pinder, 2010 BCCA 235 (B.C. C.A.), notwithstanding that this wouldconstitute a form of double recovery.

19 I directed that Ms. Young file affidavit evidence as to the nature ofthe RSP, and that the parties make further written submissions. Materialswere filed in the registry by the end of January 2011, but were not copiedto me through Trial Scheduling, were not directed to my attention, andwere not received by me until quite some time later.

20 By way of a consent order pronounced by Masuhara J. on November25, 2010, execution of spousal support and spousal maintenance wasstayed until further order of the Court or agreement of the parties.

21 Ms. Young deposes, in an affidavit sworn November 25, 2010, thatshe chose the “locked-in” option as she understood it would maximizethe retirement income available to her at the point when Mr. Young re-tired. She did not, it appears, contemplate the risk of him being forcedinto early retirement. However, it does now appear that since 2007, when


Ms. Young reached the age of 55, she has been entitled to have thosefunds placed in a Life Income Fund. Further, the fact that she chose anRSP initially as her savings vehicle would not now prevent her fromtransferring those funds into a LIF.

22 There is no evidence before me as to the mechanics or timing of Ms.Young’s election to have share of the pension paid out to her. It appearsthat her entitlement to receive a lump sum payment from ICBC arose inApril 2007, but that she did not apply to open an RSP, with her contribu-tion of $286,735.31, until March 2008. I have been advised that despiterepeated requests made on behalf of Mr. Young, there has been no dis-closure of the correspondence and documents that passed between ICBCand Ms. Young.

23 On behalf of Mr. Young, it is argued that the criteria to be used todecide an application to vary a compensatory support order made by aretired payor spouse are the needs of the payee; the ability of the payor topay; and the extent, if any of double recovery: Boston v. Boston, 2001SCC 43 (S.C.C.)at paras. 61-62.

24 With respect to need, it is said that Ms. Young has an ability to earnincome through the pension fund and her savings; reference is made inthe applicant’s argument to other RSP’s held by Ms. Young and dis-closed in her financial statement, although there is no evidence before meof the nature of those funds.

25 It is argued, on the basis of affidavit material filed subsequent to thehearing, that Ms. Young would, from her share of the pension fundalone, be able to earn an annual after-tax income of $16,800. It is furtherasserted that with a modest effort to obtain employment, Ms. Youngcould earn additional income of up to $22,000 per year.

26 There has been no cross-examination on the affidavits, in particularno cross-examination of Ms. Young on her financial statement, whichputs her annual expenses at $57,020.

27 As regards ability to pay, Mr. Young, it is argued, is currently unem-ployed and has no income beyond his pension income of just under$2000 per month, which he is not obliged to take into account — a pro-position which, I agree, finds support in Boston.

28 It is argued that given the objectives of spousal support orders, theneeds, means, capacities and circumstances of the parties, and Ms.Young’s failure to make reasonable obligations to become self-sufficient,spousal support should be terminated.


29 The applicant relies on Boston and on a number of B.C. authorities:Cramer v. Cramer, 2000 BCCA 272 (B.C. C.A.); Muzzillo v. Muzzillo,2001 BCCA 44 (B.C. C.A.); Bargh v. Bargh, 2003 BCSC 489 (B.C.S.C.); Chalmers v. Chalmers, 2009 BCSC 517 (B.C. S.C.); and Waltersv. Walters, 2010 BCSC 828 (B.C. S.C.).

Discussion30 As noted above, Ms. Young has deposed that she does not recall any

part of the court order for spousal support requiring her to seekemployment.

31 The concept of self-sufficiency, of course, arises not from court or-ders, but from the wordings of ss.15.2(6) and 17(6) of the Divorce Act,which include amongst the objectives of a support or support variationorder the goal of promoting, in so far as practicable, the economic self-sufficiency of each spouse within a reasonable period of time.

32 This was not an application for review. The onus, on this application,is on the applicant to show that there are material changes in circum-stance which warrant termination of the support obligation.

33 The first factor to be decided in determining spousal support is enti-tlement. There is no evidence before me upon which I could determinewhether or not there is a continuing entitlement to support. If there is anentitlement, it seems to me that Ms. Young’s failure to find employment- if employment was available to her - could form the basis for an impu-tation of income and a reduction in support. But on the evidence beforeme, I cannot find that that support should cease.

34 Ms. Young’s entitlement to take a lump sum payment from her hus-band’s employer in 2007 cannot be viewed as a material change. Con-trary to the applicant’s submissions, a support payee is not obliged tobegin drawing income from that fund, upon receipt; the obligation to doso arises only upon the payor retiring. Neither, it seems to me, can Mr.Young’s forced retirement, in and of itself, be treated as a materialchange justifying a termination of support, given that it was neither antic-ipated nor desired by the two parties. The forced early retirement wasand is material to Mr. Young’s ability to pay, but in my view it cannotaffect Ms. Young’s entitlement to such continuing support as Mr. Youngought to be able to provide.

35 I find it remarkable that the applicant apparently expects the Court,on this application, to take account of Ms. Young’s failure to demon-strate a need for spousal support, but simultaneously to disregard the lack


of evidence from Mr. Young as to his own efforts to find employmentother than with a silviculture contractor.

36 Mr. Young was only 57 years of age when he was forced into “retire-ment”. It would not be an easy task for someone of his age to find otheremployment which matched his experience and skill set. But there is noevidence that he directed any energy to finding employment once he wasgiven notice in mid-2008. In 2010, within the first year following termi-nation of his severance benefits he did find work in one part-time sea-sonal job, but he has produced no evidence of any other attempts to findemployment, nor, as noted above, as to his intention to do so.

37 It is beguiling to label Mr. Young’s circumstance as “retirement” andto treat it, for the purpose of determining spousal support, as theequivalent of voluntary retirement. In reality, the circumstances of Mr.Young’s forced departure from his employment appear to me only to bea “retirement” in the sense that under the governing legislation his em-ployer, given his age, was allowed to accelerate payout of his pensionand thus reduce its liability to pay compensation in lieu of notice.

38 There is no question that a payor spouse who has reached the ex-pected age of retirement, or who retires for medical reasons, may fairlybe relieved of an obligation to continue spousal support payments, orhave that obligation reduced, when the payee has received a share ofpension entitlement, or an equalization of assets in lieu of. But I have notbeen referred to any authority for the proposition that when a payeespouse has a continuing entitlement to support due to her years of contri-bution to the marriage, a payor who is forced into early retirement issimply entitled to acquiesce in the employer’s decision, refrain from tak-ing active steps to find other employment, and then seek relief from hissupport obligations. To put it another way, I do not see any justification,on the evidence before me, for not imposing upon Mr. Young the sameobligation to seek employment as would apply to a payor spouse whoseemployment contract has been terminated through notice.

39 It may be that Mr. Young has not been of a mind not to seek furtheremployment because he has been content to cut back on expenses andlife a more modest lifestyle. I do not know if that is so, as I do not haveevidence. But if that is the case, Ms. Young, if she has a continuing enti-tlement to support, cannot be disadvantaged by Mr. Young’s lifestyledecisions.

40 I do not find the authorities cited by the applicant to be of assistancein the present case. In Boston the payor husband was 63 years old when


he retired in January 1997, and then continued to earn some consultingincome for the next two years. He applied for variation of his supportobligation in August 1998, on the grounds that his pension incomeshould not affect determination of his ability to pay. His wife had ob-tained assets worth approximately $370,000 on equalization, and throughprudent investing that sum had grown to $493,000. The motions judgeallowed the husband’s application and reduced the monthly amount ofsupport from $3,433 to $950. The Court of Appeal increased the supportto $2,000. The Supreme Court of Canada allowed the appeal and restoredthe motions judge’s order.

41 In Cramer, the husband had health issues which led to a reduction inincome, held to be a justification for a reduction in support. The wife hadalways understood that the husband hoped to retire early.

42 In Muzzillo, the husband’s application to reduce support was allowedwhen he became eligible for retirement at the expected time.

43 In Bargh, the husband had retired at the expected date.44 In Chalmers, the husband retired as expected before the age of 60, but

then continued to do consulting work for the next eight years until heceased taking on new work at age 66 due to health reasons.

45 In Walters, there was evidence before the court to explain the hus-band’s inability to find work following his termination. Support was va-ried, not cancelled.

46 The application to terminate Mr. Young’s support obligation throughdismissal of Ms. Young’s claims for support, is denied.

47 The application to rescind the support obligation effective January 15,2010 is also denied.

48 The order of Cole J. will be varied on an interim basis to accord withthe following. Mr. Young will be obliged to pay a lump sum to Ms.Young as arrears of spousal support, retroactively for the year 2010,from January 15, 2010 onwards. The amount of support will be deter-mined under the SSAG formula, based on him having a income for thatyear which is the total of the following: his gross earnings from employ-ment with the silviculture company, less applicable deductions; allamounts earned from any other employment; and the amounts paid byICBC as the bridge benefit (presumably the monthly sum of $393.87multiplied by 12, for a subtotal of $4,726.44).

49 Mr. Young, within 14 days of the date of this order, shall file anddeliver an affidavit confirming his total 2010 earnings from all sources.


50 I include the bridge benefit in Mr. Young’s income for the purpose ofthe support calculation as it is a supplement to the pension income, ap-parently paid in recognition of the fact that his early “retirement” accel-erated his pension and therefore deprived him of further growth of hispension fund. Ms. Young has not had that advantage. It appears to meappropriate therefore to view the bridge benefit as a form of incomewhich should be accounted to their mutual benefit.

51 The amount of support for that year, 2010, will also be based on im-puted income to Ms. Young of $10,000.

52 Beyond that, I am unable to determine, on the basis of the evidencefiled, what the specific quantum of Mr. Young’s current continuing sup-port payments, through the year 2011 to date and continuing, should be.

53 On an interim basis, Mr. Young will be obliged continue indefinitelyto provide support on the basis of his employment earnings and hisbridge benefit, and on the basis of an imputed income of Ms. Young of$10,000.

54 Mr. Young shall, within 30 days of this order, file and deliver an affi-davit disclosing with full particulars all efforts made by him to obtainemployment since his 2008 termination by ICBC; and exhibiting copiesof all documents which evidence such efforts, and shall thereafter pro-vide Ms. Young promptly with copies of all written communications, in-cluding emails, to prospective employers or concerning furtheremployment.

55 Ms. Young will have her costs of this application.56 The parties remain at liberty, if they are unable to agree, to pursue

review of support. I encourage them to do so.

Application dismissed.


[Indexed as: Wiktorowski v. Ramsay]

Stanley Wiktorowski (Petitioner) and Stephanie Lynn Ramsay(Respondent)

Saskatchewan Court of Queen’s Bench

Docket: Moose Jaw D.I.V. 72/11

2011 SKQB 348

L.M. Schwann J.

Judgment: September 22, 2011

Family law –––– Custody and access — Interim custody — Factors consid-ered — Best interests of child –––– Parties married in 1996, and separated inJanuary 2011 — Parties had three children, N, born December 25, 1997, and LAand LU, born June 20, 2002 — Parties moved from England to Canada shortlyafter marriage — In January 2009, mother was posted to Canadian Forces Base,Moose Jaw for pilot training — In April 2011, father moved out of familyhome — Since then, children had been primarily in mother’s care — Motherwas scheduled to attend air traffic control training out of province and sought toleave children in care of grandmother for six weeks — Mother brought applica-tion for interim custody and for order directing children to remain in care ofgrandmother while mother was in training — Application dismissed — Partieswere granted joint custody on shared parenting basis — Father was ordered toparent children when mother was in training — Both parties parented children inyears leading up to their separation — There was no suggestion that childrenwere not doing well under mother’s care, or that their relationship with fatherwas anything less than loving and stable — Father’s financial situation, althoughnot optimal, was not deterrent to his ability to parent — Fact that father couldnot help children with their French homework was but one factor used to assessbest interests of children.

Family law –––– Custody and access — Joint custody — Shared parent-ing –––– Parties married in 1996, and separated in January 2011 — Parties hadthree children, N, born December 25, 1997, and LA and LU, born June 20,2002 — Parties moved from England to Canada shortly after marriage — InJanuary 2009, mother was posted to Canadian Forces Base, Moose Jaw for pilottraining — In April 2011, father moved out of family home — Since then, chil-dren had been primarily in mother’s care — Mother was scheduled to attend airtraffic control training out of province and sought to leave children in care ofgrandmother for six weeks — Mother brought application for interim custodyand for order directing children to remain in care of grandmother while motherwas in training — Application dismissed — Parties were granted joint custody

Wiktorowski v. Ramsay L.M. Schwann J. 421

on shared parenting basis — Father was ordered to parent children when motherwas in training — Both parties parented children in years leading up to theirseparation — There was no suggestion that children were not doing well undermother’s care, or that their relationship with father was anything less than lovingand stable — Father’s financial situation, although not optimal, was not deter-rent to his ability to parent — Fact that father could not help children with theirFrench homework was but one factor used to assess best interests of children.

Cases considered by L.M. Schwann J.:

A. (R.) v. L. (S.) (2011), 2011 SKQB 259, 2011 CarswellSask 453 (Sask.Q.B.) — considered

Chapman v. Chapman (2001), 201 D.L.R. (4th) 443, 2001 CarswellOnt 537, 141O.A.C. 389, 15 R.F.L. (5th) 46, [2001] O.J. No. 705 (Ont. C.A.) — referredto

Cox v. Wieclawski (2010), (sub nom. M.J.C. v. M.J.W.) 349 Sask. R. 306, 2010SKQB 56, 2010 CarswellSask 66 (Sask. Q.B.) — considered

Hayes v. Moyer (2011), 2011 SKCA 56, 2011 CarswellSask 334, 2 R.F.L. (7th)45, [2011] S.J. No. 311 (Sask. C.A.) — considered

James v. Ross (2003), 49 R.F.L. (5th) 76, 2003 SKQB 487, 2003 CarswellSask821, (sub nom. J. (C.) v. R. (R.M.)) 240 Sask. R. 72 (Sask. Q.B.) —considered

Tucker v. Lester (2002), 29 R.F.L. (5th) 238, 220 Sask. R. 309, 2002 SKQB 225,2002 CarswellSask 331, [2002] 9 W.W.R. 585, [2002] S.J. No. 322 (Sask.Q.B.) — referred to

Rules considered:

Queen’s Bench Rules, Sask. Q.B. RulesR. 603 — considered

APPLICATION by mother for interim custody and for order directing childrento remain in care of grandmother while mother was in air traffic control training.

Kerry R. Chow, for Petitioner / RespondentR. Bradley Hunter, Q.C., for Respondent / Applicant

L.M. Schwann J.:

1 The applicant, Stephanie Lynn Ramsay, applies for an interim ordergranting her primary parenting of the children of the marriage with speci-fied access to the father, Stanley Wiktorowski, and an order directing thechildren remain in her home “in the care of her mother” over a period ofsix weeks this fall. She also seeks an order directing her to provide Stan-ley with 30 days notice of any new posting outside the jurisdiction.


Background2 The parties met in England in 1995. At the time, Stanley had been

working as a millwright/maintenance fitter at a chemical plant, and Ste-phanie was coaching gymnastics. They married in March, 1996, andshortly thereafter, moved to Canada where they have resided ever since.Until their move to Saskatchewan, discussed below, they resided at vari-ous places in Ontario.

3 Three children were born of the marriage: Natalie, born December25, 1997 and twins, Lauren and Lukasz, born June 20, 2002.

4 Following the birth of Natalie, Stanley stayed at home as the primarycaregiver. Stephanie claims he was ineffective in both managing thehousehold and looking after Natalie to such an extent that most of thehousehold chores fell to her even though she was working full time.Thereafter, both parties worked in either full or part time positions untilthe twins were born in 2002. This time Stephanie stayed home to lookafter the children while Stanley worked. Stephanie worked part time onnights and weekends as a gymnastics coach.

5 In November of 2006, Stephanie was offered employment as a pilotwith the Canadian Armed Forces. At that time neither had full time em-ployment and this offer presented an opportunity for Stephanie to de-velop her career. She enlisted in the military and from January to April2007 participated in basic training in Quebec. Stanley looked after thechildren during this period of time. In January, 2009, Stephanie wasposted to Canadian Forces Base (“CFB”), Moose Jaw for pilot training.They opted to move the family unit to Moose Jaw and have resided inSaskatchewan ever since in military residential housing on the CFB. Thisconsists of a four bedroom, 1200 square foot house.

6 Stanley did not find work in Moose Jaw for about a year followingtheir move. Even though Stanley was at home during this period of time,Stephanie claims she was primarily responsible for the children’s day-to-day care and for management of household responsibilities, i.e. menuplanning, grocery shopping, extracurricular activities, school work, vaca-tion planning, etc. She claims to have taken on these roles because Stan-ley had difficulty handling the day-to-day aspects of life though she con-cedes that he is capable of handling “basic activities”. Furthermore,Stephanie maintains she alone was responsible for family finances asStanley was frequently unemployed.


7 From August to December, 2010, Stephanie was posted to Winnipegfor training. Stanley and the children remained in Moose Jaw and heparented them during this period.

8 Stephanie claims their marriage was essentially over by January,2011. Stanley remained in the family home until mid-April, 2011 whenStephanie asked him to leave. According to Stanley, Stephanie unilater-ally signed a declaration respecting their marital separation. Pursuant tomilitary regulation this action was to force Stanley out of their militaryresidence. Since then, the children have been primarily in Stephanie’scare. They see Stanley every second weekend. He occasionally attendstheir activities and visits them during the week. According to Stanley,Stephanie unilaterally imposed this access arrangement. Additionally, thesole family vehicle has remained in Stephanie’s possession. Stanley hasnot acquired a vehicle of his own since separation.

9 Stephanie is scheduled to attend air traffic control training out ofprovince from September 28th until December 15th. Upon successfulcompletion of this course, she expects to receive a promotion coupledwith a salary increase of approximately $20,000.00 per year. Thereafter,as is custom with the military, she expects to be posted to an air forcebase elsewhere in Canada. She says she has little input as to where orwhen this will happen. Should she refuse the posting, her chances of pro-motion will be seriously affected or possibly even result in military dis-charge. Stephanie concedes the possibility exists for a “compassionateposting” to Moose Jaw but characterizes this as a career limiting move.

10 With regard to a possible move, she says the following at paragraph90 of her affidavit:

90. I am seeking primary care of the children. I want the opportunityto be able to move as is essential to the children’s ultimate well-be-ing. This will undoubtedly inconvenience Stan. The move will likelyinconvenience me and the children, but overall, it will be in the bestinterests of everyone.

Stephanie is prepared to give Stanley 30 days notice if she is posted else-where in Canada. She has told him that he is more than welcome to fol-low them to her next posting and that she would assist him financiallywith the move.

11 Stephanie provided a great deal of information about her bilingualbackground, how she has fostered the French language within the homeand the importance of preserving their cultural heritage. All three chil-dren are enrolled in French school which is apparently limited to children


with proficiency in the French language. Natalie requires extra assistancebecause, unlike her siblings, she was not raised in the French languagefrom birth and was unable to attend French school until Grade 6. She isnow in Grade 9. Lukasz and Lauren are in Grade 4.

12 Stephanie expresses deep concern over Stanley’s inability to assist thechildren with their French language skills. She points to the fact Stanleyis a unilingual Anglophone with virtually no knowledge of French otherthan a few words. According to her, he is incapable of following herFrench conversation with the children, nor to assist them with theirschool work which is all in French. Stephanie claims the children’shomework was poor and incomplete and their French language skills de-teriorated during her period of training in the fall of 2010 while underStanley’s care. To ensure their language proficiency does not slip, andthat they receive bilingual assistance with their homework when she isaway this fall, she proposes to leave the children in the care of hermother for six of the twelve weeks. Not only will this arrangement assistthe children academically, she contends it is to be preferred over the chil-dren residing in Stanley’s small, two bedroom apartment which she saysis not suitable for four people for any length of time.

13 At the time of separation, Stephanie was the principle if not sole in-come earner in the family. She expects her salary to rise to $70,000 peryear upon successful completion of her training. Stanley works a 20 hourwork week and earns $1,808.00 per month. Stephanie wishes to be theprimary parent because she has far better prospects for a stable financialfuture compared to Stanley

14 According to Stephanie, Stanley suffers from depression and anxiety.This illness first manifested itself early in their marriage. She says Stan-ley suffered another serious bout in 2004, and again following their moveto Moose Jaw. The latter episode necessitated a trip to the hospital emer-gency, medication and ongoing counseling. She claims that over time hisdepression has become increasingly lasting and debilitating.

15 Stanley’s evidence, understandably, differs from Stephanie’s with re-gard to which parent was the primary caregiver and her assessment of hisability to properly parent the children. According to Stanley, the partieshad agreed that upon their move to Canada, Stephanie would pursue hercareer and he would be a stay-at-home father and primary caregiver totheir children. Further, he contends that from the time he immigrated toCanada in 1997 until January 2009, by mutual agreement of the parties,


he was in fact the primary caregiver and sought part-time employment tofacilitate this arrangement.

16 Stanley specifically denies being incapable of caring for the children.He claims to have sacrificed his goals and his employment for the benefitof his children and for Stephanie. Much of Stephanie’s objections to hisparenting lie in what Stanley describes as their different parenting ap-proaches and personalities. Whereas Stephanie is a disciplinarian and amore aggressive and controlling individual, he claims to be more passiveand non-confrontational.

17 Stanley takes clear exception to Stephanie’s allegations about hismental health and its impairment of his ability to care for the children.He admits to having been emotionally stressed to the point of being de-pressed on two occasions but he attributes this to the emotional stress oftheir marital discord. He says he has never been institutionalized or hos-pitalized for mental health reasons, although on two occasions he soughtprofessional help in the form of counseling and prescription medication.He is now off the medication and no longer under doctor’s care. Stanleystrongly disagrees with Stephanie’s assessment of him. He maintains thathe is not suffering from any mental or physical condition which preventshim from parenting his children. In fact, Stanley observes that he alonewas responsible for the children for much of the fall of 2010 when Ste-phanie was away on training, and this fact belies the concerns she nowexpresses. At paragraph 18 of his affidavit, Stanley identified six otheroccasions since 2007 when he was solely responsible for the childrenbecause of Stephanie’s absence.

18 Stanley also gives a different account of his departure from the familyhome. According to Stanley, military regulations prescribe that upon themilitary spouse providing a written declaration respecting marital separa-tion, the non-military spouse is disentitled to housing on the base. Hecontends that Stephanie unilaterally signed the separation form whichmeant he had no choice but to leave. Since that time, Stanley has residedin either emergency quarters or in a small apartment. The local housingauthority will provide him with a subsidized, three bedroom house inMoose Jaw if he has the children at least 50% of the time.

19 Immediately following separation, Stanley considered bringing an ap-plication for primary residence of the children. He delayed this applica-tion so as not to disrupt the children’s pre-arranged summer holiday inOntario with their maternal grandparents.


20 With regard to not being bilingual, Stanley claims the French schoolsystem can and will provide assistance to children of non French speak-ing parents. After being made aware of this possibility and requestingsame, he contends there have been no difficulties with the children com-pleting their assignments and no impairment of their education.

21 Stanley filed several affidavits from various friends who all attest tohis parenting abilities and commitment to his children. Stephanie dis-counts these affidavits either on the basis the affiants knew Stanley andStephanie for a very short period of time or because they had no knowl-edge of what transpired within the parties’ home.

Analysis22 An interim custody order, which covers the period between com-

mencement of proceedings and final resolution of the matter, is a tempo-rary not permanent order. James G. McLeod, Child Custody, Law andPractice (3rd ed.) (Toronto: Thompson Canada Limited, 1992) looseleaf,updated 2003, p. 8-2) says “Interim custody orders are intended to pro-vide a short-term solution to child care until a court can conduct an in-depth investigation into the best interests of a child”.

23 The purpose of an interim custody order is to give one or both of theparents the right and duty to care for the child until the permanent ordercan be made. The focus of the court at this stage is on the short-termneeds of the children. “As a result, interim orders usually reinforce thestatus quo in an attempt to reflect on the best interests of the child.”(James v. Ross, 2003 SKQB 487, 240 Sask. R. 72 (Sask. Q.B.) at para. 8;Cox v. Wieclawski, 2010 SKQB 56, 349 Sask. R. 306 (Sask. Q.B.) atpara. 9).

24 In considering an interim application, James McLeod, in his bookChild Custody, Law and Practice, supra, suggests the following ques-tions are appropriately posed:

(a) Where and with whom is the child residing at the time ofthe interim hearing?

(b) Where and with whom had the child been residing in theimmediate past?

(c) If there has been a change in the child’s residence or pri-mary caregiver in the recent past, why was the changemade and who participated in the decision?


(d) Are the child’s current living arrangements suitable for thechild, taking into consideration the short-term needs of thechild and the temporary nature of the order?

(e) Is the current caregiver a suitable role model and able tomeet the child’s needs?

(f) Are there any problems with the child’s current parent orliving arrangements?

(g) Is there any reason to change the child’s current parentingor living arrangements?

25 This brings me to consideration of the current status quo. At the pre-sent time, the three children reside solely with Stephanie and have doneso since mid-April 2011. Stanley’s parenting time has been limited toalternating weekends with visits during the week. According to Stanley,this arrangement was unilaterally imposed by Stephanie. He had wanteda shared parenting arrangement from the start.

26 I am satisfied from the evidence that both parties parented the chil-dren in the years leading up to their separation last spring. They are atodds as to the degree to which each parented and who was the “primaryparent”, however, that is not something I can determine at an interimstage. Admittedly Stanley has been less involved since April but that wasnot of his doing. According to Stanley, CFB rules mandated his depar-ture from their military residence and Stephanie was not amenable to ashared custody arrangement.

27 There is no suggestion the children are not doing well under the careof the mother or that it is not a stable, loving relationship. Neither, how-ever, is it suggested that their relationship with their father is a poor oneor, for that matter, anything less than a loving, stable relationship. Ste-phanie raises no issues in this regard.

28 With regard to their respective living arrangements, I find Stephanie’sresidence at CFB suitable to their needs. For his part, Stanley recognizesthat his current living accommodations are too small and unsuitable forlong term parenting. A subsidized three bedroom house will be madeavailable to him if he has his children at least 50 % of the time.

29 Stanley’s lack of a vehicle was advanced as an impediment to parent-ing. That complaint, in my opinion, is disingenuous on Stephanie’s partas the parties’ only have one vehicle, which Stephanie retained. Her ob-jection on this ground, therefore, hardly seems fair. In any event Stanleyintends to purchase a vehicle once property division is finalized and in


the interim, I see no reason why the parties cannot strike an appropriateaccommodation, vis a vis the vehicle, based on when they parent the chil-dren, failing which Stanley can apply to the court for an appropriateorder.

30 Income disparity is also advanced by Stephanie. Stanley maintains hispresent level of income is sufficient for their needs, with disparity poten-tially adjusted through child support. (No such application is before meat the present time.) In any event, and as previously noted, the focus atthe interim stage is on preservation of the status quo. I find that Stanley’sfinancial situation, although not optimal, is not a deterrent to his abilitiesto parent. Stephanie’s argument in this regard is better placed at trial.

31 Much was made about Stanley’s inability to assist the children withtheir education or to foster the French language and culture in the home.Respondent counsel relies upon the recent decision of this Court in A.(R.) v. L. (S.), 2011 SKQB 259 (Sask. Q.B.), where language and culturalheritage was a factor.

32 There is little question Stanley’s lack of French limits his ability toassist the children with their homework. Stanley answers this concern bypointing to the assistance offered by the French school system. As heputs it, he is not the only unilingual parent at the school and this short-coming has been recognized and addressed by the school in the form ofeducational assistance. In any event, this argument is but one factor usedto assess the best interests of the children. With regard to the decision inA. (R.) v. L. (S.), I would simply observe that language did not appear tobe a prominent factor in the Court’s analysis.

33 The parties are at odds on whether Stanley’s mental health issues im-pact his ability to parent the children. Neither party filed independentmedical evidence, therefore I am unable to form a conclusion on the ba-sis of conflicting affidavits. In any event, I note this issue did not appearto be a concern for Stephanie when Stanley had the children in periods ofher absence.

34 Stephanie also seeks an order that the children reside in her homefrom October 17 until November 25 under the care of her mother. WhileStanley does not oppose fostering a full and loving relationship betweenthe children and their maternal grandparents, he takes issue with thisform of relief when he is otherwise able and willing to care for the chil-dren during Stephanie’s absence.

35 The Saskatchewan Court of Appeal, in Hayes v. Moyer, 2011 SKCA56, [2011] S.J. No. 311 (Sask. C.A.), considered an appeal brought by


the mother from an interim order granting paternal grandparents signifi-cant access to the mother’s four children. The Court of Appeal over-turned the interim decision for failing to give effect to parental rightsover those of grandparents. Furthermore, it bears noting that in the caseof grandparents, there is no presumption that access is in the best inter-ests of a child (Chapman v. Chapman (2001), 201 D.L.R. (4th) 443,[2001] O.J. No. 705 (Ont. C.A.); Tucker v. Lester, 2002 SKQB 225, 220Sask. R. 309 (Sask. Q.B.))

36 Admittedly the maternal grandparents are not a party to the motion asthey were in Hayes, nonetheless the underlying principle is simply thatparenting time should accrue to a capable and loving parent over that of agrandparent unless it can be shown not to be in the best interests of thechildren.

37 Having considered the whole of the evidence, and in particular thefact Stanley has actively parented the children in the recent past, I findthat it is in their best interest to continue that arrangement by making aninterim order of shared parenting. The parties shall therefore have jointlegal custody of the children on a shared parenting, week on/week offbasis except for the period September 28th until December 16th whenStanley shall parent the children in Stephanie’s absence. If Stephanie re-turns to Moose Jaw during a break in her training, she shall be entitled toparent the children during that break. Stephanie shall have parenting timewith the children over the Christmas holidays from December 19, 2011until January 2, 2012. The parties shall share parenting time on all otherholidays. If they are unable to agree on specific times, they may bringthis matter back before me.

38 An order shall also issue requiring Stephanie to give Stanley 30 daysnotice of any transfer or move out of Moose Jaw and to provide her newaddress and telephone number. To be clear, however, nothing in this or-der gives either party authorization to move the children out of MooseJaw.

39 Given the urgency attached to Stephanie’s possible re-assignment,this matter should proceed to pre-trial at the earliest opportunity uponStephanie’s return from training. The Local Registrar is directed to set apre-trial date in consultation with legal counsel.

40 There is one final matter to address. When this matter was heard inChambers, respondent counsel sought a ruling under Rule 603 of The


Queen’s Bench Rules with regard to portions of Stanley’s affidavit. Asno notice of objection is on the court file, no ruling can be made.


Oakes v. Oakes 431

[Indexed as: Oakes v. Oakes]

Kelly Gordon Oakes (Plaintiff / Applicant) and SandraCharmaine Oakes (Defendant / Respondent)


Docket: Edmonton 4803-149132

2011 ABQB 418

J.B. Veit J.



Family law –––– Division of family property — Practice and procedure —General principles –––– Parties married in 1990, had two children, and ceasedcohabitation in 2008 — Husband filed claim for divorce judgment and distribu-tion of matrimonial property in 2009 — Wife filed counterclaim for ongoing andretroactive spousal support and child support — Husband brought motion for or-der to sever corollary relief and division of matrimonial property claims fromclaim for divorce judgment — Motion dismissed — Husband failed to provideevidence in support of his contention that wife would experience no prejudice ifhis request were granted — Husband had not provided current financial disclo-sure relating to income and pension — Granting of order requested would notachieve desired result of moving matter along — Husband’s desire to acceleratepace of litigation would be better served by bringing application under R. 4.10of Alberta Rules of Court for timetable — Husband failed to show any publicpolicy need to obtain divorce judgment.

Civil practice and procedure –––– Pre-trial procedures — Severance — Ofissues –––– Parties married in 1990, had two children, and ceased cohabitation in2008 — Husband filed claim for divorce judgment and distribution of matrimo-nial property in 2009 — Wife filed counterclaim for ongoing and retroactivespousal support and child support — Husband brought motion for order to severcorollary relief and division of matrimonial property claims from claim for di-vorce judgment — Motion dismissed — Husband failed to provide evidence insupport of his contention that wife would experience no prejudice if his requestwere granted — Husband had not provided current financial disclosure relatingto income and pension — Granting of order requested would not achieve desiredresult of moving matter along — Husband’s desire to accelerate pace of litiga-tion would be better served by bringing application under R. 4.10 of AlbertaRules of Court for timetable — Husband failed to show any public policy needto obtain divorce judgment.


Cases considered by J.B. Veit J.:

Miles v. Miles (2004), 2004 ABCA 361, 2004 CarswellAlta 1493, [2004] A.J.No. 1271 (Alta. C.A.) — followed

Rules considered:

Alberta Rules of Court, Alta. Reg. 124/2010Generally — referred toR. 4.10 — consideredR. 8.5 — considered

Forms considered:

Alberta Rules of Court, Alta. Reg. 124/2010Sched. A, Form 38 — referred to

Alberta Rules of Court, Alta. Reg. 390/68R. 236(3) — referred to



Generally — referred to

MOTION by husband for order to sever corollary relief and division of matri-monial property claims from claim for divorce judgment.

Hu Eliot Young, for Applicant, Mr. OakesEleanor K. Boddy, Q.C., for Respondent, Ms. Oakes

J.B. Veit J.:

Summary1 Alleging that the defendant, Ms. Oakes, has no incentive to “move

this matter along”, Mr. Oakes asks the court to sever corollary relief anddivision of matrimonial property claims from the claim for a divorcejudgment which he filed in 2009. He states that there is “more than ade-quate security by reason of the equity in four properties” owned jointlyby the parties to offset Ms. Oakes’ child and spousal support and matri-monial property claims. Ms. Oakes asserts that one of her matrimonialproperty claims relates to Mr. Oakes’ pension; she states that she will beprejudiced if a divorce is granted before the settlement of the matrimo-nial property claim.

2 The application is denied.

Oakes v. Oakes J.B. Veit J. 433

3 Mr. Oakes has not provided any evidence in support of his contentionthat Ms. Oakes will suffer no prejudice if his request were granted. In-deed, Ms. Oakes asserts, and Mr. Oakes does not deny in his reply affi-davit, that Mr. Oakes has not even provided current financial disclosurerelating to income and pension.

4 Moreover, although a plaintiff is entitled, indeed, encouraged, by theRules of Court to move litigation along at a reasonable pace, the grantingof the order requested will not tend to achieve that result. Mr. Oakes hasnot shown any public policy need to obtain a divorce judgment, and hiswish to accelerate the pace of litigation would be better served by bring-ing an application under Rule 4.10 for a timetable of things to do to getthe matter to trial, or by an application under Rule 8.5 and Form 38,which is presumably the equivalent to the former R. 236(3).

Cases and authority cited5 By the respondent: Miles v. Miles, 2004 ABCA 361 (Alta. C.A.)

1. Background6 The parties were married in 1990 and ceased cohabiting in 2008; they

are the parents of two children. Mr. Oakes filed a Statement of Claim forDivorce and Distribution of Matrimonial Property in March 2009.

7 Ms. Oakes filed a counterclaim in which she claimed ongoing andretroactive spousal support.

8 Although the parties agree that child support should be paid pursuantto the Federal Child Support Guidelines, there is a dispute between themabout the living arrangements of the younger child.

9 As I understand it, Mr. Oakes is not currently paying spousal support.10 One of the matrimonial property issues relates to Ms. Oakes’ claim to

Mr. Oakes’ pension plan.11 Ms. Oakes issued a Notice to Disclose relating to financial matters in

June, 2009. She asserts in an affidavit filed in relation to this applicationthat she has not received updated financial information from Mr. Oakessince 2009 and that, in particular, she is not aware of his current incomenor of his current pension entitlement.

12 Mr. Oakes asserts, in a reply affidavit filed in support of his positionon this application, that Ms. Oakes has not done any Questioning of him.He also states that his pension plan administrator assures him that hispension entitlement has been “flagged” so that he would not be able to


seek a payout or division of his pension without settlement of the matri-monial property claim. In the same affidavit, he swears that “There ismore than adequate security by reason of the equity in the four propertiesto offset any spousal support or child support or pension divisionshortfall”. However, Mr. Oakes does not provide any calculation, muchless evidence, in support of his assertion. Nor does he refute the state-ment made by Ms. Oakes about his failure to keep his financial disclo-sure evergreen.

13 At the hearing, Ms. Oakes offered some deadlines to complete somesteps to getting the matter ready for trial.

2. General principle relating to severance14 As our Court of Appeal stated in Miles, the test for severance is “what

is fair in the circumstances”.

3. What is fair in the circumstances here?15 Mr. Oakes has not established that it would be fair to grant severance

in the circumstances here.16 First, his claim that Ms. Oakes will not be prejudiced by severance is

not supported by any evidence whatever. Moreover, Mr. Oakes appearsto be in breach of his obligation to keep his financial disclosure ever-green until the proceedings have been disposed of. In those circum-stances, there is no basis for determining that Ms. Oakes will suffer noprejudice.

17 In that context, the information provided by Mr. Oakes about the“flagging” of his pension does not answer Ms. Oakes’ claim that divorcewill end entitlement; it merely addresses any concern that she may have,although she did not express any such concern, about enforcement ofentitlement.

18 Second, Mr. Oakes has not proved that there is a public policy reasonwhy he should get a divorce separately from the other claims in thelitigation.

19 Third, the remedy sought by Mr. Oakes for the mischief about whichhe has expressed concern, which is that Ms. Oakes is dragging her feetover the resolution of the parties’ various disputes, would not be effec-tive. Given the amount of time which has elapsed since the separation ofthe parties, I entirely agree that the issues do not appear so complex as toexplain the delay in the disposition of the dispute. However, Mr. Oakeshas more obviously effective case management tools than severance at

Oakes v. Oakes J.B. Veit J. 435

his disposal. An application under Rule 4.10 or an application under Rule8.5 and Form 38 come to mind. Indeed, although Ms. Oakes did, at thehearing, offer to complete some steps by a specified time line, I declineto include that offer in an order because it would be far more appropriateto have the comprehensive determination of pre-trial procedure, includ-ing the requisite dispute resolution meeting, contemplated by Rule 4.10than to have a piecemeal approach to the pace of litigation.

4. Who is responsible for drafting the order that results from thisdecision?

20 Ms. Oakes has been successful in resisting Mr. Oakes’ application forseverance; therefore, she will have the responsibility of preparing the re-sulting order.

5. Costs21 If the parties are not agreed on costs, I may be spoken to within 30

days of the release of this decision.

Motion dismissed.


[Indexed as: Hajkova v. Romany]

Michaela Hajkova (Applicant) and Wayne Michael Romany(Respondent)


Docket: FS-93-09

2011 ONSC 2850

P.B. Hambly J.

Heard: February 8-11; April 26, 28; May 3, 2011

Judgment: May 13, 2011*

Family law –––– Custody and access — Joint custody — Primary residenceof child — Miscellaneous –––– Parties commenced living together in 1996, andseparated several years ago — Parties had two children, C, born February 1,1997, and T, born March 15, 2002 — Despite high conflict, parties continued tolive separate and apart in same residence with their children — Mother workedas personal support worker, but was unable to return to full-time employmentafter sustaining back injury in 2007 — Father had disc jockey business —Mother’s claims for joint custody, primary residence of children, and final deci-sion-making authority, as well as father’s claim for custody, proceeded totrial — Parties were awarded joint custody of children — Mother was awardedprimary residence of children — Mother had been primary caregiver of childrensince their birth — Father’s allegations that mother used illicit drugs were un-substantiated — Evidence was only consistent with strong bonding betweenmother and children — Mother was competent and loving parent — If primaryresidence of children was with their father, he would have attempted to under-mine mother’s relationship with them — Although parties were incompatiblewith each other, there was no evidence of conflict over important decisions inrelation to their children.

Family law –––– Custody and access — Joint custody — Factors to be con-sidered — Previous primary caregiving.

Cases considered by P.B. Hambly J.:

Andrade v. Kennelly (2006), 2006 CarswellOnt 3762, 33 R.F.L. (6th) 125,[2006] O.J. No. 2457 (Ont. S.C.J.) — considered

*Additional reasons at Hajkova v. Romany (2011), 2011 CarswellOnt 5382,2011 ONSC 3358 (Ont. S.C.J.).

Hajkova v. Romany 437

Andrade v. Kennelly (2007), 2007 CarswellOnt 8271, 2007 ONCA 898, 46R.F.L. (6th) 235, [2007] O.J. No. 5004 (Ont. C.A.) — considered

Brook v. Brook (2006), 2006 CarswellOnt 2514, [2006] O.J. No. 1514 (Ont.S.C.J.) — considered

Kaemmle v. Jewson (1993), 1993 CarswellOnt 364, 50 R.F.L. (3d) 70, [1993]O.J. No. 2597 (Ont. Gen. Div.) — considered

Kruger v. Kruger (1979), 25 O.R. (2d) 673, 1979 CarswellOnt 299, 11 R.F.L.(2d) 52, 2 Fam. L. Rev. 197, 104 D.L.R. (3d) 481, [1979] O.J. No. 4343(Ont. C.A.) — considered

Mol v. Mol (1997), 1997 CarswellOnt 3693, 40 O.T.C. 1, [1997] O.J. No. 4060(Ont. Gen. Div.) — considered

Mudie v. Post (1998), 1998 CarswellOnt 3128, 72 O.T.C. 29, 40 R.F.L. (4th)151, [1998] O.J. No. 3180 (Ont. Gen. Div.) — considered

Murdoch v. Murdoch (1973), [1974] 1 W.W.R. 361, 1973 CarswellAlta 119, 13R.F.L. 185, 41 D.L.R. (3d) 367, [1975] 1 S.C.R. 423, 1973 CarswellAlta 156(S.C.C.) — considered

Ursic v. Ursic (2006), 2006 CarswellOnt 3335, 32 R.F.L. (6th) 23, [2006] O.J.No. 2178 (Ont. C.A.) — considered


Children’s Law Reform Act, R.S.O. 1990, c. C.12s. 20(1) — considereds. 20(2) — considereds. 20(3) — considereds. 20(4) — considereds. 20(5) — considereds. 24(1) — considereds. 24(2) — considered



Generally — referred tos. 7 — referred to

TRIAL of mother’s claims for joint custody, primary residence of children, andfinal decision-making authority, as well as father’s claim for custody.

Phaedra Klodner, for ApplicantBrigitte Gratl, for Respondent


P.B. Hambly J.:

1 Michaela Hajkova (“Michaela”) is 43. Wayne Romany (“Wayne”) is44. They commenced living together in 1996. They never married. Theyhave been living separate and apart in the same residence for severalyears. They live with their two children, born of their relationship,namely, Cora Romany, born February 1, 1997, age 14 and Tristan Rom-any, born March 15, 2002, age 9. Michaela claims joint custody, primaryresidence of the children and final decision-making authority. Wayneclaims custody. His position is that Michaela should move out and leavethe children with him. In the trial, Michaela testified herself and calledtwo CAS workers, Marta Celejewska and Patti Moses; a CAS supervisor,Jim Woodstock and Dr. Pannozzo. Wayne testified himself and called hisfather, Leslie Romany; his sister, Lianne Stemmler; his brother, BrianRomany and his friends, Merwin Keyes, Brian Bishop and MichaelMacNeil.

The Evidence2 The parties reside with their children at 24 Benesfort Crescent, in the

City of Kitchener. It is a two-story house. Michaela and the children oc-cupy the main floor and the upstairs bedrooms. Wayne confines himselfto the basement where he has a bedroom. Wayne testified that this hasbeen the arrangement for 13 years, which would predate the parties’purchase of the house. I expect that he meant from a date early after thepurchase of the house. Michaela said that Wayne moved to the basementin 2005. In any event, the parties have lived separate and apart in thesame residence for some years. Their sexual relationship terminated longago.

3 The history of the ownership of the house is one of the sources ofconflict between the parties. Lianne Stemmler stated that she and herhusband purchased the house in 1996. They sold it to Wayne andMichaela in 1999. Leslie Romany and Glenda Romany, the wife of Les-lie and the mother of Wayne, were put on the deed in order that Wayneand Michaela could get a mortgage. Lianne stated that she and her hus-band sold the house to Wayne and Michaela for $1,000 less than whatthey paid for the house. This was notwithstanding that they had reno-vated the basement at a cost to them of $10,000. There was conflict be-tween Wayne and Michaela over Wayne’s parents being on the deed.Michaela moved out of the house with Cora briefly in 2001 over thisissue. Wayne and Michaela were able to renegotiate the mortgage and

Hajkova v. Romany P.B. Hambly J. 439

have Wayne’s parents removed from title. Michaela and Cora movedback into the house. At the outset of the trial, Michaela sought an orderthat the house be sold and the net proceeds divided. On February 11th,which was the third day of the trial, the parties agreed that Wayne wouldpurchase Michaela’s interest in the home for $25,000. When the trial re-sumed on April 26, 2011, the money had been paid and the property con-veyed to Wayne. The parties and their children continue to live in thehouse.

4 Michaela worked as a supervisor with Luna Janitorial Services be-tween 1996 and 2000. She took training as a personal support workerwith a view to eventually becoming a nurse. She obtained work in thatfield with ParaMed and Columbia Forest Long-Term Care Center. OnNovember 4, 2007 she sustained an injury to her back at her workplace,while she was lifting a patient. She has not been able, as a result of thisinjury, to return to full-time employment. She receives a supplement toher income from Workers Compensation. She is presently working eitheron Friday and Monday or Saturday and Sunday from 2:00 p.m. to 8:00p.m. She has been placed on light duties, taking into account her backinjury.

5 Michaela testified that she has always been the primary caregiver ofthe children. She prepares their breakfast and gets them off to school inthe morning. Except for Friday and Monday when she is working, she isat home when they return from school. She leaves food prepared forthem on Fridays and Mondays, when she is working in the evening. Sheis home on these days by 8:15 p.m. This occurs only every second week.She also cares for the pets — two dogs, a bird and fish in a fishpond atthe back of the residence. Wayne conceded that Michaela has alwaysbeen the primary caregiver of the children. He states that she displacedhim. He mostly confines himself to the basement to maintain peace.

6 Dr. Pannozzo testified that Michaela suffers from chronic pain, as aresult of the injury to her back. He prescribes medication to control herpain. He sees her regularly to assess her condition and adjust her pre-scriptions, if this is appropriate. He prescribes Percocet, Codeine Continand Mobicox. The amount of drugs that he prescribes is moderate for hercondition. As a result of Wayne’s concerns Dr. Pannozzo had Michaelasubmit to a random urine drug screen on March 22, 2011. It showed noillicit drug use. Dr. Pannozzo testified that Michaela requires the drugs tocontrol her pain. The amount of drugs that he has prescribed to her hasdecreased over time. She is not addicted to the drugs. Dr. Pannozzo is


also the doctor for Cora and Tristan. He had no difficulty with the capac-ity of Michaela to parent the children.

7 CAS workers interviewed Michaela and the children several times asa result of her calling them regarding conflict with Wayne, or as a resultof the police notifying them after Michaela had called the police to thehouse, as a result of an altercation with Wayne. On January 10, 2005,Michaela called a crisis line of the CAS. She alleged that Wayne wasverbally abusing the children. An intake worker of the CAS interviewedMichaela on January 19, 2005. Michaela told the worker that she thoughtthat she had the situation under control, but that she would seek supportfrom the CAS if Wayne’s misconduct continued. The CAS did not pur-sue the matter further. On July 21, 2005, the police notified the CAS thatMichaela had stated to them that Wayne was pushing her around and thatthe children were upset. The police investigated and determined that bothparties were making allegations against the other. The police did not laycharges. Michaela reported that she was undecided about staying in therelationship with Wayne. She reported to the CAS worker that shewanted the children to have a relationship with their father, but she wasunhappy about her relationship with him. On October 17, 2006, Michaelacontacted the CAS. She alleged that Wayne had assaulted the children.The CAS interviewed Wayne. He provided an explanation. The CAS didnot take further action. Michaela contacted the CAS on October 11,2009. She expressed an intention to separate from Wayne. A CASworker interviewed Michaela on October 20, 2009. She stated thatWayne had assaulted her and threatened the children. She stated, whichshe repeated at trial, that Wayne had called her a lesbian, that she had aboyfriend, that she smoked weed and that she was addicted to her medi-cation which altered her mind, all in front of the children. A CAS workerinterviewed the children. They confirmed that their parents were quarrel-ing. They did not express any fear of their father. A CAS worker con-tacted Wayne by telephone and appointments were made for him to beinterviewed. Wayne cancelled the appointments and did not respond tofurther telephone messages from the CAS. Marta Celejweska and PattiMoses described Michaela as been totally cooperative. They both foundthe children to be reluctant to talk about their parents. They described thechildren as pleasant, friendly and delightful. Michaela commenced thisapplication on September 30, 2009. There was no evidence that the CASever contemplated protection proceedings.


8 In his report dated January 18, 2010 Mr. Woodstock stated the fol-lowing:

. . .

This agency is concerned about the safety and wellbeing of Tristen,Cora, and Michelle Hajkova if they are compelled to continue resid-ing in the same house as Wayne Romamy. It appears inevitable thatgiven the history of conflict that conflict will continue to occur andpossibly even escalate.

Mr. Romany has admitted to being physically aggressive with thechildren and their mother in the past. He has also admitted to callingthe children “assholes” when he is angry. Mr. Romany has madeconcerning comments that due to him making most of the familymoney; therefore Ms. Hajkova should “put out” sex for him. Mr.Romany states that he is taping Ms. Hajkova as well. Mr. Romanyalso discussed with the children a letter from the agency requestingto meet with him. It is concerning when adults discuss with childrenmatters about adult relationships and adult responsibilities. All ofthese behaviours raise concerns about Mr. Romany’s role as a parentand role model for Tristan and Cora.

Mr. Romany has declined to engage with this agency at this time.This agency has a program called “Caring Dads” which is designedto assist people with a history of concerning parenting like himself toengage with their children and the children’s mother in a healthiermanner. As well it appears that instead of trying to engage in prob-lem solving with Ms. Hajkova he chooses to pursue escalatedlitigation.

He confirmed this evidence in his testimony. Wayne, in his evidence, didnot deny the allegations made against him.

9 Wayne is very involved in the children’s extracurricular activities.Tristan is a good hockey player. He was recently selected to play on anAll-Star team. This requires some travelling and sometimes a stay over-night in a motel. Wayne accompanies Tristan. Michaela also takes aninterest in Tristan’s hockey. She attends the games. She will sit besideWayne to maintain a united front to the other parents. The children havealso been involved in soccer. Cora is involved in karate. I heard lessabout these activities than I did about Tristan’s hockey. However, it ismy understanding that both parents are supportive of their children inthese activities. Wayne’s friends, who have children of their own, con-firmed his involvement with the activities of the children.


10 Wayne confirmed in his evidence that he does not trust the CAS. Heremains convinced the mother is addicted to drugs, notwithstanding theevidence of Dr. Pannozzo. He is 60 to 70% confident that Michaela isable to care for the children during short-term access visits. He has noconfidence that she is capable of caring for the children on a long-termbasis.

11 Cora is in Grade 8. Her report cards were filed from Grades 4 to 7.Tristan is in Grade 3. His report cards were filed for Grades 1 and 2. Thechildren appear to be doing satisfactory work in school. I heard no evi-dence of any behavioral problems.

12 Wayne’s income for 2010 was $45,000. He did not file a current fi-nancial statement at the trial. He provided one pursuant to my directionafter the trial. It shows an annual income of $49,063. Guideline childsupport on this income is $738 per month. Wayne has a disc jockey busi-ness. He stated that it did not produce any significant income. Michaelais prepared to accept this for the purpose of calculating child support. Inher financial statement, sworn January 31, 2011, Michaela shows an an-nual income of $21,696. I understood her lawyer to concede that she hada capacity to produce income of about $25,000. If she is granted primaryresidence of the children, she will also be entitled to the child tax credit,which for her would be $750 per month. Michaela and the children arecovered presently by Wayne’s health benefit plan at his workplace.Michaela does not seek spousal support. She does seek to continue to becovered by Wayne’s health benefit plan. In his recently provided finan-cial statement, Wayne shows life insurance of $300,000, of which thechildren are the beneficiaries.

13 Leslie Romany is 74. He worked doing heavy equipment repairs formany years. He retired at age 70. He is recovering from open heart sur-gery. He is not yet able to again drive a motor vehicle. He has a seriousproblem with a knee that requires him to use a walker. His wife, GlendaRomany, did not testify. He said that she worked at the Prudential Insur-ance Company for many years. She is retired. She suffers from lupus.

14 Leslie Romany testified that there are good relations among his threechildren and their families and between them and him and his wife.Wayne frequently comes to their house and sometimes stays overnight.He and Glenda have been very supportive of Cory and Tristan and arevery interested in their welfare. Leslie Romany attends Tristan’s hockeygames. He has contributed financially to the household of Wayne andMichaela for many years. He testified that the “pilot light” in the rela-


tionship between Wayne and Michaela went out shortly after the birth ofTristan. He stated that if Wayne was granted custody of the children thathe and Glenda would be prepared to attend at Wayne’s home to be therefor the children when they returned from school. They would provide anevening meal for them and would supervise them until Wayne camehome from work sometime after 10:00 p.m.

15 Lianne Stemmler gave evidence that she believed that Michaelatrapped Wayne into having children. Michaela testified in reply that shebecame pregnant with Cora while she was taking birth control pills andthat Tristan was a planned pregnancy. She stated that at this time she andWayne had plans to be married.

The Law16 Children’s Law Reform Act

Father and mother entitled to custody

20. — (1) Except as otherwise provided in this Part, the father andthe mother of a child are equally entitled to custody of thechild.

Rights and responsibilities

(2) A person entitled to custody of a child has the rights and re-sponsibilities of a parent in respect of the person of the childand must exercise those rights and responsibilities in the bestinterests of the child.

Authority to act

(3) Where more than one person is entitled to custody of a child,any one of them may exercise the rights and accept the re-sponsibilities of a parent on behalf of them in respect of thechild.

Where parents separate

(4) Where the parents of a child live separate and apart and thechild lives with one of them with the consent, implied consentor acquiescence of the other of them, the right of the other toexercise the entitlement of custody and the incidents of cus-tody, but not the entitlement to access, is suspended until aseparation agreement or order otherwise provides.

Access

(5) The entitlement to access to a child includes the right to visitwith and be visited by the child and the same right as a parent


to make inquiries and to be given information as to the health,education and welfare of the child.

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of cus-tody of or access to a child shall be determined on the basis ofthe best interests of the child, in accordance with subsections(2), (3) and (4).

Best interests of child

(2) The court shall consider all the child’s needs and circum-stances, including,

(a) the love, affection and emotional ties between thechild and,

(i) each person entitled to or claiming custody ofor access to the child,

(b) the child’s views and preferences, if they can reasona-bly be ascertained;

(c) the length of time the child has lived in a stable homeenvironment;

(d) the ability and willingness of each person applying forcustody of the child to provide the child with guidanceand education, the necessaries of life and any specialneeds of the child;

(e) the plan proposed by each person applying for custodyof or access to the child for the child’s care andupbringing;

(f) the permanence and stability of the family unit withwhich it is proposed that the child will live;

(g) the ability of each person applying for custody of oraccess to the child to act as a parent; and

(h) the relationship by blood or through an adoption orderbetween the child and each person who is a party tothe application.

Case Law17 The courts in recent years have found that in cases where there is

conflict between the parents, but there is a degree of cooperation betweenthem in the care of the children, that it may be in the best interests of thechildren that they have joint custody of the children. An order may be putin place for parallel parenting.


18 In Mudie v. Post, [1998] O.J. No. 3180 (Ont. Gen. Div.), JusticeSalhany built upon his reasoning in Kaemmle v. Jewson, [1993] O.J. No.2597 (Ont. Gen. Div.) in holding that the parents of a child may begranted joint legal custody of the child and that each party may begranted legal custody while the child is in that parent’s physical custody.He stated the following:

41 In Kaemmle v. Jewson (1993), 50 R.F.L. (3d) 70, I expressed theview that there was no legal reason why “joint legal custody” cannotbe separated from “joint physical custody”. I said there, at p. 73,

Traditionally, the courts have considered that a joint cus-tody order must involve mutual and overlapping rightsand duties by the joint custodians. I have some difficultyin understanding why that approach has been been [sic]considered to be essential to a joint custody regime. Thereare two aspects to a joint custody order - one is legal cus-tody, the other is physical custody. Although the courtshave recognized that there can be divided custody be-tween the parents when determining the aspect of physicalcustody, there has persisted the view that legal custodymust be undivided in a joint custody order. Surely, theconcept of joint custody can be a shifting one. When thechild is under the care and control of a particular parentpursuant to a joint custody order, why can not that parenthave exclusive legal as well as physical custody, care andcontrol of that child for the duration of the period speci-fied in the order?

Professor Folberg notes in her paper, supra, that legislation in Cali-fornia has recognized and made provision for the distinction.

42 One of the main arguments advanced by those who believe thatlegal custody should not be separated from physical custody is that itdoes not work. My experience, after trying custody cases for almost20 years, is that it does work and works far better to reduce post-trialapplications than a sole custody order. Indeed, the frequent applica-tions that are brought in this court in this jurisdiction after a sole cus-tody order has been made to enforce an access order has led me tothe conclusion that joint custody orders are less subject to ongoinglitigation than sole custody orders.

43 I have found that the most insidious impediment to the coopera-tion of equally competent parents is the question of “who should bein control”. Far too often parents are prepared to “battle to the end”and to endure the strain and expense of a custody battle, without rec-ognizing the harmful effects on the child, so that they can have the


“last word”. This attitude has prevailed even where one parent hasrecognized that the other parent has a valuable contribution to maketo the life of the child. It has been my experience that an order forjoint legal custody, with clearly defined times for physical custody,has proved to be more effective in settling the dust of battle. Clearlydefined periods of legal and physical custody declare the limits ofcontrol which each parent will have over the child. More importantly,they ensure that the child will have unimpeded access to the parentwho has legal custody during that defined period.

44 As I said in Kaemmle v. Jewson,

A joint custody order, on the other hand, has a psycholog-ical advantage of allowing parents to feel that they areparticipating equally in the life of their child and have theright to make some important decisions affecting theirchild’s future. Joint custodial parents may be prepared toaccept that they cannot determine what school the childwill attend if they know that they can provide religiousinstruction during their care and control period, or enjoysuch other rights as being able to obtain school and medi-cal records without the frustration of having to go througha sole custodial parent. Thus, communication betweenparents does not become a necessary concomitant to ajoint custody regime since decisions on important issues,such as schooling, religion, medical treatment, etc., willdevolve upon that parent who has specified care and con-trol of the child when he or she is attending school, goingto church, and visiting the doctor.

45 Since writing that decision, I have not changed my mind. Ratherthe cases that I have heard since that decision only confirm the viewwhich I expressed at the time.

He made an order that the parties have joint legal custody of their twosons, ages 7 and 1, with each having physical custody at stated times.

19 In Ursic v. Ursic, [2006] O.J. No. 2178 (Ont. C.A.), the Court of Ap-peal, in the judgment of Justice Laskin, upheld the decision of JusticeDonnelly that the parents of a boy who was 4 1/2 years old when the casecame before the Court of Appeal should have “joint custody in the paral-lel parenting mode” (para. 4). Justice Laskin stated the following:

25 The appellant’s third submission is that a joint custody order wasnot appropriate because the parties were continually in conflict overhow best to raise Jacob and could neither co-operate nor communi-cate with each other on his upbringing. Courts have generally been


reluctant to order joint custody where parents are unwilling to setaside their differences and work together to raise their child or chil-dren. See for example the reasons of Weiler J.A. in Kaplanis v. Ka-planis (2005), 10 R.F.L. (6th) 373 (Ont. C.A.). Here, however, de-spite the conflict between them, the parties, to their credit, havelargely co-operated on major decisions affecting Jacob. The issue ofJacob’s schooling, to which I will return later in these reasons, is theexception.

26 Also, importantly, the trial judge did not merely order joint cus-tody. He included with it a parallel parenting order. Many trial courtshave recognized that joint custody under a parallel parenting regimemay be suitable where both parents love the child and should play anactive role in the child’s life, yet have difficulty communicating orreaching a consensus on the child’s upbringing. See T.J.M. v. P.G.M.(2002), 25 R.F.L. (5th) 78 (Ont. Sup. Ct. J.), and Mol v. Mol, [1997]O.J. No. 4060 (Sup. Ct. J.). The trial judge viewed parallel parentingto be suitable in this case, and I am not persuaded that he erred inordering it.

20 In Andrade v. Kennelly, [2007] O.J. No. 5004 (Ont. C.A.), the Courtof Appeal upheld the decision of Justice Harvison Young reported at[2006] O.J. No. 2457 (Ont. S.C.J.) in ordering joint custody of three chil-dren, ages 11, 9 and 5 in a parallel parenting regime.1 Regarding theissues, she stated the following:

1 The applicant in this matter is Dr. Johanne Kennelly and the re-spondent is Mr. C. Eric Andrade. The issues in this trial include cus-

1She made the following order:

Accordingly, the custody order will be as follows:

(1) The parents have joint custody of the children;

(2) The children will reside with their father in Toronto when themother is in Ottawa during the week, from Monday to Thurs-day evening or Friday evening, as the case may be;

(3) The children will reside with the mother on weekends fromThursday or Friday evening as the case may be depending onher availability;

(4) The children will remain, insofar as is practicable, in the sameschools and extracurricular activities during the 2006-07 aca-demic year; or in the schools as planned prior to March, 2006.

(5) The parents will try to agree on major decisions concerningthe children.


tody and access to the three children of their marriage, Isabella, who

(6) If the parents are unable to agree on major decisions relatingto the children’s medical care and treatment, the father’s deci-sion will prevail;

(7) If the parents are unable to agree on major decisions relatingto their education, the mother’s decision will prevail, so longas the children remain in their present neighborhood;

(8) The children will spend as much vacation time with themother as she has available during the summer of 2006.

(9) Neither party will arrange activities for the children duringtimes when they are with the other parent without that par-ent’s consent prior to the making of the arrangement;

(10) If the mother wishes, she may take the children to Ottawaonce per month at her option of the mother, so long as sheadvises the father at least one month in advance as to the par-ticular weekend.

(11) After the passage of 6 months, the father has the option tokeep the children for one weekend per month, so long as headvises the mother of this at least one month in advance as tothe particular weekend;

(12) Commencing in 2007, the father shall be entitled to 3 weeksof vacation with the children, two weeks of which shall beconsecutive; the mother shall be entitled to as much vacationas she is able to take, subject to the father’s vacation time.

(13) The children shall spend March break with the mother fromthe evening of the last day of school until the evening beforethe recommencement of school;

(14) The mother may take the children to New Zealand for up to 4weeks every two years so long as the children miss no morethan one week of school;

(15) Whenever the mother is away from Toronto for twoovernights or more without the children, the children shallstay with the father; even if this falls on what would other-wise be time that they would normally be with him;

(16) f the father is out of town for more than two nights at a timeand the mother is in Toronto, the children shall, at her option,stay with her;

(17) The father is to have the children for 5 days over Christmas2006, from 9 p.m. Christmas Eve to until 9 p.m. on December


28, 2006; to alternate in following years between the parentsunless they agree otherwise;

(18) Both parties to provide necessary authorizations to allowtravel outside the country with the children, provided thetravel is reasonable for the children and not to any destinationthat may not be safe for them;

(19) Both parents to cooperate with respect to Canadian passportrenewals;

(20) Each parent is to keep the other advised of all medical inter-ventions, school events and extracurricular activities;

(21) Each parent is to ensure that the other receives full and com-plete information about the children, their schooling, theirmedical interventions and their welfare. Both parents are toexecute consents or authorizations to all persons, includingteachers, doctors, dentists and others involved with the chil-dren to speak fully and openly with both parents;

(22) There shall be no make up time for missed visits;

(23) If a child is sick, the access is to proceed nonetheless unlessthe child is too sick to visit;

(24) If the parents agree, the children may occasionally go for in-dividual visits to allow for one-on-one time.

(25) The parents are to communicate about the children through acommunication book that focuses on the children’s issuesonly, or by email. They are not to discuss any parenting is-sues, including scheduling, in front of the children.

(26) Both parents are to provide the other with their current ad-dresses and a phone number where they can be reached at alltimes.

(27) Both parents are to advise the other if the children are otherthan in the mother’s home of the father’s home for more thanone night, and to provide the details of where the children are,as well as a phone number.

(28) Neither parent may object to the other’s plans with the chil-dren’s, but must respect each others ability to care for thechildren appropriately.

(29) Both parents are entitled to attend school events, parent-teacher meetings and other special events such as balletrecitals.


is now eleven, Olivia, who is now nine, and Imogen, who is nowalmost 5. There are also issues relating to Section 7 expenses. Thetrial lasted 12 days. Dr. Kennelly appeared on her own behalf al-though she had been represented earlier in the litigation and appar-ently had access to some legal advice during the trial. She is to becommended for her organization and ability to prepare her case. Dur-ing the trial, on May 2, 2006, I ordered that Dr. Kennelly take nosteps to move the children to Ottawa before judgment in the matter.

2 It is an understatement to say that this matter has been character-ized by high levels of acrimony. Since the petition was filed by Mr.Andrade in November of 2003, there have been fourteen court ap-pearances, most of which have related to access issues. Throughoutthis period, the children have been living with their mother, who re-fused to allow the father to exercise access to the children outside herhome without supervision from November 2003 until the summer of2005. Dr. Kennelly’s position was essentially that while the childrenlove and need their father, they are special needs children, who, sheclaims, are particularly vulnerable to the patterns of lies and deceit ofMr. Andrade.

21 In Mol v. Mol, [1997] O.J. No. 4060 (Ont. Gen. Div.), Justice Kruzickordered that the parents have joint custody of two girls ages 7 and 4, in aparallel parenting regime. He referred to the decision of the Court of Ap-peal in Kruger v. Kruger (1979), 11 R.F.L. (2d) 52 (Ont. C.A.), whereJustice Thorson for the majority stated the following:

30 To summarize the conclusions to which I have been led to thispoint, I am of the opinion that this Court in the present appeal, andindeed any Court that is considering the making of an award of jointcustody, should be guided by the following precepts: if the Court hasbefore it the right combination of thoughtful and mature parents whounderstand what is involved in such an arrangement and are willingto try it, the Court should feel encouraged to go ahead with it; but ifthey are not evidently willing, the Court should not seek to impose it

(30) The father is not to move out of the Toronto area without theconsent of the mother or a court order unless it is to Ottawa(and she remains living there);

(31) Disputes arising which are not resolved by the above are to bereferred to arbitration. If the parties are unable to agree on anarbitrator, they may apply to the court with up to 2 names ofappropriate persons who are able and willing to assume therole.


on them, because it is then not likely to work, and because the priceto be paid if it does not work is likely to be altogether too high towarrant taking the risk that is then present of trying it.

Justice Kruzick referred to the dissenting opinion of Justice Wilson.He stated the following:

21 In a strong dissent in Kruger v. Kruger and Baun (1979), 11R.F.L. (2d) 52 (Ont. C.A.), Wilson J.A. (as she then was) reviewedvarious forms of custody/access orders which might be characterizedas joint custody orders and said at p. 72:

The appropriate option in any given case will be the onewhich best serves the needs of the child or children. Ourcourts have traditionally awarded sole custody to one par-ent and access to the other ... however, custody may beawarded to one parent with care and control in the otherand access to the custodial parent: see Huber v. Huber(1975), 18 R.F.L. 378 (Sask. Q.B.). This form is some-times used where custody to the father seems to best servethe long-term interests of the child but its shorter term in-terests requires that it be with its mother because of itsage. Another option is an award of joint custody to theparents with care and control in one of them and access inthe other: see Parker v. Parker (1975), 20 R.F.L. 232(Man. C.A.); Field v. Field (1978), 6 R.F.L. (2d) 278(Ont. H.C.).

This type of order preserves the participation of both par-ents in the important decisions affecting the child. An-other type of order is the order for divided custody whereone parent has custody for some period of the year withaccess to the other during that period and the positions ofthe parents with respect to custody/access reversed for thebalance of the years: see Buchko v. Buchko (1973), 11R.F.L. 252 (Sask. Q.B.). This type of order is sometimesused where the parents are residing in differentjurisdictions.

These developments and the approach of the courts tocustody matters all reflect a new awareness that in themind of a child, authority and love are inter-related andthat the transformation of the mother or father into a visi-tor’ is a traumatic experience for the child frequently at-tended by feelings of rejection and guilt. In many cases itis wholly unnecessary ... It is in this social media thatmore imaginative, and if I may say so, more humane cus-


tody orders find their place. And what if occasional resorthas to be made to the courts when the parents cannotagree on the major matter affecting the child? It seems tome to be a modest price to pay in order to preserve achild’s confidence and the love of his parents and with it,his own sense of security and self-esteem.

In my view, it is the responsibility of the court on a cus-tody matter to assess, preferably with professional assis-tance, the ability of the parents to co-operate in the up-bringing of their children and in the light of thatassessment, to choose from a range of options open to it,the one which will best serve the children’s short andlong-term interests. This is of paramount importance in acase where the trial judge finds that both parents exhibitsterling qualities and that the relationship between theparents and children discloses a high degree of love andaffection on both sides.

22 The view of the Ontario Court of Appeal in the Kruger decisionagainst extensive involvement of both parents has been accepted insome cases. However, there is significant support in the case law forthe granting of joint custodial orders. When it comes to custody, eachcase must be assessed on its own unique facts and circumstances. Inmy assessment of these parents, if the children’s best interests are tobe truly served, I must make an order of joint custody.

22 In Brook v. Brook, [2006] O.J. No. 1514 (Ont. S.C.J.), Justice Quinn,notwithstanding some misconduct on the part of the father, found onanalysis that this did not significantly impact on his ability to care for theparties’ four-year-old child. He ordered that the parties have jointcustody.

Justice Quinn stated the following:61 A non-custodial parent is frequently perceived in the com-munity as undeserving or unqualified to have custody of hisor her child; and this perception is not always accurate. Theresult is that, sadly, a great many non-custodial parents areunfairly seen as second-class parents. It is not in the best in-terests of a child to have one of his or her parents viewed inthis fashion.22 The interests of a child are better served byhaving two parents participate in making the important deci-sions in his or her life. Therefore, I begin with the rebuttablepresumption that an order for joint custody is best for a childand then I look for evidence to the contrary.23 This means thatthe initial burden of proof falls on the party opposing a joint


custody order to rebut the presumption. It may take very littleevidence to do so (sometimes a single troubling incident willsuffice). Once the presumption is rebutted, the burden shiftsto the parent seeking joint custody to prove that such an orderis in the best interests of the child.

Analysis23 The evidence of Lianne Stemmler that Michaela trapped Wayne into

having children is contrary to the evidence of Michaela that she con-ceived Cora when she was taking birth control pills and that Tristan wasa planned pregnancy. The relationship of Michaela and Wayne hasfailed. To try to assign blame for this failure is counterproductive. I ac-cept the evidence of Michaela. The concept of finding fault in family lawdisappeared some decades ago.

24 Lianne Stemmler’s evidence undoubtedly flows from a feeling in theRomany family that Michaela has made no financial contribution to thepurchase of the house and hence was not entitled to an interest in thehouse. This is a concept that is also no longer recognized in family law.The dissenting opinion of Justice Laskin (as he then was) in the decisionof the Supreme Court of Canada Murdoch v. Murdoch (1973), [1975] 1S.C.R. 423 (S.C.C.), that a wife’s contribution to the acquisition of fam-ily assets beyond a financial contribution entitled her to an interest inthese assets quickly became the law. Justice Laskin stated the following:

The legal proposition upon which the respondent husband rests isthat his wife’s work earned her nothing in a share of the assets in hisname when it had not been recognized by him in a way that woulddemand an apportionment, that is by proof of an agreement or at leastof a common intention that she should share in the acquisitions. Inmy view, this is to state too narrowly the law that should apply to thepresent case.

25 This concept is no longer challenged. Even Wayne does not disputethat Michaela has always been the primary caregiver of the children. Theparticulars of what the parties did with their earnings are not before me.Michaela’s earnings, although substantially less than those of Wayne,were still significant. Obviously she spent her earnings on family needs.That Michaela had an interest in 224 Benesfort was recognized by thesettlement that the parties achieved on the wife’s claim to an interest inthe house. This settlement was facilitated by a mid-trial settlement con-ference with an experienced trial judge. She was a joint owner of the


house. However, even if she had not been, she would have been entitledto an interest in the house.

26 Michaela has been the primary caregiver of the children since theirbirth. She continues to be their primary caregiver. Wayne states that herfunctioning is affected by her pain medication and the use of illicit drugs.He offers no examples of this. The evidence is to the contrary. He offersno particulars of his allegations that she uses illicit drugs. Dr. Pannozzowas of the opinion that the amount of prescription drugs that she wastaking was moderate and that she was not using illicit drugs. The CASand Dr. Pannozzo are of the view that Michaela is a competent mother.The evidence is only consistent with a strong bonding between Michaelaand the children. I find that Michaela is a competent and loving motherof her two children.

27 There is no question that Wayne has provided substantial financialsupport to the family. It is unfortunate that Wayne chose not to cooperatewith the CAS. This could only have improved the functioning of thefamily unit. Michaela has been firm in her position that, notwithstandingher dysfunctional relationship with Wayne, that it is in the best interestsof the children that they maintain a relationship with Wayne. On otherhand, Wayne is not supportive of the relationship between the childrenand Michaela. If primary residence of the children was with Wayne, I amconfident that he would attempt to undermine Michaela’s relationshipwith them.

28 Wayne seems to have said some things to the children that he shouldnot have said. However, experienced CAS workers who interviewed thechildren found that they did not fear their father. They said nothing nega-tive about him. Wayne and his immediate family are closely involved inthe lives of the children. The support that Wayne has from his family andfriends in the care of the children is important. These people are all re-sponsible and warm people. They are successful parents. They would notsupport Wayne if he did not have much to offer to his children.

29 Wayne’s plan to replace Michaela in the care of the children with hisparents is not a viable plan. His parents are in their mid-70s and theyboth have serious health problems. Also, the concept of replacing amother bonded to her children with the paternal grandparents is fraughtwith peril.

30 Michaela seeks joint custody. She seeks both primary residence andfinal decision-making authority with respect to the children. If I was toorder this, it would be called joint custody, but it would be in essence


custody. The parties are incompatible between each other. However,there is no evidence of conflict over important decisions that parentsmust make in the upbringing of their children — schools that they attend,religious upbringing or participation in extracurricular activities. Wayneought not to be assigned the role of an access parent. He has contributedtoo much to the lives of the children and he has too much more to con-tribute. In my view the appropriate order is joint custody, with a parallelparenting regime, with each party having custody when the children arewith that party. I refer again to the passage from the dissent of JusticeWilson in Kruger quoted above as follows:

And what if occasional resort has to be made to the courts when theparents cannot agree on the major matter affecting the child? It seemsto me to be a modest price to pay in order to preserve a child’s confi-dence and the love of his parents and with it, his own sense of secur-ity and self-esteem.

31 In my respectful view this reasoning applies directly to the facts ofthis case.

Disposition32 There will be an order as follows:

1. Wayne and Michaela shall have joint legal custody of thechildren.

2. The primary residence of the children shall be with the mother.

3. Michaela shall have custody of Cora and Tristan from Sunday at1:00 p.m. to Friday morning.

4. Wayne shall have custody of Cora and Tristan two consecutiveweekends out of every three consecutive weekends from Fridayafter school to Sunday at 1:00 p.m.

5. Michaela shall have custody of the children on the third consecu-tive weekend, after the two consecutive weekends when the fatherhas had custody of the children.

6. The father’s custody of the children shall commence immediatelyafter Michaela has established a new residence for herself and thechildren.

7. Michaela and Wayne shall each make the children available to theother to be transported to their extracurricular activities. If the par-ties cannot agree on the schedule of extracurricular activities, ei-ther may apply to the court, preferably before me if I am available,


to fix the times and the particulars of each providing the childrento the other.

8. Michaela and Wayne shall each make the children available to theother on Father’s Day, Mother’s Day, over the Christmas vacationand over the March school break on terms to be agreed upon be-tween the parties or failing agreement, by order of the court. If theparties cannot agree the following is ordered:

1. Wayne shall have the children on Father’s Day from 9:00a.m. until 8:00 p.m., Christmas day at 4:00 p.m. until De-cember 28th at 8:00 p.m. and on alternating March breakscommencing with March 2012.

2. Michaela shall have the children on Mother’s Day from9:00 a.m. until 8:00 p.m., every Christmas Eve at 4:00 p.m.until Christmas day at 4:00 p.m. and on alternating Marchbreaks.

9. Wayne shall have custody of the children for one month over thesummer on notice given to Michaela by June 1, 2011 and in sub-sequent years by May 1st.

10. Wayne shall pay child support to Michaela in the amount of $738per month on an annual income of $49,063, in accordance withthe Child Support Guidelines, commencing June 1, 2011.

11. The expenses for the children, pursuant to section 7 of the ChildSupport Guidelines shall be paid by the parties in proportion to theincomes of the parties.

12. Each party shall provide to the other a copy of his/her income taxreturn for the previous year by June 1st.

13. Wayne shall maintain coverage for the children and Michaela, onhis health and dental plan, available to him at his place of employ-ment and shall provide proof annually by June 1st that he has doneso commencing June 1, 2011.

14. Wayne shall maintain the life insurance currently in place namingthe children as beneficiaries, for so long as he is required to sup-port them and shall provide proof to Michaela that he has done soannually by June 1st, commencing June 1, 2011.


15. Each party may apply to the court for an order implementing theparallel parenting custody regime provided by this order.

33 If a police assistance order is required for Michaela to leave 24Benesfort Crescent with the children, I will order it. If Michaela’s motheris still content that Michaela and the children live with her on a short-term basis pending the processing of her application for Ontario Housingor getting a residence independent of government assistance, she shouldimmediately move there with the children.

34 Each party may provide written submissions on costs — Michaelawithin 10 days and Wayne within 10 days of the receipt of Michaela’ssubmissions.

Order accordingly.


[Indexed as: Jacobs v. Jacobs]

Katherine Margaret Jacobs (Applicant) and Anthony JosephJacobs (Respondent)


Docket: FS-09-8172

2011 ONSC 2699

Mary Jo M. Nolan J.

Heard: November 9-10, 2010

Judgment: May 12, 2011

Family law –––– Division of family property — Factors affecting equal orunequal division — Unequal financial contributions –––– Parties married in1983, had four children, and separated in 2008 — Husband claimed that hebrought to relationship $60,121.59, including RRSP’s, house worth $40,000,household contents worth $5,000, and car valued at $5,500 — Wife brought ap-plication for division of family property — Application granted — Husband wasordered to pay wife equalization payment of $145,205.56 within six months —On condition that wife could obtain new mortgage on property, husband wasgranted 30 days to transfer his interest in property to wife and was given creditof $38,616.50 against amount owing on equalization payment — At time ofmarriage, husband’s interest in house was $10,200, his interest in furniture was$1,000, and no value was placed on car — Husband’s evidence fell far short ofestablishing that he owned car at time of marriage — Husband’s evidence re-garding contents of home was unreliable — Husband failed to meet his onus toprove on balance of probabilities that his mother was not half owner of property.

Cases considered by Mary Jo M. Nolan J.:

Aning v. Aning (2002), 2002 CarswellOnt 1990, 30 R.F.L. (5th) 237, [2002] O.J.No. 2469 (Ont. S.C.J.) — referred to

Bauer v. Bauer (2005), 2005 CarswellOnt 2278, [2005] O.J. No. 2307 (Ont.S.C.J.) — followed

Belgiorgio v. Belgiorgio (2000), 2000 CarswellOnt 3060, [2000] O.T.C. 556, 10R.F.L. (5th) 239, [2000] O.J. No. 3246 (Ont. S.C.J.) — considered

Belgiorgio v. Belgiorgio (2001), 2001 CarswellOnt 4193, 23 R.F.L. (5th) 74,[2001] O.J. No. 4533 (Ont. C.A.) — referred to

Best v. Best (1999), [1999] 2 S.C.R. 868, 174 D.L.R. (4th) 235, 1999 Carswell-Ont 1995, 1999 CarswellOnt 1996, 43 O.R. (3d) 740 (headnote only), 49R.F.L. (4th) 1, 242 N.R. 1, 123 O.A.C. 1, 21 C.C.P.B. 1, 1999 C.E.B. &P.G.R. 8361 (headnote only), [1999] S.C.J. No. 40 (S.C.C.) — considered

Jacobs v. Jacobs Mary Jo M. Nolan J. 459

Bilas v. Bilas (1994), 1994 CarswellOnt 392, 3 R.F.L. (4th) 354, [1994] O.J. No.841 (Ont. Gen. Div.) — considered

Cerget v. Cerget (1994), 7 R.F.L. (4th) 322, 1994 CarswellOnt 445, [1994] O.J.No. 1633 (Ont. Gen. Div.) — considered

Dorriesfield v. Dorriesfield (1999), 1999 CarswellOnt 1473, [1999] O.J. No.1466 (Ont. Gen. Div.) — considered

Heppenheimer v. Heppenheimer (1994), 1994 CarswellOnt 2104, [1994] O.J.No. 2987 (Ont. Gen. Div.) — considered

Kim v. Kim (2001), 2001 CarswellOnt 502 (Ont. S.C.J.) — referred toMarjanovic v. Marjanovic (1996), 2 O.T.C. 226, 1996 CarswellOnt 1609, 24

R.F.L. (4th) 108 (Ont. Gen. Div.) — referred toMcDonald v. McDonald (1994), 5 R.F.L. (4th) 215, 1994 CarswellOnt 413,

[1994] O.J. No. 1644 (Ont. Gen. Div.) — consideredMcDonald v. McDonald (1997), 1997 CarswellOnt 4568, 33 R.F.L. (4th) 425

(Ont. C.A.) — referred toMisner v. Misner (2010), 2010 CarswellOnt 2713, 2010 ONSC 2284, 83 R.F.L.

(6th) 264 (Ont. S.C.J.) — consideredPost v. Post (1989), 1989 CarswellOnt 1358 (Ont. Dist. Ct.) — referred toTraversy v. Glover (2006), 30 R.F.L. (6th) 372, 2006 CarswellOnt 4380, [2006]

O.J. No. 2908 (Ont. S.C.J.) — consideredWebster v. Webster (1997), 37 R.F.L. (4th) 347, 28 O.T.C. 81, 1997 Carswell-

Ont 815, 32 O.R. (3d) 679 (Ont. Gen. Div.) — referred to


Family Law Act, R.S.O. 1990, c. F.3Generally — referred tos. 4(2) — referred tos. 4(3) — considereds. 9 — considereds. 9(1)(b) — considereds. 9(1)(b)(ii) — referred tos. 9(1)(d) — considereds. 9(1)(d)(i) — considered

APPLICATION by wife for division of matrimonial property.

Robert J. M. Ballance, for ApplicantTamara Stomp, for Respondent

Mary Jo M. Nolan J.:

Introduction1 The issues to be determined at trial were the amount of the equaliza-

tion payment owed by the respondent husband to the applicant wife,


whether this was an appropriate case in which to transfer the husband’sinterest in the matrimonial home to the wife in partial payment of theequalization owed and whether the court could or should order the sale ofproperty held in the husband’s name alone to satisfy the balance of theequalization payment.

2 Although the parties did not agree on the value of the contents of thematrimonial home, they agreed on the value of most other assets exceptthe value, if any, to be assigned to the house and furniture acknowledgedto be owned by the husband on the date of marriage and a sports carwhich the husband alleged he owned. The husband was claiming a pre-marital deduction for the house furniture and the sports car along withsome RRSP’s, the existence of which was not in dispute. Whether valuescould or should be assigned to these assets became the central issue to bedetermined in fixing the equalization payment. As a sub-issue, the natureof the evidence presented by the husband to attempt to establish his claimfor a deduction called into play the proper application of the rules ofevidence in family law cases.

Background3 Mr. and Mrs. Jacobs were married in 1983. It was the second mar-

riage for Mr. Jacobs and the first marriage for Mrs. Jacobs. They sepa-rated on November 1, 2008. Together they had four children, all ofwhom were living independently at the time of trial. At the time of sepa-ration, two of them lived in the matrimonial home but were not attendingschool.

4 Mrs. Jacobs commenced her application in March 2009, seeking a di-vorce, spousal support, an equalization payment, exclusive possession ofthe matrimonial home and contents at 33 Erieview Road, Leamington,and the sale of family property, as she described it, located at 185 TalbotStreet East, Leamington, which was held in the name of Mr. Jacobs. Inaddition, she sought a restraining order.

5 Mr. Jacobs responded to the application by way of an Answer inwhich he agreed with the claim for a divorce, for an equalization pay-ment and for the sale of family property but disputed all the other claims.In addition, he sought exclusive possession of the matrimonial home andcontents and child support for two of the adult children who were livingin the matrimonial home at the time of the separation.

6 Until approximately 2000, Mrs. Jacobs was a stay-at-home wife andmother. At the time of the separation, she worked as a part-time recep-


tionist in a doctor’s office in Leamington. Mr. Jacobs is, and wasthroughout the marriage, a paramedic and the main financial provider forthe family. At the time of trial he was in receipt of Workers Safety andInsurance Board (W.S.I.B.) benefits on account of a work-relateddisability.

7 To their credit, by the time the trial commenced, Mr. and Mrs. Jacobs,with the assistance of their counsel, had been able to resolve the issues ofspousal support, health benefits, life insurance and had agreed on thevalue of most of their assets. They also were divorced on November 10,2010 after an oral hearing during the trial.

The Evidence

Introduction:8 At the beginning of trial, counsel for Mrs. Jacobs filed as exhibits, on

consent, the partial Minutes of Settlement entered into by the parties,Mrs. Jacobs’ Net Family Property Statement, the appraisals of both thematrimonial home and the property at 185 Talbot Road East and the NetFamily Property Statement of Mr. Jacobs. The parties agreed on the val-ues of the matrimonial home, the property at 185 Talbot Street East, theOldsmobile Alero in the possession of Mr. Jacobs, the Dodge Caravan inthe possession of Mrs. Jacobs, the gross values of their respectiveRRSP’s, Mrs. Jacobs’ investment account, Mr. Jacobs’ employment pen-sion, the cash surrender value of Mrs. Jacobs’ life insurance policies aswell as the debts they had on separation day, including the mortgage onthe matrimonial home. Mr. and Mrs. Jacobs even agreed that the$6,000.00 value of the Dodge Caravan in Mrs. Jacobs’ possession shouldbe excluded from her net family property pursuant to section 4(2) of theFamily Law Act.

9 They disagreed on whether $3,000.00 should be attributed to Mrs. Ja-cobs on account of the contents of the matrimonial home still in her pos-session. The main area of disagreement, however, was the amount of theequalization payment owed by Mr. Jacobs to Mrs. Jacobs on account ofthe value to be attributed to assets owned or alleged to be owned by Mr.Jacobs on the date of marriage. According to Mr. Jacobs’ Net FamilyProperty Statement filed at the beginning of trial, he alleged he had as-sets worth $60,121.59 on the date of marriage, including the unreducedvalue of a group RRSP pension as well as two other RRSP’s, a houseworth $40,000.00 at 849 Point Pelee Drive, another $5,000.00 for thefurniture in the house and a Roadster valued at $5,500.00.


10 Mrs. Jacobs acknowledged the existence of the three RRSP’s ownedby Mr. Jacobs at the time of marriage but assigned a reduced value of 20percent for tax consequences. She assigned no value to the home onPoint Pelee Drive, or the furniture, and denied that Mr. Jacobs had aRoadster worth $5,500.00 at the time of marriage.

11 Mrs. Jacobs relied on Exhibits 1 to 4 as her evidence at the beginningof trial and reserved the right to testify in reply. Since it was Mr. Jacobs’onus to establish not just the existence of but the value of assets heowned on the date of marriage, he testified first.

Mr. Jacobs’ Evidence12 At the time of trial, Mr. Jacobs was 54 years old and in receipt of

W.S.I.B. benefits as a result of back problems incurred in his work as aparamedic with Sun Parlour Ambulance and Windsor EMS.

13 Mr. Jacobs testified that he bought the property at 849 Point PeleeDrive in April 1979 from his grandfather. It was a vacant lot for whichhe paid $10,500.00. He then bought a house on Chestnut Street by bidfrom the municipality for $2,200.00 and paid an additional $3,500.00 tohave it moved from Chestnut Street to the property on Point Pelee Drive.Mr. Jacobs said he got all the money from his grandfather. He said hepaid his grandfather back over a 20 month period before his grandfatherdied in 1982. He said he got a $30,000.00 mortgage with his mother’sassistance from the Bank of Montreal to excavate a foundation for thehouse, brick work and other construction to make it liveable. He said themortgage was at 19 percent with monthly payments of $1,100.00 permonth. To help with the payments, he rented a room to a Mr. Fast wholived in the home until just before Mr. and Mrs. Jacobs were married andmoved into the home together in 1983.

14 Shortly after acquiring the property, Mr. Jacobs transferred it. Hefiled as an exhibit a Deed dated August 31, 1979 which was a transfer ofthe property from Mr. Jacobs to his mother, Barbara Jacobs, for one dol-lar and natural love and affection. The Deed was dated August 31, 1979,Barbara Jacobs signed the land transfer tax affidavit on September 4,1979, and Mr. Jacobs signed the affidavit as to age and marital status onNovember 5, 1979, at which time he said he was not a spouse.

15 Mr. Jacobs also filed as an exhibit another Deed dated June 18, 1981,which was a transfer of the same property from his mother, Barbara Ja-cobs, back to himself and his mother as joint tenants for one dollar andnatural love and affection. The land transfer tax affidavit signed by Bar-


bara Jacobs and Mr. Jacobs on July 2, 1981 also provided that the pro-perty was not subject to any encumbrance. This statement appeared to bean error, given subsequent evidence of a mortgage on the property datedJune 1, 1981.

16 Mr. Jacobs went on to testify that he met Mrs. Jacobs in 1982 and thatshe had never stayed over at the Point Pelee Drive property prior to mar-riage. He said the home was fully furnished with new furniture whenthey got married and that Mrs. Jacobs only brought her own clothes intothe marriage. After marriage, Mr. and Mrs. Jacobs lived in the Point Pe-lee Drive home with the first two of their four children, Joel born No-vember 22, 1983 and Hanna born January 23, 1985 until the house wassold in November of 1986 for $70,000.00 to one John Silva. The trans-ferors were Mr. Jacobs and his mother Barbara Jacobs. That Deed wasfiled as an exhibit as was a second Deed whereby Mr. and Mrs. Jacobspurchased the property at 185 Talbot Street East for $45,000.00 as jointtenants, on November 19, 1986. Mr. Jacobs testified that they obtained amortgage for $30,000.00 on the property on Talbot Street East but he didnot, at that time, produce any evidence of the mortgage.

17 Mr. Jacobs testified that he lived on Talbot Street with Mrs. Jacobsand their four children until they moved to the home on Erieview in 2000or 2001. They maintained the property on Talbot as rental property. TheTalbot Street property was rented to Payless Auto, a used car business,until the business owner moved to a larger location.

18 Mr. Jacobs also said that when he and his wife separated in Novem-ber 2008, they continued to live separate and apart in the same houseuntil he moved out in July 2009. He took only his clothes with him. Heleft all the furniture. He said the whole house was fully furnished, muchof it with expensive, Amish built furniture. He said that the bed alonecost over $3,000.00.

19 With respect to the furniture in the Point Pelee Drive home at the timeof marriage, he estimated it was worth approximately $5,000.00 but itcould have been more because he paid $3,000.00 for the dining room setalone and there was also a washer, dryer, refrigerator and stove.

20 Mr. Jacobs testified that over the years he had owned six Roadsters,one of them being an MGB which he owned on the date of marriage andwhich he sold for $5,500.00. He said he would buy and fix up cars forsale as a way to make extra money and that he had a number of them onthe day he was married. He offered no documentary evidence as to own-ership or sale.


21 Mr. Jacobs’ evidence did not stand up well under cross-examination.He could not explain why he did not provide the Deed transferring theproperty from his grandfather to himself in 1979 nor any evidence of themortgage which he said he obtained on the property. The first Deed heprovided was the one transferring the property from himself to hismother. As for the money that he borrowed from his grandfather, therewas no evidence that the loan was paid off when he was married. As forwhy he transferred the property from himself to his mother in 1979, hesaid that he transferred it to avoid any claim his first wife, Diane, mighthave had to the property and that he conveyed the property to his mother“to protect the family.” As well, Mr. Jacobs could not explain why he didnot produce a copy of the mortgage he obtained to fix the house and hadno answer to the challenge that the mortgage he obtained was$45,000.00, not $30,000.00.

22 Mr. Jacobs acknowledged that there were no documents to establishthat his mother took title to the home in trust for him and that he did nothave any documents which would establish that he had an MGB worth$5,500.00 on the date of marriage. Also, he had never prepared a list ofthe furniture that he had on the date of marriage.

23 Although Mr. Jacobs completed all his oral evidence prior to thelunch break on the first day of trial, counsel for Mr. Jacobs sought andreceived leave to recall Mr. Jacobs for the purpose of introducing threefurther documents relating to the property on Point Pelee Drive that weremade exhibits. These were the abstract for the lot and plan for the homeon Point Pelee Drive, the deed by which the property was conveyed toMr. Jacobs in 1979 and a mortgage document for a mortgage obtained inJune 1981 by Mr. Jacobs and his mother for $35,000.00. It was a mort-gage for one year at 16 percent with monthly payments of $466.00 permonth which would be interest only payments.

24 These documents contradicted much of Mr. Jacobs’ oral evidence: hedid not purchase the property from his grandfather, he only paid$9,000.00, not $10,500.00 and the mortgage did not go on the propertyuntil 1981. I will deal with these inconsistencies later in this judgment.

Evidence of Mrs. Jacobs25 Mrs. Jacobs testified in reply. She said that she met Mr. Jacobs in

March 1981 and they married in August 1983. He was living on PointPelee Drive when she met him and she would visit him there three tofour times per week. She was still living at home with her mother and


step-father. She believed that he owned the property but had no personalknowledge of who actually owned it on the day they were married. Therewas some furniture in the house when they got married. She recalled thatthere were two used couches, one flowered with a matching chair. Theother was blue with a matching chair. They were in good condition andthought they would have been worth $100.00 to $200.00. There was alsoa table, four chairs and a hutch. When they got married she brought abedroom set from her house.

26 Mrs. Jacobs testified that Mr. Jacobs did not have an MGB when theygot married.

27 As for the whereabouts of all contents of the matrimonial home andgarage, Mrs. Jacobs said that some things had been removed by Mr. Ja-cobs such as a power washer, a compressor and all the contents of thegarage, much of which came from the Talbot Street property after thefire. She interpreted his actions in taking things from the garage as hisacknowledgement that she could keep as hers everything that was in thehouse because “everything is supposed to be half and half.”

28 On cross-examination, Mrs. Jacobs acknowledged that in addition tofour beds, the house has a fully furnished living room, kitchen/diningroom, but that she has not made a written inventory of the contents. Mrs.Jacobs also acknowledged that all the items were purchased in 2000 afterthe fire on Talbot Street. As for the items in the garage, she recalled thatthere was a welder, wrenches and chests of tools.

29 Mrs. Jacobs was also cross-examined about her testimony regardingthe home on Point Pelee Drive. She confirmed that she went there threeor four times per week, that there was a boarder living there, there was aused fridge and stove, but said there were no beds until she brought herbedroom suite after they married. She helped Mr. Jacobs pick out acouch for one of the two living rooms but he paid for it.

30 With respect to any automobile Mr. Jacobs had at the time of the mar-riage, Mr. Jacobs had what Mrs. Jacobs called a “beat up” car but said hedid not have any roadsters. Over the years, he would buy different kindsof old cars, fix them up and then sell them to make extra money. At thetime of marriage, Mrs. Jacobs said she had an old Maverick. After mar-riage, she and Mr. Jacobs bought a gold Horizon with funds they bor-rowed from her mother and later paid back. Mrs. Jacobs said that oftenthey were a one-car family since she did not work outside the home.They bought a van after they had four children.


31 As for the sale of Point Pelee Drive, Mrs. Jacobs had very littleknowledge about who owned it or how much was owing on any mort-gage. Questions were asked of her about how the house on Talbot waspaid for and whether there was a mortgage on it. It was clear from heranswers that it was Mr. Jacobs who handled the family finances and Mrs.Jacobs had very little actual knowledge of financial arrangements enteredinto by Mr. Jacobs. She did acknowledge that Mr. Jacobs owned thehouse on Point Pelee Drive before they got married, that it sold for$70,000.00 and they bought Talbot for $45,000.00.

Analysis32 Before dealing with the issue of the onus of proof when a litigant is

claiming entitlement to a deduction, fixing the amount of the equaliza-tion payment as well as the options available to the court with respect tothe transfer of a matrimonial home and the sale of other property to sat-isfy an equalization payment, I want to comment on the application ofthe rules of evidence in family law.

33 It was the position of counsel for Mrs. Jacobs that I should applystrict rules of evidence when making findings of fact about the value ofthe assets for which Mr. Jacobs was claiming a deduction.

34 It was the position of counsel for Mr. Jacobs that I should accept thevalue of the items claimed by Mr. Jacobs as pre-marital deductions onhis evidence alone. It was his counsel’s position that since Mr. Jacobshad put values on it and since Mrs. Jacobs had been unable to provideany values, I should accept Mr. Jacobs’ valuation. Counsel referred me toa number of cases in which the court accepted the value of non-experts,usually the parties themselves, when determining equalization. Acknowl-edging that evidence from parties is not always the best evidence and thatit is often “flavoured” by estimates/guesstimates, nevertheless, I wasurged to accept Mr. Jacobs’ valuation of those items for which he wasclaiming a deduction.

35 I was referred to the case of Lafrenier v. Lafrenier, an unreportedS.C.J. decision of April 12, 2010 of Patterson J. where the evidence ofvalues placed by the parties on most of the items in the Net Family Pro-perty Statements were those of the parties alone. In that case, the courtconsidered the values put forward and made findings regarding the valueof the items in question.


36 Similarly in Cerget v. Cerget, [1994] O.J. No. 1633 (Ont. Gen. Div.),Brockenshire J. made findings about the value of certain pre-marital as-sets from the undisputed evidence of the husband.

37 As well, in Heppenheimer v. Heppenheimer, [1994] O.J. No. 2987(Ont. Gen. Div.) the court found it difficult to assign values but didchoose values from the evidence of the parties without the benefit ofappraisals.

38 In Bauer v. Bauer, [2005] O.J. No. 2307 (Ont. S.C.J.), the value ofproperty owned by the husband on the date of marriage was also dis-puted. The property was sold two years after marriage for $34,000.00.Pierce J. calculated the value of the property on the date of marriage byapplying an appreciation rate of 7.5 percent for the two preceding yearsto the sale value of $34,000.00 to find a net value of $28,900.00 on thedate of marriage. She then reduced the value by the amount of the out-standing mortgage.

39 In Dorriesfield v. Dorriesfield, [1999] O.J. No. 1466 (Ont. Gen. Div.)in which the court was faced with determining equalization, Meehan J.commented at paragraph 24:

Unfortunately the standard of proof and the standard of evidence infamily law proceedings all over Ontario is poor to bad. In many casesit is because the cost of appraisals is so great that the parties cannotafford the appraisals, keeping in mind the minimal value of the pro-perty and the chattels.

Meehan J. then considered a number of items of property such as tools,firearms, jewellery, computers, an aluminum boat and outboard motorand the like. It is interesting to note that Meehan J. commented that hehad a comfort level with assessing the value of various properties basedon the “guesstimates” of the parties because he had the impression fromthe evidence that there was no issue of bad faith on behalf of the respon-dent husband.

40 As to Meehan J.’s comments regarding the failure of the courts tofollow the rules of evidence in family law, I wish to make reference tothe article by D.A. Rollie Thompson, “Are There Any Rules of Evidencein Family Law?” (2003), 21 Canadian Family Law Quarterly 245. Thearticle emphasized that, in fact, it is in family law that many of the hard-est issues of evidence are raised and that judges must be dedicated to thedemanding task of balancing the “need to apply the rules of evidencewith the distinctive purposes of modern family law.” Thompson distin-guished evidence issues in family law practice between financial matters


(property and support) and custody and access issues as well as childprotection. He said that in financial matters, family law evidentiary rulesare closest to “ordinary” civil litigation rules, perhaps bearing closest re-semblance to commercial litigation. One such characteristic is in theform of the evidence — affidavits, documents and papers relied on incases involving property and support. He recognized that “the “core” ofevidence rules — relevance, witnesses, privilege — does seem to applywith only minor modifications in family law cases.”

41 It is my view that in cases in which neither party is claiming a deduc-tion or an exclusion and the values to be assigned to property accumu-lated by the parties during the marriage is relatively insignificant, itwould not be cost-effective to require each party to obtain expert apprais-als for all the items. At the same time, when one party has an onus toestablish a deduction, the obligation on that party to obtain and presentthe best evidence and for the court to weigh the evidence using the ordi-nary rules of evidence is a higher obligation. In considering the evidencepresented by that party, the court must take into account the adequacy ofthe evidence, and what steps were taken by the party to obtain all availa-ble documentary or oral evidence to support his or her position andwhether the onus has been met on the balance of probabilities.

42 It is further my view that in cases such as the one before me, affida-vits of documents prepared early in the litigation are of great assistanceto the parties and eventually the court in determining whether the docu-mentary evidence is available to establish a claim being made andwhether it has to be augmented by oral evidence.

Onus of Proof43 The nature of the evidence required when one party is claiming a de-

duction or an exclusion is significant. The onus of proof is on the personclaiming the deduction or the exclusion as set out in section 4(3) of theFamily Law Act, RSO 1990, c F-3. The rules regarding the evidence arefurther elaborated by often-cited case law. In Traversy v. Glover (2006),30 R.F.L. (6th) 372 (Ont. S.C.J.) the court held that the onus of proof in amarriage deduction request includes “proof that the property existed atthe date of marriage and of its value. The court may estimate value, ifownership is clearly established, and only limited evidence of value ispossible” [Emphasis added]. While attempts to obtain proof of the valuemay be considered by the court, the court in Traversy seemed to require


proof of such attempts to get the necessary evidence rather than just rely-ing on the claimant’s testimony and memory.

44 In McDonald v. McDonald (1994), 5 R.F.L. (4th) 215 (Ont. Gen.Div.), affm’d (1997), 33 R.F.L. (4th) 425 (Ont. C.A.) Mr. McDonald’sclaim for a deduction on account of a house he owned prior to marriagewas not allowed and the court found that he had failed to discharge theonus of a person claiming a pre-marital property deduction.

45 Similarly in Bilas v. Bilas (1994), 3 R.F.L. (4th) 354 (Ont. Gen. Div.)the court attributed no value to a cottage which the husband brought intothe marriage and sold during the marriage since he failed to offer anyreliable evidence of his financial contentions regarding the value of thecottage. The court determined that the husband understood the impor-tance of obtaining documentary evidence to support a claim, however, hemade no effort to do so.

46 This approach was followed in Belgiorgio v. Belgiorgio (2000), 10R.F.L. (5th) 239 (Ont. S.C.J.), affm’d (2001), 23 R.F.L. (5th) 74 (Ont.C.A.) where, similarly, a husband failed to obtain documentary proof tosubstantiate his claim.

47 In the case before me, counsel for Mr. Jacobs acknowledged that Mr.Jacobs’ evidence “was not fully clear on the chronology of the ownershipand values for the house and debt owed” and that his memories were“not precise as to dates and amounts, nor eloquently communicated.” Mr.Jacobs said at first that he bought the property from his grandfather butthat recollection was contradicted by the Deed. He was also incorrect onboth the purchase price and the mortgage interest rate. Counsel for Mr.Jacobs submitted that these errors were merely grappling with memoryand not a concoction and that, in spite of testimonial error, his testimonyis consistent with the documentary evidence.

48 I disagree. Mr. Jacobs appeared to take very lightly his obligation tomeet his onus to prove his claim on the balance of probabilities. The trialhad been scheduled for some time. He knew that the issue of his owner-ship of the Point Pelee Drive property and its value would be the mostimportant issue at trial. It was not until after he had finished giving hisoral testimony that further deeds were obtained which established whenhe purchased the property and from whom. These deeds also providedproof that the property was not purchased from his grandfather and that itwas not purchased for the amount to which he had testified.

49 I find that, on the whole, Mr. Jacobs was prepared to testify underoath about information that even he was not sure was correct. While I am


reluctant to find that he deliberately lied, he certainly was a most unrelia-ble witness.

50 On the other hand, I find Mrs. Jacobs to have been a more reliablewitness and where her evidence in relation to the MGB automobile andthe contents of Point Pelee Drive differs from that of Mr. Jacobs, I accepther evidence.

51 Although courts can estimate value if ownership is clearly establishedand only limited evidence of value is available, that is not the case in thematter before me. The documentary evidence which was provided afterMr. Jacobs’ finished testifying clearly shows that this evidence wasavailable to him much earlier in the proceeding and Mr. Jacobs eitherneglected or refused to obtain this information in a timely manner. If theparties had prepared affidavits of documents, the deeds and other docu-ments would have been produced and it may not have been necessary tohave a trial if these values and the circumstances of the purchase andvarious transfers of Point Pelee Drive were known earlier in thelitigation.

52 At the date of marriage, according to the deed in place at that time,and not rebutted by any reliable evidence, Mr. Jacobs was a half ownerof the Point Pelee Drive home with his mother, Barbara Jacobs. Theyheld the property as joint tenants. There is a presumption therefore, thatthey each owned one half of the property with rights of survivorship onthe death of one of them. This presumption is rebuttable on the properevidence. There were no trust documents tendered to establish that Bar-bara Jacobs held a half interest in trust for Mr. Jacobs. Barbara Jacobs isstill living and there was no reasonable explanation given as to why shecould not have testified at trial. As a result, I draw an adverse inferenceagainst Mr. Jacobs for his failure to call her as a witness, the inferencebeing that her evidence would not have been helpful to Mr. Jacobs.While Mr. Jacobs said that his mother’s name was on the deed as a halfowner so that a mortgage could be put on the property, there was noindependent evidence of that requirement. Given the unreliability of Mr.Jacobs’ evidence on other matters even in the face of available, accurateinformation, I find that his explanation does not meet his onus on thebalance of probabilities. There could be many reasons why Mr. Jacobstransferred the home to his mother and why she kept a half interest whenit was transferred back, including that he may have owed her money in1981.


53 Having found that Mr. Jacobs had a half interest in the house on thedate of marriage, it is now necessary to place a value on that half-inter-est. Counsel for Mrs. Jacobs suggested that I apply the pro-rata approachfound to be a reasonable approach in calculating the value of a pension inBest v. Best, [1999] 2 S.C.R. 868 (S.C.C.). In Bauer v. Bauer, supra,Pierce J. had to calculate the value of property owned by a spouse on thedate of marriage and adopted a different approach. Having establishedownership, Pierce J. determined the value of the property on marriage byapplying an appreciation rate of 7.5 percent to each of the years from thedate of marriage to the date of the sale.

54 In the case before me, the evidence established that the total cost ofacquisition of the property was $14,700.00 in 1979. It sold seven yearslater for $70,000.00. In the absence of any evidence as to the averageincrease in real estate values in Essex County from 1979 to 1986, coun-sel for Mrs. Jacobs urged me to consider that a pro-rata increase of$7,900.00 per year for each of the seven years of ownership is not anunreasonable approach. That calculation would result in a value on dateof marriage of $46,300.00, less the mortgage.

55 Counsel for Mr. Jacobs urged that I find that Barbara Jacobs took titleto the property in 1979 in trust for Mr. Jacobs in the absence of anyevidence that his mother contributed any funds to the original purchaseof the property. Counsel asserted that I should find that the property wasworth at least $40,000.00 on the date of marriage because two years ear-lier in 1981 the bank advanced a mortgage of $35,000.00 which counselurged me to find was 75 percent of the value, making the value of thehouse in 1981 $46,600.00. It was the argument of counsel for Mr. Jacobsthat while the home did not likely increase that much to the date of sale,that by the time of sale, the mortgage must have been paid down to atleast $30,000.00 because Mr. Jacobs testified he put $40,000.00 towardsthe purchase of Talbot Street and also paid off the mortgage in 1986when the house was sold.

56 With respect, the mortgage document itself provides that the monthlypayments of $466.00 on the mortgage of $35,000.00 at 16 percent wasonly enough to pay the interest. Even if it was renewed at the same inter-est rate each year until the date of marriage in 1983, very little wouldhave been paid off the principal. Whatever value is placed on the pro-perty itself in August 1983, that amount has to be reduced by the balanceof the mortgage.


57 In all of the circumstances, including the absence of any specific evi-dence about the increase or lack of increase in property values from 1983to 1986, I will apply a percentage increase of 7.5 percent per year asPierce J. did in Bauer v. Bauer. Since it sold for $70,000.00 in 1986 andapplying a 7.5 percent increase from 1983, the value of the property in1983 was $54,900.00. The mortgage had been in existence for just overtwo years at the time of marriage. According to the mortgage documents,the monthly payments paid just more than the interest. Three years later,according to Mr. Jacobs’ evidence, he was able to pay $30,000.00 to dis-charge the mortgage in 1986 and have $40,000.00 to put towards the Tal-bot Street property. Accordingly, very little would have been paid off theprincipal in August 1983. I assume $500.00. Accordingly, I find that theproperty was worth $54,900.00 on the date of marriage less a mortgageobligation of $34,500.00 for a net value of $20,400.00. Having foundthat Mr. Jacobs did not meet his onus to prove on the balance ofprobabilities that his mother was not half owner of the property, I find hisinterest on the date of marriage was $10,200.00.

58 As for the value of the furniture in the home on the date of marriage, Iplace a value of $1,000.00. The home itself was obtained for $14,700.00and I found Mr. Jacobs’ evidence less than reliable. Because there wasevidence from both Mr. and Mrs. Jacobs that there was some furniture inthe house, I am prepared to set a value but not anywhere near the$5,000.00 suggested by Mr. Jacobs.

59 With respect to the existence of an MGB sports car worth $5,500.00on the date of marriage, Mr. Jacobs’ evidence fell far short of establish-ing that he owned it at that time. Mr. Jacobs’ memory on many importantissues was faulty and unlike the comment made by Meehan J. inDorriesfield v. Dorriesfield, supra, I was not satisfied that Mr. Jacobsalways presented his evidence with a concern for its accuracy.

60 The issue of establishing a value of the contents of the matrimonialhome was not handled well by either party. Neither had obtained an ap-praisal. Accordingly, based on the evidence of both parties, I have nodifficulty placing a net value of the contents of the house in the posses-sion of Mrs. Jacobs at $3,000.00. Given the size of the house and the factthat Mrs. Jacobs testified that it was fully furnished except for the bedher daughter took when she got married, a $3,000.00 value is a reasona-ble value. I will assign a value of $750.00 to the items taken from thegarage by Mr. Jacobs.


61 If, however, the parties wish to have a Reference before the Master todeal with the contents issue, either counsel may make such a request andI will amend this judgment accordingly.

Net Family Property Calculation and Equalization Payment62 Based on my findings of fact with respect to the value to be placed on

Mr. Jacobs’ premarital property and the value to be placed on the valueof the property in the possession of both Mrs. Jacobs and Mr. Jacobs, Ifind that Mr. Jacobs owes Mrs. Jacobs an equalization payment of$145,205.56. I arrive at that amount as follows.VALUE OF ASSETS OWNED ON VALUATION DAY

APPLICANT RESPONDENT

LAND (as agreed to by parties) $38,616.50 $263,616.50

HOUSEHOLD GOODS AND $3,000.00 $750.00FURNITURE (not agreed to byparties)

VEHICLES (as agreed to byparties) $6,000.00 $3,000.00

$9,000.00 $3,750.00

BANK ACCOUNTS, ETC. (as $20,458.48 $143,473.50agreed to by parties)

LIFE INSURANCE (as agreed $11,662.71 0to by parties

VALUE OF ALL PROPERTY $79,737.69 $410,840.00ON VALUATION DATE

VALUE OF DEBTS AND LI- $7,000.00 $35,779.00ABILITIES ON VALUATIONDAY (as agreed to by parties)

REAL PROPERTY AND FUR- 0 $11,450.00NISHINGS ON DATE OFMARRIAGE

RRSP’s (as agreed to by par- $6,711.32ties)

EXCLUDED PROPERTY (asagreed to by parties) Wife’sCar $6,000.00 0

SUMMARY

TOTAL ASSETS OWNED ON $79,737.69 $410,840.00VALUATION DAY

TOTAL DEBTS $7,000.00 $35,779.35


VALUE OF PROPERTY ON 0 $17,911.32 (includingDATE OF MARRIAGE house, contents and

RRSP’s

EXCLUDED PROPERTY $6,000.00 0

TOTAL $66,737.69 $357,149.01

Mr. Jacobs owes Mrs. Jacobs an equalization payment of $145,205.56.

63 The issue then becomes how Mr. Jacobs can make this payment. Al-though he can transfer his interest in the matrimonial home of$38,616.50 to Mrs. Jacobs, the home is subject to a mortgage in favourof Bank of Montreal in an amount in excess of $157,000.00 and if Mrs.Jacobs is going to be the sole owner, Mr. Jacobs is entitled to be relievedof his obligation on the mortgage.

Section 9 Considerations64 Generally, the method of achieving equalization of property is to di-

vide the value, as opposed to change the ownership and to require a mon-etary payment to satisfy equalization. However, under s.9 of the FamilyLaw Act, the court has the option between many methods of payment ofthe equalization amount. Such methods include “an order of immediatepayment, the granting of a security interest, an installment scheme, post-ponement of payment, creation of a trust and the transferral, partition orsale of property” (Best v. Best, [1999] 2 S.C.R. 868 (S.C.C.), para. 107).

65 Under s. 9(1)(d)(i) of the Family Law Act, the court has the power totransfer ownership to satisfy the equalization obligation and the list of“appropriate circumstances” for the ordering of the transfer of property isby no means exhaustive; “this power should be given a broad interpreta-tion with the intent of the legislation to provide a wide range of remediesso that a fair and reasonable solution may be fashioned (Webster v. Web-ster (1997), 37 R.F.L. (4th) 347 (Ont. Gen. Div.).

9(1) in an application under s.7, the court may order,

. . .

(b) that security, including a charge on property, be given for the per-formance of an obligation imposed by the order;

. . .

(d) that, if appropriate to satisfy an obligation imposed by the order,

(i) Property be transferred to or in trust for or vested in aspouse, whether absolutely, for life or for a term ofyears, or

(ii) Any property be partitioned or sold.


66 The jurisprudence and statutory provisions illustrate that the FamilyLaw Act is

primarily a debtor/creditor statute — it does not create a property in-terest, other than giving a limited right to the possession of the matri-monial home. It does not provide for the allocation of particular as-sets as between spouses, except where the court makes a declarationof ownership under s.10(1), or where such allocation is made in orderto satisfy an obligation imposed as a result of the equalization of netfamily property under s.9(1)(d)(i) (MacDonald, James. Law andPractice under the Family Law Act of Ontario, Revised Ed. Volume1, (Ontario: Thomson Reuters Canada Limited, 2004). p.1-56.36).

67 The court has routinely ordered that the matrimonial home be trans-ferred to and vested absolutely in the name of the payee in order to sat-isfy (if only in part) the equalization payment to be made by the payor(Kim v. Kim, 2001 CarswellOnt 502 (Ont. S.C.J.); Post v. Post, 1989CarswellOnt 1358 (Ont. Dist. Ct.); Marjanovic v. Marjanovic (1996), 24R.F.L. (4th) 108 (Ont. Gen. Div.); Aning v. Aning (2002), 30 R.F.L. (5th)237 (Ont. S.C.J.)). However, this becomes complicated, in the casebefore me, by the existence of a mortgage for which both Mr. and Mrs.Jacobs are responsible.

68 In Misner v. Misner [2010 CarswellOnt 2713], [2010] W.D.F.L. 4293(Ont. S.C.J.), the court was faced with a similar situation. Pazaratz J.found it an appropriate case for the respondent’s interest in the matrimo-nial home to be transferred to the applicant to satisfy his equalizationobligation. He found there was no prejudice to the respondent, as evenupon sale, his share of the net proceeds would have been applied to sat-isfy his equalization. That said, the court stipulated that this transfer“would be subject to [the wife’s] ability to arrange to have the mortgagetransferred into her name,” and further that approval for this transfermight be secured by the amount of support she would be subsequentlyreceiving from the respondent (para.176). Moreover, prior to ordering theinterest transferred, the court required responses to what the implicationswould be with respect to the existing joint mortgage and whether financ-ing in her own name, would be possible for the applicant wife (para.182).If the applicant was unable to arrange financing the court suggested thepossibility that the respondent “act as a guarantor of the mortgage obliga-tion (with monthly payments being the applicant’s responsibility)”(para.182).

69 In my view, a similar suggestion that Mr. Jacobs be a guarantor of themortgage would not be appropriate. Accordingly, Mrs. Jacobs will have


30 days from the date of this judgment to provide documentary proofthrough counsel that she is able to discharge the existing mortgage onErieview. The bank may permit her to secure the mortgage against thebalance of the equalization. Once documentary proof is received, Mr. Ja-cobs has a further 30 days to transfer his interest in the home to Mrs.Jacobs. His interest in the property valued at $38,616.50 will be a creditagainst the equalization payment, leaving a balance owing of$106,589.00. With the mortgage obligation on Erieview discharged, Mr.Jacobs can no doubt obtain a mortgage on Talbot Street which he ownsfree and clear. The alternative is to order the Talbot Street property soldpursuant to s. 9(1)(b)(ii) of the Family Law Act and part of the proceedsto the total amount of the outstanding balance owing on the equalization.In any event, the equalization payment is to be paid in full within sixmonths.

70 If Mrs. Jacobs is unable to have the mortgage discharged, then theErieview property shall be listed forthwith for sale and one half of the netproceeds of sale, being Mr. Jacobs share, will be paid to Mrs. Jacobs andbe a credit against the equalization owed by Mr. Jacobs to her.

71 If the parties are unable to agree on costs and pre-judgment interest, Iwill receive written submissions within 30 days from each party.

72 In summary, the following order shall issue:

1) The respondent shall pay the amount of $145,205.56 to the appli-cant on account of equalization;

2) On the condition that the applicant can obtain a new mortgage onthe property at 33 Erieview Road, Leamington, and have the re-spondent’s obligation on the current mortgage released within 45days of this judgment, the respondent shall have a further 30 daysto transfer his interest in the Erieview property to the applicantand shall be given a credit of $38,616.50 against the amount ow-ing on the equalization payment;

3) If the applicant is unable to obtain the new financing, the Erieviewproperty shall be listed for sale forthwith with a reference to theMaster at Windsor to conduct all aspects of the sale, if necessary;

4) One half of the net proceeds of sale, being the respondent’s shareshall be paid to the applicant and be a credit against the equaliza-tion payment;

5) The total amount of the equalization payment shall be paid withinsix months of the release of this judgment, failing which the pro-


perty in the sole name of the respondent located at 185 TalbotStreet East, Leamington, shall be listed for sale forthwith, with areference to the Master at Windsor to conduct all aspects of thesale, if necessary;

6) Following the sale, if necessary, of the Talbot Street property, theportion of the net proceeds of sale which is any amount owing onaccount of the equalization payment owed by the respondent tothe applicant shall be paid out forthwith to the applicant and thebalance to the respondent;

7) Costs and pre-judgment interest in accordance with the directionsin the Reasons for Judgment.



[Indexed as: Daley v. Ivey]

Jacqueline Daley (Applicant) and Lancelot Ivey (Respondent)


Docket: Brampton 1034/10

2011 ONCJ 351

Manjusha B. Pawagi J.


Judgment: July 7, 2011*

Family law –––– Support — Child support under federal and provincialguidelines — Determination of spouse’s annual income — Imputed in-come — Deliberately unemployed or under-employed –––– Parties werenever married, nor did they ever live together, and had one child — Father livedwith his wife and four children — In 2006, father’s employment was termi-nated — Father claimed that he had not worked outside home since his termina-tion and cared for his four-year-old twins — Father’s wife earned $75,000 in2008 — Mother was on social assistance, receiving approximately $16,444 peryear — Mother brought application for child support — Application granted —Father was ordered to pay child support of $462 per month on imputed annualincome of $50,000, commencing in October 2009, and $100 toward arrears —Father’s decision not to seek work following his termination was voluntary —Unemployment was not required — Given father’s ability to earn $50,000 peryear, it was cost effective for him and his wife to put twins in daycare, allowingfather to work.

Cases considered by Manjusha B. Pawagi J.:

D. (D.R.) v. M. (J.) (2004), 2004 ABCA 380, 2004 CarswellAlta 1580, 247D.L.R. (4th) 569, 361 A.R. 214, 339 W.A.C. 214, 6 R.F.L. (6th) 240, 36Alta. L.R. (4th) 221, [2004] A.J. No. 1331 (Alta. C.A.) — considered

Drygala v. Pauli (2002), 29 R.F.L. (5th) 293, 2002 CarswellOnt 3228, 61 O.R.(3d) 711, 219 D.L.R. (4th) 319, 164 O.A.C. 241, (sub nom. A.M.D. v. A.J.P.)[2002] O.J. No. 3731 (Ont. C.A.) — followed

*Affirmed at Daley v. Ivey (2011), 2011 ONSC 6923, 2011 CarswellOnt 12752,5 R.F.L. (7th) 485 (Ont. S.C.J.).

Daley v. Ivey Manjusha B. Pawagi J. 479


Family Law Act, R.S.O. 1990, c. F.3Child Support Guidelines, O. Reg. 391/97

Generally — referred tos. 19(1) — referred tos. 19(1)(a) — considered

APPLICATION by mother for child support.

Glen A. Cook, for Applicant, MotherLouis A. Robinson, for Respondent, Father

Manjusha B. Pawagi J.:

1: Nature of the Case1 This case is about whether the respondent father can be exempt from

paying child support for his child with the applicant mother, as a result ofhis choosing to be unemployed so he can care fulltime for his other chil-dren while his wife works and supports their family. The applicantmother seeks custody and child support for the child, Javion MichealIvey, born on 14 October 2009 (age 20 months). The respondent father isconsenting to her having custody and to her having leave to obtain pass-ports and travel with the child without requiring his consent. He is dis-puting her claim for child support on the grounds that he has not workedsince 2006 because he has been caring for his twin sons (now age 4). Theparties agreed to conduct a trial of an issue regarding child support solelyon affidavit and documentary evidence filed and submissions by counsel.

2: Background2 The parties were never married nor did they ever live together. The

respondent father lives with his wife and four children: stepdaughter age22, daughter age 15 and twin sons age 4. The respondent father has ahigh school education. He worked for Western Toronto International forabout 12 years in auto body repair until his employment was terminatedin about 2006 because of the company’s change in ownership. In the lastyear that he was employed, he made $54,000 (according to his 2006 no-tice of assessment).

3 He reports not having any income since 2006 (according to subse-quent notices of assessments) and deposes that he chose not to look forwork but to remain at home fulltime to care for his twin sons while hiswife worked. His wife works as a personal support worker. In 2008, she


worked three jobs and made about $75,000 (according to her T4s fromthe Regional Municipality of Peel, Vigour Limited Partnership and Hol-land Christian Homes). No evidence about his wife’s income after 2008was provided. The respondent and his wife reside in a home worth about$340,000 and have two cars, a 2009 Mazda 7 and a 2000 Cadillac Esca-lade. The applicant mother receives social assistance (about $16,444 peryear), rents an apartment and has one car, a 1994 Acura.

3: Positions of the Parties4 The applicant mother’s position is that the court should impute an

income of $50,000 to the respondent based on what he earned when hewas last employed. The respondent father’s position is that no incomeought to be imputed because his unemployment is required by the needsof his children.

4: Analysis5 The test for imputing income is provided in clause 19(1)(a) of the

Child Support Guidelines, O. Reg. 391/97 [as amended], which reads asfollows:

19. Imputing income. — (1) The court may impute such amount ofincome to a parent or spouse as it considers appropriate in the cir-cumstances, which circumstances include,

(a) the parent or spouse is intentionally underem-ployed or unemployed, other than where the un-deremployment or unemployment is required bythe needs of any child or by the reasonable educa-tional or health needs of the parent or spouse;

. . .

6 The mother’s position at first instance is that the court ought to im-pute income to the father on the basis that he is actually not unemployedas he claims, but that he is working for cash. Her evidence to support thatis the following:

1. She deposes that she has been in an intimate relationshipwith the respondent for over five years. She would oftenmeet up with him and he would be dressed in his autobodymechanic uniform with his name on it. She has filed aphoto of him in said uniform, date stamped 5 January 2010.He would discuss details of his job with her; for example,fixing a truck, fixing a school bus, complaining about get-


ting burned while welding. The applicant’s adult daughterserved the respondent at Ansa Auto Repair at 116 OrendaRoad, Brampton because the applicant knew that this waswhere he worked and that he could be found there.

2. The respondent’s financial statement sworn on 21 March2011 shows his yearly household expenses as $67,652, anddebt of $18,500 (not including mortgage). It shows no in-come for him and income for his wife of $75,000. How-ever, he provides no proof of his wife’s income after 2008.Their bank account records for 2009 and 2010 show depos-its from Holland Christian Homes of about $1,000 everytwo weeks which extrapolates to an annual net income ofabout $24,000 from this source for his wife. But the otherdeposits to their joint account could be either from him orhis wife, it is not clear:

• 1 September 2009 — two “ABM deposits” of$1,638 each;

• 3 December 2009 — “deposit” of $4,000;

• 18 May 2009 — “ABM deposit” of $150;

• 22 May 2009 — “deposit” of $750;

• 27 May 2009 — “deposit” of $300;

• 16 June 2009 — “deposit” of $577;

• 12 July 2009 — “deposit” of $400.7 The father’s response is that he just happened to be at Ansa Auto

Repair visiting friends when he was served there. He did not provide aresponse as to the origin of the unnamed deposits to his and his wife’sjoint account.

8 I find that, since he and his wife are able to cover their yearly ex-penses of $67,652, and since the only income definitely attributable tohis wife is about $24,000, that leaves expenses of about $43,652 thatthey are also somehow able to cover. He deposes that they are coveredby his wife’s working, but provides no evidence of that (saying his wiferefused to provide any further evidence as she was upset by this case).Those expenses could just as easily be covered by his working for cashand is consistent with the mother’s evidence that he was served at anauto body repair shop. On that basis, I find that it would be reasonable toimpute to him an income of $50,000.


9 In the alternative, if I accept his contention that he is unemployed forthe purpose of caring for his twin sons, then I must undertake the three-part analysis set out by the Court of Appeal for Ontario in Drygala v.Pauli, 2002 CanLII 41868, (2002), 61 O.R. (3d) 711, 164 O.A.C. 241,219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No. 3731, 2002CarswellOnt 3228 (Ont. C.A.), before imputing income pursuant to sub-section 19(1).

4.1: Is the Spouse Intentionally Under-Employed or Unemployed?10 The court is clear that “intentionally” in this context does not require

the court to find bad faith in terms of an intention to avoid paying childsupport. Rather, it refers to the plain meaning of the word “intentionally”in that the under-employment or unemployment is voluntary. Here, whilethe father’s termination of employment was involuntary (his companychanged ownership) his subsequent decision not to look for work wasvoluntary. He has chosen to be unemployed. Thus, the first part of thetest is met.

4.2: If So, Is the Intentional Under-Employment or UnemploymentRequired by Virtue of the Needs of a Child of the Marriage or AnyChild under the Age of Majority?

11 The Alberta Court of Appeal, in D. (D.R.) v. M. (J.), 2004 ABCA380, 361 A.R. 214, 36 Alta. L.R. (4th) 221, 339 W.A.C. 214, 247 D.L.R.(4th) 569 (Alta. C.A.), 6 R.F.L. (6th) 240, [2004] A.J. No. 1331, 2004CarswellAlta 1580 (Alta. C.A.), held that a parent did not have to showevidence of special needs on the part of the children to justify that unem-ployment to care for them is required and that it is a “trite fact” thatchildren ages 2 and 4 months (as they were in that case) need constantcare. However, the court went on to note that a parent may well be re-quired to lead evidence relating to the cost-effectiveness of placing thechildren in day care or with a baby-sitter given the income that the parentis likely to earn upon returning to work and that:

... there may well be a presumption that the needs of a child favourthe provision of childcare by a parent where the potential incomewhich could be earned through employment by that parent does notsignificantly exceed the costs of daycare, babysitting and after-schoolcare;


See paragraph [21](c).12 In the Alberta case, the mother in question could expect to have a

minimum wage income imputed to her. Thus, the court found it was rea-sonable for her to be unemployed to care for her young children. Here,the father has a work history of making much more than minimum wage.Thus, it would be cost-effective for him to return to work even with thechild-care costs for two children. The father provided evidence that thecosts for full-time care would be $185 per week per child for the ex-tended hours of 7 a.m. to 6 p.m. at the privately run “Academic Kinder-garten” which works out to about $9,620 per year per child, not account-ing for the tax deductions available for child-care costs. This cost is forchildren at the age of 4. No evidence was provided regarding how muchchild care would have cost when they were 2 and 3 years old. But even ifit were double the cost, it would still be cost-effective for the father towork, given his ability to earn $50,000 per year and the fact that the childcare costs would be shared between him and his wife.

13 Thus, I find that his unemployment is not required.

4.3: If the Answer to Question 2 Is Negative, What Income IsAppropriately Imputed in the Circumstances?

14 I find that imputing an income of $50,000 per year is reasonableunder the circum-stances. This figure is based on his last salary of$54,000 in 2006 and the Job Canada evidence presented by the motherthat the majority of automotive mechanics in the greater Toronto areamake between $53,000 and $66,000 per year.

15 Thus, I find that the mother has successfully demonstrated on a bal-ance of probabilities that an income of $50,000 per year ought to be im-puted to the father.

5: The Order16 The court orders as follows:

1. Sole custody to the applicant mother.

2. The applicant mother may obtain, retain and renew passports andother travel documents for the child, and may travel with, or au-thorize travel for, the child without requiring the consent of therespondent father.

3. The respondent father shall pay child support of $462 per monthcommencing on 14 October 2009 and on the 14th of every month


thereafter based on an imputed annual income of $50,000 and theChild Support Guidelines for one child. Any arrears created as aresult of this order shall be paid at the rate of $100 per monthcommencing on 14 July 2011 until paid in full. Support deductionorder to issue.

17 The parties may make submissions regarding costs to the court inwriting (no more than five pages) within 15 days.


Daley v. Ivey 485

[Indexed as: Daley v. Ivey]

Jacqueline Daley (Respondent) and Lancelot Ivey (Appellant)


Docket: 1034/10

2011 ONSC 6923

Lemon J.

Heard: November 21, 2011

Judgment: November 23, 2011

Family law –––– Support — Child support under federal and provincialguidelines — Determination of spouse’s annual income — Imputed in-come — Deliberately unemployed or under-employed –––– Parties werenever married, nor did they ever live together, and had one child — Father livedwith his wife and four children — In 2006, father’s employment was termi-nated — Father claimed that he had not worked outside home since his termina-tion and cared for his four-year-old twins — Father’s wife earned $75,000 in2008 — Mother was on social assistance, receiving approximately $16,444 peryear — Mother’s application for child support proceeded, on parties’ consent,on affidavit and documentary evidence filed, and on counsels’ submissions —Trial judge allowed mother’s application and ordered father to pay child supportof $462 per month from October 2009, based on imputing father with annualincome of $50,000, as father voluntarily decided not to seek work followingtermination and it was cost-effective for father to work and put children in day-care — Father appealed, filing Notice of Appeal, but neither factum, transcript,nor Appeal Record — Appeal dismissed — Taxpayer was essentially re-arguingcase made before trial judge for change in child support — Appeal court couldonly interfere with lower court decision if there was error of law or fact, butfather could point to no such error in trial judge’s decision — While there mightbe grounds of appeal based on what occurred at hearing, that determinationcould not be made without transcript — Trial judge’s endorsement notes indi-cated that parties agreed to conduct trial of child support issue solely on affidavitand documentary evidence filed and counsel’s submissions — Proceedings wereapparently based only on continuing record and document brief and, based oncontents of that file, trial judge did not appear to have made any error in herfindings of fact.

Family law –––– Support — Child support under federal and provincialguidelines — Practice and procedure — General principles –––– Filing oftranscript on appeal — Parties were never married, nor did they ever live to-gether, and had one child — Father lived with his wife and four children — In


2006, father’s employment was terminated — Father claimed that he had notworked outside home since his termination and cared for his four-year-oldtwins — Father’s wife earned $75,000 in 2008 — Mother was on social assis-tance, receiving approximately $16,444 per year — Mother’s application forchild support proceeded, on parties’ consent, on affidavit and documentary evi-dence filed, and on counsels’ submissions — Trial judge allowed mother’s ap-plication and ordered father to pay child support of $462 per month from Octo-ber 2009, based on imputing father with annual income of $50,000, as fathervoluntarily decided not to seek work following termination and it was cost-ef-fective for father to work and put children in daycare — Father appealed, filingNotice of Appeal, but neither factum, transcript, nor Appeal Record — Appealdismissed — Taxpayer was essentially re-arguing case made before trial judgefor change in child support — Appeal court could only interfere with lowercourt decision if there was error of law or fact, but father could point to no sucherror in trial judge’s decision — While there might be grounds of appeal basedon what occurred at hearing, that determination could not be made without tran-script — Proceedings were apparently based only on continuing record and doc-ument brief and, based on contents of that file, trial judge did not appear to havemade any error in her findings of fact.

Civil practice and procedure –––– Practice on appeal — Appeal book —Contents — General principles –––– Filing of transcript on appeal — Partieswere never married, nor did they ever live together, and had one child — Fatherlived with his wife and four children — In 2006, father’s employment was ter-minated — Father claimed that he had not worked outside home since his termi-nation and cared for his four-year-old twins — Father’s wife earned $75,000 in2008 — Mother was on social assistance, receiving approximately $16,444 peryear — Mother’s application for child support proceeded, on parties’ consent,on affidavit and documentary evidence filed, and on counsels’ submissions —Trial judge allowed mother’s application and ordered father to pay child supportof $462 per month from October 2009, based on imputing father with annualincome of $50,000, as father voluntarily decided not to seek work followingtermination and it was cost-effective for father to work and put children in day-care — Father appealed, filing Notice of Appeal, but neither factum, transcript,nor Appeal Record — Appeal dismissed — Taxpayer was essentially re-arguingcase made before trial judge for change in child support — Appeal court couldonly interfere with lower court decision if there was error of law or fact, butfather could point to no such error in trial judge’s decision — While there mightbe grounds of appeal based on what occurred at hearing, that determinationcould not be made without transcript — Proceedings were apparently based only

Daley v. Ivey Lemon J. 487

on continuing record and document brief and, based on contents of that file, trialjudge did not appear to have made any error in her findings of fact.

APPEAL from judgment reported at Daley v. Ivey (2011), 2011 CarswellOnt6228, 2011 ONCJ 351, 5 R.F.L. (7th) 478 (Ont. C.J.).

Jacqueline Daley, for herselfLancelot Ivey, for himself

Lemon J.:

1 Mr. Ivey appeals the decision of Madam Justice Pawagi dated July 7,2011.

2 Although he has filed a Notice of Appeal, Mr. Ivey has not filed afactum, a transcript or an Appeal Record. At the beginning of the hear-ing, he told me that he was confident that those documents would notassist his appeal but that his issues were adequately set out in his Noticeof Appeal.

3 In his Notice of Appeal, Mr. Ivey essentially reargues the case thatwas made before Justice Pawagi. In his submissions he asks that the sup-port order be changed to a “fair” and “reasonable” amount.

4 An appeal court will only intervene with a lower court decision ifthere has been an error of law or fact. Mr. Ivey can point to no error offact or law in Justice Pawagi’s decision. I have reviewed her written rea-sons. I can find no error in her findings or her application of the law.

5 While there may, perhaps, be grounds of appeal based on what oc-curred at the hearing, I cannot make that determination because I havenot received a transcript of the hearing. Mr. Ivey wished to proceed with-out one.

6 Justice Pawagi’s endorsement notes that “Parties agreed to conduct atrial of an issue regarding child support solely on affidavit and documen-tary evidence filed and submissions by counsel”. If exhibits were filed, Ido not have them before me. From a review of the provincial court file, itappears that the proceedings were based only on the continuing recordand a document brief. From my review of the contents of that file, it doesnot appear that Justice Pawagi made any error in her findings of fact.

7 Without such errors, the appeal must be dismissed.

Appeal dismissed.


[Indexed as: Morrow v. Lively]

In the Matter of an Application to Vary a Support Orderpursuant to Section 77(5) of the Family Law Act

Allison Morrow (Applicant) and Randy Lively (Respondent)

Alberta Provincial Court

Docket: Stony Plain 101138543F101001

2011 ABPC 211

M.J. Burch Prov. J.

Heard: March 11, 2011


Family law –––– Support — Spousal support under Divorce Act and provin-cial statutes — Variation or termination — Duty to become self-suffi-cient –––– Parties married in 1993, had one child, and separated in 2004 — Twoyears prior to marriage, wife went on long-term disability, and did not workthroughout marriage — In 2007, parties consented to order providing that hus-band pay wife spousal support of $800 per month — Husband’s income tax re-turns indicated 2007, 2008, 2009 incomes of $78,317.12, $88,707.84, and$76,462 respectively, and his 2010 income was projected to be $69.451.20 —Wife’s tax free income was fixed at $33,462 over relevant period — Husbandpaid child support of $780 per month and 73 per cent of child’s extraordinaryexpenses — Wife brought application to vary order — Application dismissed —No circumstances existed to set aside parties’ agreed arrangements in favour ofincrease in payments to wife — Parties’ arrangements were in substantial com-pliance with objectives of Family Law Act — Wife had much better standard ofliving during marriage than she would have done had she not married, but shedid not adversely affect her income earning potential by marrying — Wife had,however, experienced economic hardship as result of marriage breakdown, andwas not expected to work again — Parties’ current financial means were similar.

Family law –––– Domestic contracts and settlements — Variation ofterms — General principles –––– Parties married in 1993, had one child, andseparated in 2004 — Two years prior to marriage, wife went on long-term disa-bility, and did not work throughout marriage — In 2007, parties consented toorder providing that husband pay wife spousal support of $800 per month —Husband’s income tax returns indicated 2007, 2008, 2009 incomes of$78,317.12, $88,707.84, and $76,462 respectively, and his 2010 income wasprojected to be $69.451.20 — Wife’s tax free income was fixed at $33,462 overrelevant period — Husband paid child support of $780 per month and 73 percent of child’s extraordinary expenses — Wife brought application to vary or-

Morrow v. Lively 489

der — Application dismissed — No circumstances existed to set aside parties’agreed arrangements in favour of increase in payments to wife — Parties’ ar-rangements were in substantial compliance with objectives of Family LawAct — Wife had much better standard of living during marriage than she wouldhave done had she not married, but she did not adversely affect her income earn-ing potential by marrying — Wife had, however, experienced economic hard-ship as result of marriage breakdown, and was not expected to work again —Parties’ current financial means were similar.

Cases considered by M.J. Burch Prov. J.:

Bennett v. Bennett (2005), [2006] 9 W.W.R. 62, 2005 ABQB 984, 2005CarswellAlta 1994, 22 R.F.L. (6th) 399, 57 Alta. L.R. (4th) 380, [2005] A.J.No. 1824 (Alta. Q.B.) — considered

Bracklow v. Bracklow (1999), 1999 CarswellBC 532, 1999 CarswellBC 533,169 D.L.R. (4th) 577, 236 N.R. 79, 44 R.F.L. (4th) 1, 120 B.C.A.C. 211, 196W.A.C. 211, [1999] 1 S.C.R. 420, [1999] 8 W.W.R. 740, 63 B.C.L.R. (3d)77, [1999] S.C.J. No. 14 (S.C.C.) — considered

Culen v. McInnes (2009), 2009 CarswellAlta 1764, 2009 ABQB 624 (Alta.Q.B.) — distinguished

Miglin v. Miglin (2003), 2003 SCC 24, 2003 CarswellOnt 1374, 2003 Carswell-Ont 1375, 224 D.L.R. (4th) 193, 34 R.F.L. (5th) 255, 66 O.R. (3d) 736(note), [2003] 1 S.C.R. 303, 171 O.A.C. 201, 302 N.R. 201, REJB 2003-40012, [2003] S.C.J. No. 21 (S.C.C.) — followed

Moge v. Moge (1992), [1993] R.D.F. 168, [1993] 1 W.W.R. 481, 99 D.L.R.(4th) 456, [1992] 3 S.C.R. 813, 81 Man. R. (2d) 161, 30 W.A.C. 161, 43R.F.L. (3d) 345, 145 N.R. 1, 1992 CarswellMan 143, 1992 CarswellMan222, [1992] S.C.J. No. 107, EYB 1992-67141 (S.C.C.) — followed

Willick v. Willick (1994), 6 R.F.L. (4th) 161, 119 D.L.R. (4th) 405, 173 N.R.321, 125 Sask. R. 81, 81 W.A.C. 81, [1994] 3 S.C.R. 670, [1994] R.D.F.617, 1994 CarswellSask 48, 1994 CarswellSask 450, [1994] S.C.J. No. 94,EYB 1994-67936 (S.C.C.) — considered


Family Law Act, S.A. 2003, c. F-4.5Generally — referred tos. 58 — considereds. 60 — considered

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)Generally — referred to

APPLICATION by wife for variation of spousal support.

No one for ApplicantR. Tropak, for Respondent


M.J. Burch Prov. J.:

1 The Applicant, Allison Morrow, currently 44 years old, married theRespondent, Randy Lively, currently 50 years old, on June 12th, 1993.She had been an employee of the Alberta Government for many yearsprior, but, as she stated that she has been on disability for twenty years, Ibelieve it would have been two years before the wedding that she hadgone on long term disability. She received it throughout the marriage.Mr. Lively had a son from a previous relationship who did not live withthem. The parties had a daughter, Ashlee Lively, born in December1993. Mr. Lively worked throughout the marriage.

2 The parties separated on November 13th of 2004. The marriage hadendured for about eleven and a half years. Although the parties are notyet divorced, they have been involved in divorce proceedings and Pro-vincial Court support applications over the last many years. Child Sup-port Orders and Adult Interdependent Partner Support Orders have beenput in place by the Court of Queen’s Bench for the former and the Pro-vincial Court for the latter. The matrimonial property issues have beensettled between them.

3 The most recent Adult Interdependent Partner Support Order appliedfor and granted by this Court was dated June 8th 2007. Both parties wereself-represented and the order was consented to by them. The Order wasin “confirmation of the parties agreement respecting the matters in ques-tion.” It called for an annual provision of income tax information andother proof of income by Mr. Lively to Ms. Morrow on no fixed date. Italso provided that Mr. Lively pay to Ms. Morrow the sum of $800.00 permonth on the first day of each month beginning on July 1st 2007. TheOrder was to remain in effect until further Order of the Court. A ChildSupport Order for Ashlee was granted on November 9th 2007, retroac-tively effective as at the 1st of July 2007 requiring a monthly paymentfrom Mr. Lively for Ashlee’s support of $430.00. It has since been variedby the Court of Queen’s Bench on November 26th 2009 in a ConsentVariation Order in the divorce action and following a Child Support Res-olution Meeting on November 23rd 2009. Mr. Lively currently pays forAshlee’s support, the sum of $780.00 per month and 73% of Section 7expenses. Retroactive support of $4186.00 for July 2008 to November2009 was also awarded to be repaid over 25 months. An annual exchangeof financial information was directed to be made by the end of June eachyear.

Morrow v. Lively M.J. Burch Prov. J. 491

4 This application does not address Child Support, but the collateral fi-nancial responsibilities of the Respondent for such are relevant in thismatter. The application was brought on September of 2010, less than oneyear after the last Court Order regarding financial obligations for Mr.Lively and after the first exchange of financial information followingsuch amended order. Ms. Morrow claims that Mr. Lively’s income haschanged, that her health has changed and that her household expenseshave changed. Her income has not changed. She is on a fixed disabilitypension and her income for 2008, 2009, 2010 and projected for 2011 is$33,462.00. Due to a series of tax credit programmes, she pays no in-come tax on this pension.

5 The evidence with respect to her health is that she suffers fromCrohn’s Disease and has done so for many years, predating the marriage.Her condition has steadily worsened, both during the period of her co-habitation with Mr. Lively and since. She gave evidence that she has hadeleven surgeries since the separation. She fears that she may need in-home care in the near future and the assistance she has received from heraging parents is not going to be available due to their declining health.There are no new illnesses not associated with her previous diagnosis(which was known to all parties in 2007), just a deterioration in herhealth. She has been placed on new and experimental drug regimes,some of which were not covered by Albert Blue Cross and some ofwhich required the acquisition of additional Blue Cross coverage.

6 The evidence with respect to the increased household expenses forMs. Morrow was set out in her Estimated Monthly Budget filed with herapplication. She pointed particularly to an increase in her Blue Crosspayments, gas and oil for her car as she now drives her daughter to workin Edmonton, and a general increase in all other payments described as“increases in the cost of living.” Ashlee is at a particularly expensivestage of her life as she is now in Grade Twelve and has expenses associ-ated with her graduation.

7 Ms. Morrow alleged an increase in Mr. Lively’s income from sourcesother than the reported information. From his filed tax returns or noticesof assessment, his 2007 income was $78,317.12, his 2008 income was$88,707.84, and his 2009 income was $76,462.00. For 2010, he has pro-vided a letter from his employer which stated that he makes an hourlywage of $33.39 with an estimated annual income of $69.451.20, from173.33 regular days of work per year.


8 Ms. Morrow was of the belief that Mr. Lively received income fromsources other than his employment, specifically, from his son Shane pay-ing rent or room and board in the past two years. Shane does live withMr. Lively. He is 22 years old and is the recipient of AISH (AssuredIncome for the Severely Handicapped) in the amount of $1188.00 permonth. He has lived with his father for five years and has received AISHfor all of that time. Both he and Mr. Lively testified that he does not payany rent or room and board to his father. He did get kicked out of thehome and went to Ms. Morrow for a month or two, but he does not recalltelling her that he paid Mr. Lively rent. I find that he does not, althoughhe should.

9 Mr. Lively has responded to Ms. Morrow’s request for a review andincrease in the Support payments he pays to her by requesting annualreviews which would effect an adjustment of the payments based uponhis income. In his presentation in Court he further asked that the pay-ments be limited to an appropriate time frame, given the limited span ofthe relationship (eleven years). He urged the Court to consider the termsof the June 8th, 2007 order which did not call for any variation, althoughit did provide for him to give Ms. Morrow information on his income onan annual basis. He cited the case of Miglin v. Miglin, [2003] 1 S.C.R.303 (S.C.C.), as authority for the position that agreements negotiated andconcluded with the intent that they be final should not be over-ridden,and that the objective of the Divorce Act (which is parallelled by theAlberta Family Law Act) in addressing financial outcomes is to supportcertainty, finality and negotiated (rather than Court ordered) settlements.The parties each were self-represented at the time of the June 8th 2007consent order for Adult Interdependent Support, which reflected theterms of their agreement. The matrimonial property issues had been dealtwith separately and apparently to each parties’ satisfaction. The matter ofchild support was also separately addressed, but payments had beenongoing since the separation and an increase was under discussion, final-ized some months later and made retroactive to June 8th.

10 The Spousal Support Advisory Guidelines appended to the FederalChild Support Guidelines provide an indicator of the amount of supportwhich the Courts could find to be appropriate in a variety of circum-stances but they are not directive and lack the responsiveness to variablesituations. While there are countless scenarios that can be plugged in tothe formulae, even with Mr. Lively’s highest income level since 2007,($88,000 in the one year, 2008), the suggested spousal support in theguidelines is not as high as $800. That sum was clearly agreed upon by


Mr. Lively and Ms. Morrow taking into consideration the circumstancesof the parties at the time of the agreement. Ms. Morrow was disabled andon a fixed disability income. She was never going to become less able toearn an income and she was not contemplated ever to become able toearn any income. She was suffering from Crohn’s Disease and had multi-ple complications, had required surgeries and took many different medi-cations. Those circumstances have not changed. She is still disabled fromincome earning and still requires medications. The fact that the amountof support payment was reached by agreement is important. As the head-note in Miglin stated, “The Court should set aside the wishes of the par-ties as expressed in a pre-existing agreement only where that agreementfails to be in substantial compliance with the overall objectives of theAct, including certainty, finality and autonomy.”

11 In reviewing whether the Support Order from 2007 should be varied,it is of concern to the Court to know whether its terms, again quotingfrom Miglin “still reflects the original intention of the parties and theextent to which it is still in substantial compliance with the objectives ofthe [Family Law] Act.” The Supreme Court of Canada held in Miglinthat “the party seeking to set aside the agreement will need to show thatthese new circumstances were not reasonably anticipated by the parties,and have led to a situation that cannot be condoned. Some degree ofchange in the circumstances of the parties is always foreseeable, asagreements are prospective in nature. Parties are presumed to be awarethat health, job markets, parental responsibilities, housing markets, andvalues of assets are all subject to change. It is only where the currentcircumstances represent a significant departure from the range of reason-able outcomes anticipated by the parties...that the court will be persuadedto give the agreement little weight.” The Miglin decision postdatedWillick v. Willick, [1994] 3 S.C.R. 670 (S.C.C.), but reinforced the rulingexpressed there. To vary a support order, “there must be a materialchange of circumstances, that is, a change that, if known at the time,would likely have resulted in different terms. If the matter which is reliedon as constituting a change was known at the relevant time it thus cannotbe relied on as the basis for variation.” Ms. Morrow’s declining healthwas a circumstance which certainly was an outcome which could havebeen and should have been considered by the parties at the time of theinitial support order. The fact that the order was not time limited is seenby this Court as an indication that the parties recognized Ms. Morrow’sstatic state as far as income earning was concerned - she would have herdisability pension and there was no possibility of her deriving income


from other sources so she would always need additional support. Her sit-uation in that regard has not changed since 2007.

12 The financial position that the parties now find themselves in is notgreatly disparate. According to the letter from his long time employer,Mr. Lively can rely upon an income of about $70,000 per year. There isno contention that he is underemployed. He is taxed on that income. Hehas child support obligations of $780 per month, plus 73% of section 7expenses and has Adult Interdependent Partner support obligations of$800 per month. Ms. Morrow has an annual income of $33,462 from herpension and the $1580 + per month that she receives from Mr. Lively forchild support and Adult Interdependent Partner support. She does not paytax on the pension amount. She receives a greater net amount of moneythan does Mr. Lively. She does have additional expenses because she isthe day to day care giver for their child Ashlee. The circumstances of theparties in no way appears to be unfair at this point in time. Their respec-tive budgets as provided to the Court indicate that both parties areplagued with debt and spend beyond their monthly incomes, but neitherhave areas where they are misspending or diverting funds. Mr. Lively isthe only party with the opportunity to increase his income by workingovertime, but the availability of such work is not guaranteed nor is itsomething that the Court would order that he do. He has paid in excess ofwhat his obligation to pay might have been over the past four years. Hehas agreed to do so indefinitely.

13 In making the decision regarding a variation to the existing Adult In-terdependent Partner Support Order, I am guided by section 58 of theFamily Law Act-which sets out the factors to be considered and by sec-tion 60 which sets out the objectives of Adult Interdependent PartnerSupport. Moge v. Moge, [1992] 3 S.C.R. 813 (S.C.C.) at paragraph 77sets out that all four objectives defined by the [Divorce] Act, [which isparallelled by the Family Law Act] must be taken into account whenspousal support is claimed or an order for spousal support is sought to bevaried. No single objective is paramount. Later, in Bracklow v.Bracklow, [1999] 1 S.C.R. 420 (S.C.C.) at paragraph 32, McLachlin C.J.pointed out that one model of spousal support cannot cover all situa-tions...The most salient feature of the spousal support provisions in theDivorce Act is that of balance. Every factor is balanced by another factor.

14 In looking at the conditions, means, needs and other circumstances ofthe parties, “the underlying philosophy of the Act is the fair and equita-ble distribution of resources to alleviate the economic consequences of


marriage or marriage breakdown.” Bennett v. Bennett (2005), [2006] 9W.W.R. 62 (Alta. Q.B.), Langstrom J. At para. 33. Ms. Morrow was inreceipt of her disability pension at the time of the marriage and duringthe marriage enjoyed the benefit of sharing Mr. Lively’s greater incomewith him. She had a much better standard of living than she would havedone had she not married, but she did not adversely affect her own in-come earning potential by marrying. She has suffered economic hardshipas a result of the marriage breakdown. This case is distinguishable fromCulen v. McInnes, 2009 ABQB 624 (Alta. Q.B.) Burrows J.,becauseLively and Morrow formed a single economic unit and Morrow does nothave independent means sufficient to cover her needs. It is the objectiveof an Adult Interdependent Partner Support Order to recognize any eco-nomic disadvantage to the recipient spouse arising from the relationshipor its breakdown. The consequences of the breakup should be appor-tioned equally between the spouses or partners. Moge v. Moge also setout that the focus on balancing the income should be on post-maritalneed if the breakdown of the marriage has created economic hardship forone or the other, the judge must attempt to grant relief from that hardship(para. 111). It is not applicable in this case to promote the economic selfsufficiency of Ms. Morrow within a reasonable period of time as she isnever going to become able to earn a living again.

15 This Court must also look at whether the Consent Order of June 8th,2007 should be overridden or varied. In many ways a Consent Order islike an agreement. While previously the law considered that “there werefour circumstances any one of which had to exist to support an override”(2010 Annotated Alberta Family Law Act p.142), the Supreme Court ofCanada decision in Miglin in 2003 set out a new two step approach to betaken by the courts in the exercise of discretion relating to an applicationfor spousal support inconsistent with a pre-existing agreement betweenthe parties.

First, the Court must look to the circumstances in which the agree-ment was negotiated to determine whether there is any reason to dis-count it. The Court must also determine whether or not at the time ofcreation of the agreement there was substantial compliance with thegeneral objectives of the Act.

Second, the Court must assess the extent to which enforcement of theagreement still reflects the original intention of the parties and theextent to which it is still in substantial compliance with the objectivesof the Act, given the vicissitudes of life in the parties’ post- divorceperiod. Where a comprehensive agreement has been unimpeachably


negotiated and is in substantial compliance with the objectives of theAct, the Court should give it considerable weight. It is only where thecurrent circumstances represent a significant departure from therange of reasonable outcomes anticipated by the parties, in a mannerthat puts them at odds with the objective of the Act, that the Courtshould give the agreement little weight.

16 The Consent Order is not a comprehensive agreement and was notunimpeachably negotiated as both parties appear to have been unrepre-sented at the time it was presented to the Court. It did, however, form apart of a more comprehensive settlement arrangement which unfoldedthrough several means - negotiated settlement of matrimonial propertyissues, mediated agreement re: child support and court supported ar-rangements for spousal support payments. In totality, the parties’ ar-rangements were in substantial compliance with the objectives of theFamily Law Act. I do not find that the circumstances exist to set asidethe parties’ agreed arrangements in favour of an increase in payments toMs. Morrow.

17 Mr. Lively requested that the Court consider setting a time limit forhis obligation to pay the Adult Interdependent Partner Support paymentswhich he was ordered to pay. Following the same reasoning, that the par-ties were free to set their obligations and entitlements within the limits ofmeeting the objectives of the Family Law Act, unless there has been asubstantial change in circumstances, I am also not prepared to change theindefinite nature of the arrangements. Mr. Lively knew of Ms. Morrow’spermanent need for support due to her disabilities and did not limit hisobligations in the first instance. He cannot do so now.

18 The application for a variation in support is denied as is the crossapplication for a limit on the time for payment of the support. Ms. Mor-row has brought this application unsuccessfully and Mr. Lively has beenput to considerable expense both of his lost time at work and his legalcosts. While it in no way reflects the actual cost to him, I am awardinghim some small measure of costs in this matter as the application was socompletely without merit almost to the point of being vexatious. Ms.Morrow is ordered to pay costs to Mr. Lively in the sum of $500.00


Marsh v. Gibson 497

[Indexed as: Marsh v. Gibson]

Andrea Marsh, Applicant (mother) and Mark Gibson,Respondent (father)


Docket: Toronto D51424/10

R.J. Spence J.

Heard: March 29, 2011

Judgment: April 1, 2011

Family law –––– Support — Child support under federal and provincialguidelines — Determination of award amount — Child care expenses ––––Parties did not marry or live together — Parties had one child who was 17months old at time of hearing — Parties had consented to mother having solecustody — Mother worked as emergency room nurse and completed 12-hourshifts, and required child care throughout week — Mother applied for order re-quiring father to contribute proportionate share of childcare expenses — Appli-cation granted — Mother employed live-out nanny and expected to pay approxi-mately half of nanny’s expenses based on her income — Mother’s expenseswere reasonable except for overtime hours paid to nanny, which could be cov-ered less expensively by employing second caregiver — Expenses were neces-sary so that mother could maintain employment — Reasonable expenses were tobe shared proportionally by parties — Expenses were included in total supportamount of $2,281 per month.



s. 7 — considereds. 7(1)(a) — considereds. 7(2) — consideredSched. I, s. 4(a) — referred to

APPLICATION by mother for child support relating to childcare expenses.

Ms Susan Harris, for ApplicantMs Barbara Puckering, for Respondent


R.J. Spence J.:

1 The narrow issue in this case is the amount of support the fathershould be required to contribute pursuant to section 7 of the Child Sup-port Guidelines (“Guidelines”) for nanny/childcare expenses, incurred bythe mother.

2 On November 1, 2010, the parties consented to an order granting solecustody to the mother. That order is silent as to access.

3 In order to resolve the nanny expense issue, the court must first de-cide the following:

1. The respective incomes of the parties,

2. The actual nanny expense incurred — or likely to be incurred bythe mother, and

3. Whether it is reasonable for the father to contribute his propor-tional share of that actual expense, or whether he should be con-tributing some lesser amount.

Background4 The child (Owen) is approximately 17 months old. He was born as a

result of a brief relationship between the parents. The parties never mar-ried; nor did they live together.

5 The father works as a paramedic for the City of Toronto. The motherworks as an emergency room nurse for Sunnybrook Health SciencesCentre.

6 It is not disputed that for the purposes of calculating support, the fa-ther’s annual income is approximately $97,519 per year. As a result, thefather has agreed to pay the Guideline table support of $857 per month.He has also agreed to pay his proportionate share of the mother’s medi-cal/dental plan in respect of the child, amounting to $648 per year, andthe Blood Cord banking cost of $177 per year.

The law7 The court’s jurisdiction to order the father to contribute to the nanny

expenses arises from section 7 of the Guidelines, which provides, in part[my emphasis]

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on therequest of either parent or spouse or of an applicant under section 33

Marsh v. Gibson R.J. Spence J. 499

of the Act, provide for an amount to cover all or any portion of thefollowing expenses, which expenses may be estimated, taking intoaccount the necessity of the expense in relation to the child’s bestinterests and the reasonableness of the expense in relation to themeans of the parents or spouses and those of the child and to thespending pattern of the parents or spouses in respect of the child dur-ing cohabitation:

(a) child care expenses incurred as a result of the custodialparent’s employment, illness, disability or education ortraining for employment;

. . .

Sharing of expense

(2) The guiding principle in determining the amount of an expensereferred to in subsection (1) is that the expense is shared by the par-ents or spouses in proportion to their respective incomes after deduct-ing from the expense, the contribution, if any, from the child. O. Reg.391/97, s. 7 (2).

Mother’s Income8 Mother argues that for the purposes of determining section 7 ex-

penses, I should impute her income at approximately $82,000 per year.She bases this on the letter from her employer which states that “hergross monthly salary is $6,776 ($41.70 hourly)”. Father argues her in-come should be imputed at a much higher level given her history of over-time, as well as the evidence of how much she has earned so far in2011.1 I have concluded that the best evidence of mother’s likely incomefor 2011 is her income to date for 2011, extrapolated over the entire year.For her pay period ending March 18, 2011, mother earned gross incomeof $21,763, covering six two-week pay periods, or an average of $1,813per week. This extrapolates to approximately $94,306 per year. For pur-poses of deciding the issue before me, I impute this amount to mother onan annual basis.2

1The parties agree that I am unable to base mother’s current income on her totalearned for 2010 as her income for 2010 was a combination of salary and em-ployment insurance benefits2The parties will be able to adjust on a annual basis based on their actual in-comes once these are known each year


9 Father’s proportionate share of the total incomes of the parties is al-most 51% ($97,519 divided by $191,825).3

The nanny expenses10 Mother works a difficult and complicated 6-week shift rotation at

Sunnybrook Hospital. These generally consist of 12-hour shifts rotatingamong days, nights and weekends. However, these shifts are not necessa-rily predictable and can result in overtime requirements. Accordingly,she must have a degree of flexibility when it comes to her child carearrangements. Compounding this is the fact that she may arrive homeearly in the morning, after being absent from Owen for 13 or 14 hours(including travel time), and then go straight to sleep for 8 or 9 hours.This necessitates continuing child care, as mother is sleeping whileOwen is awake and active.

11 The parties each filed extensive documentation on what each expectsthe nanny expenses should be on a go-forward basis. In the mother’scase, she estimates that the total annual cost of a live-out nanny will be$41,500 per year. The father accepts that a nanny, or child care expense,is a necessary expense as defined by section 7, but he argues that thereare less costly alternatives than what mother has proposed. He would bewilling to pay his proportionate share of an annual childcare expense inthe range of $20,000 to $25,000.

12 Father argues that mother is free to make whatever arrangements shewishes for Owen’s care, but his own obligation to contribute should belimited to what is “reasonable” as defined in section 7 of the Guidelines.I agree with that argument.

13 The mother conducted very extensive research, including interviewswith potential caregivers and discussions with various agencies to ascer-tain what might work for Owen and the costs involved. The father hadsuggested that a live-in caregiver might be less costly than the live-outoption chosen by mother. There appears to be pros and cons of both op-tions. The pros and cons include financial considerations, but they alsoinclude such things as whether a nanny is willing to work the difficulthours which are required, and the need to have reliable and dependabledaycare which mother can count on.

3That is, the total of the two incomes - $97,519 + $94,306. See the Divorcematecalculation appended to these reasons


14 Based on the evidence, I am not satisfied that a live-in nanny wouldin fact be a less expensive option, after taking into account the additionalcosts of food, utilities, furnishings and agency fees. As well, because ofthe complexity of mother’s schedule, a live-in nanny would have to agreeto work very extensive hours, failing which she would be free to leaveher employment, necessitating a renewed search by mother for childcare. This renewed search would not only disrupt her childcare arrange-ments, and possibly place her job in jeopardy, but it would also result infurther nanny agency fees being incurred by mother.

15 On the father’s own evidence4 mother requires child care for 346hours during each six-week period. Week #1 requires 90 hours of childcare, and week #6 requires 67 hours of child care, with the other fourweeks ranging from 40.5 hours to 54 hours per week.

16 The most serious complication is that weeks #6 and #1 run back-to-back and require a total of 157 hours of childcare over a two-week pe-riod. There are legal restrictions dealing with overtime, including theneed for an employee to consent to working these kinds of hours. Conse-quently, mother had had to juggle these considerations, as well as theother financial considerations in coming to the option which she ulti-mately chose.

17 The live-out nanny (“Christine”) who mother did hire to care forOwen, is an Early Childhood Educator (“ECE”). Christine deposes thatlive-out nannies with ECE qualifications can generally expect to be paidin the range of $12-$16 per hour. However, Christine has agreed to workfor a pay rate of $12 per hour, and $18 per hour for hours worked inexcess of 88 hours bi-weekly.

18 Mother’s research has been exhaustive. In the circumstances, I am notprepared to second-guess mother’s research, and her ultimate decisionregarding the appropriateness of a live-out nanny versus a live-in nanny.I might have taken a different view if the income differential between theparties was so great that the mother’s expectation was that she couldpurchase the “Cadillac” of daycare knowing that the father would have topay for most of that expense. However, in these circumstances, wheremother will be paying for essentially one-half of this expense, it is not inher own financial interests to take on a more expensive option if a lesscostly option would work equally as well for her and for Owen.

4Per the “Actual Shift schedule” filed by father during the course of argument


19 That said, I am not persuaded that it is reasonable to expect father topay for overtime at the rate of $18 per hour for non-specialized childcare.5 It is this overtime component which appears to substantially add tothe overall cost of childcare. I am not critical of mother’s decision to hireChristine; nor am I critical of Christine herself for seeking time-and-a-half for overtime beyond 88 hours bi-weekly. Nevertheless, in my view itis reasonable to believe that mother could arrange for that overtime com-ponent to be covered by a second caregiver at the rate of $12 per hour.That is not to say that mother is not free to make whatever arrangementsshe wishes, including having only one caregiver, and including payingthat caregiver $18 per hour for a portion of the childcare. Rather, theissue is about what is reasonable in the circumstances, in terms of fa-ther’s requirement to contribute to the childcare expenses.

20 Accordingly, I do not accept mother’s calculation of $41,500 as anannual cost for which father should be required to contribute proportion-ally. Nor do I accept father’s range of between $20,000 and $25,000. Hisfigures are unrealistic in the unique circumstances of this case. Instead, Itake the total number of hours per six-week period (346) required forchildcare, and multiply that by a rate of $12 per hour, for a total of$4,152 per 6-week period. That comes to $35,984 per year for child carecosts. I recognize that this amount, while much less than the $41,500proposed by mother, is still not an inconsiderable cost for childcare.However, that cost must be weighed in the context of an annual com-bined income of over $190,000. Further, in the life of this child, it willremain at that level for a relatively short period of time, until Owen is inschool fulltime, at or around the age of five years, at which time thechildcare costs should begin to decline appreciably.

21 As I noted earlier, section 7 expense contributions may be ordered bythe court having regard to the necessity of the expense in relation to thechild’s best interests and the reasonableness of the expense in relation tothe means of the parents. The guiding principle is always that the ex-pense is to be shared in proportion to the parties’ respective incomes.

22 Based on the foregoing, I have concluded the following:

5While Christine is a “specialist” in the sense that she has an ECE certificate, itis not suggested that Owen requires this level of specialization simply for thepurpose of meeting his daycare needs


1. The nanny expense is necessary to enable the mother to performher employment duties;6

2. A reasonable amount for that expense, for apportionment pur-poses, is $35,984 per year; and

3. I see no reason to depart from the guiding principle set out in sec-tion 7 of the Guidelines, that the daycare costs should be sharedproportionally by the parents. Specifically, I would not require thefather to pay less than his proportionate share of $35,984. In thatregard, I rely also on my observations set out in the following par-agraph of my reasons.

23 In considering the “means” of the father, and in the overall exerciseof my discretion, I take into account not only the absolute number ofdollars he earns on an annual basis, but the fact that he would appear tohave no unusual or burdensome expenses for which he is responsible. Infact, when he filed his financial statement, he specifically declined todisclose his expenses, setting out only his income and assets. I infer fromthat non-disclosure that he has only himself to support, as well as mini-mal other financial obligations.7

24 While counsel did provide me with a number of Divorcemate calcula-tions, I was not provided with any calculations which incorporate the in-come and childcare figures I have arrived at in these reasons. As a result,I have had to use those figures in my own Divorcemate calculations,which I attach as Appendix “A” to my reasons. As the calculations re-veal, the father is to pay a total $2,281 per month for child support, madeup as follows:

1. Table support - $857; and

2. Nanny expenses, Cord blood banking and medical healthinsurance - $1,424

6The necessity issue was not contested by the father7I do not mean to suggest that my conclusion would have been different had thefather listed all of his expenses, or even if his expenses revealed that he wasresponsible for the support of one or more other persons. Instead, in the exerciseof my discretion, it does not appear that the father is under any financial hard-ship which might otherwise persuade me to depart from the guiding principle setout in section 7 of the Guidelines


Conclusion

25 1. Commencing September 1, 2010, the father shall pay to themother, for the support of Owen, the sum of $2,281 per month,with credit to the father for amounts paid by him pursuant to myorder dated November 1, 2010.

2. On or before June 1st each year, and for so long as mother seekscontribution toward section 7 expenses, the parties are to makefull reciprocal financial disclosure, including reasonable docu-mentation verifying the expenditures incurred by mother in re-spect of section 7 expenses.

3. At such time as mother no longer seeks contribution toward sec-tion 7 expenses, on or before June 1st each year father is to makefull financial disclosure to mother.

26 These orders are in addition to the orders I made at the outset of argu-ment pursuant to the consent filed by the parties on March 29, 2011.

27 In the event I have made any arithmetic miscalculations, the partiesare to contact me by 14B, within 10 days of the date of the release of thisdecision, with the necessary corrections, so that I may make the neededadjustments to my order.

28 Should either party wish to make costs submissions, these are to bemade orally, and the parties are to contact the trial scheduling office for amutually agreeable date.



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