In this case, Justice Pugsley was faced with a set of facts that comes up all too often in family law cases. Justice Pugsley dealt with the return on an emergency Motion dealing with interim custody. The mother in this case, while out at a social function in the absence of the children allegedly hit the father. Prior to this incident, the mother sarcastically told a friend over the internet that, if he had a gun, she would shoot the father. Although the father was not fazed by this alleged threat and the hitting incident was very minor, he called the police and had the mother charged with assault. The mother was taken into police custody and held overnight. When she was released the following day, she required a surety in the amount of $5,000.00, was given severe restrictions on her release, and was restricted from attending at the Matrimonial Home and contacting the father and children. Justice Pugsley made some interesting comments on situations like these and the toll they take on the children of a marriage. Perhaps the most troublesome aspect of situations like these is that the party who is charged is in at an automatic disadvantage with respect to the fate of the Matrimonial Home and custody and access of the children. The fact that the criminal justice system applies this formula regardless of how minor the incident of assault makes this even more problematic. As Justice Pugsley points out, it is not the laying of the charge but the conduct of the system with respect to it that gives rise to these unfortunate consequences. By contrast, if minor assaults were treated differently, family Courts could make determinations regarding possession of the Matrimonial Home and custody and access of the children based on the best interests of the children, the overarching principle that applies in family law cases. In keeping with the pattern that Justice Pugsley comments on, the father immediately moved for sole custody of the children and was able to obtain this Order by virtue of the fact that he only presented one side of the story to the Court. The father significantly restricted the mother’s access to the children, which was clearly detrimental to their best interests. This case demonstrates the danger to children in cases like this, as the parents may exploit the control that they have over one another instead of considered what would be best for their kids. In this case, there was overwhelming evidence that the parents were equally involved in the care of the children. But for the assault charge, Justice Pugsley felt that the parties would have been awarded shared custody of the children. In light of the foregoing, the Judge awarded the parties custody on a week-about basis. Instead of joint custody, which requires more communication and co-operation between parents than these parties had, the Judge ordered an alternating care arrangement. As Justice Pugsley points out, the problem with the criminal justice system is that the Attorney General implemented a zero tolerance policy with respect to domestic assault several years ago. This means that, however minor an assault may be, police are required to charge people and the Crown Attorneys are required to proceed as outlined above. This process tears apart families and fails to serve the best interests of children.

This case deals with a couple that had a lengthy marriage. The Husband had a significant pension which, at the time of this decision, was in pay. This poses a frequent problem in family law cases, as pensions that are in pay are often Double Dipped. That is, a pension is considered as an asset when parties conduct the Equalization of their Net Family Properties. This process effectively means that the party without the pension shares in its value. Then, when spousal support is calculated, that party (who is usually the spousal support recipient) also receives portions of the pension as this is the income the payor uses to pay their support. In this case, the husband retired and his income dropped from $77,000.00, which he earned through employment, to $42,000.00, which he earned from his pension. Both of these facts, the husband’s retirement and the decrease in his income, were deemed to be sufficient material changes to warrant a change in spousal support. The wife was not working at this time and, despite her health issues, the Judge found her able to contribute to her own support, if only on a part-time basis. Additionally, the husband was caring for one of the parties’ adult children who was living with schizophrenia and was unable to work. Despite the foregoing, Justice Rogin continued spousal support at the previously established quantum. In making this award, the Judge ignored the material change, the fact that this constituted double-dipping with respect to the husbands pension, and his caring for the couple’s son. This is likely because the wife was living dangerously close to the poverty line and, without continued support, would require welfare. Also, the husbands reduced income put him in a lower tax bracket, meaning that the provision of $1,200.00 per month in spousal support to the wife would only cost him $750.00 per month. This is an interesting case showing that the need of a spouse will supersede the Courts desire to avoid double-dipping with respect to pensions.

This recent decision of the Ontario Superior Court of Justice is a groundbreaking one in the arena of joint custody orders for high conflict families. In this case, a same-sex couple were the parents of twins who were conceived via artificial insemination using an anonymous donor. At the date of separation, the children were 5 years old. The circumstances of the parties’ separation gave rise to a great deal of conflict between them, begging the question of whether or not the children’s best interests would be served by a joint custody regime Previously, Courts who were asked to make custody and access orders in high conflict cases looked to the Ontario Court of Appeal’s decision in Kaplanis v. Kaplanis, wherein the Court stated that the mere fact that a Judge wishes for parents to effectively provide their children with a meaningful joint custody regime will not create one. That is, joint custody is inappropriate in a case where the parties cannot communicate well enough with one another to make appropriate decisions for the children. There are cases to the contrary, however, in which the Court condoned a joint custody regime in a high conflict separation where an order for parallel parenting accompanied this regime. Parallel parenting provides each parent with final decision making power regarding particular aspects of the children’s lives, specifically to do with health and medical care, education, and religion.

In this case, the Court adopted the latter approach and added an important facet for similar cases in the future. The Court did award the parties’ with joint custody as well as a parallel parenting regime. However, the Court stressed that such orders must be exceedingly specific in high conflict situations so that neither party can escape via loopholes. This means that any decision in such a case, whether made by a Judge or between the parties themselves, must take the possibility for conflict into account. The Judge in the case at bar created an access regime whereby each parent has the children on a week about basis in order to reduce the number of exchanges and, thereby eliminate potential for conflict. The Court allowed each party to travel with the children but mandated a long notice period and stated that each party “shall” sign the appropriate consent forms. The Court also went to great lengths to provide for every possible school vacation, holiday, and other special occasion, leaving very little to the parties to decide among themselves. Lastly, the Court gave Ms. Trepanier decision-making authority regarding health, medical and dental issues, and extracurricular activities for the children. Ms. Cadieux, in turn, was granted decision-making power regarding all other major decisions for the children.

Perhaps the most uncommon aspect of this case is that the Judge seized herself of the matter, or chose to remain involved in same, on an indefinite basis. Typically, if a Judge remains seized, they do so for a pre-determined period of time. However, the Court’s decision in the present case seems appropriate and helpful in the circumstances.

The case of Ferguson v. Ferguson examines the circumstances in which a Court will vary a previously made award for spousal support. In order to alter an existing spousal support order, a litigant must convince the Court that a material change in the parties’ circumstances has occurred. In this case, the Husband was originally ordered to pay both spousal and child support to the Wife in 2004. When the children turned 18 in 2007 and child support ceased, the Wife successfully argued that the cessation of child support was a material change in circumstances, giving rise to the alteration of her existing spousal support order. After separation, the Husband’s income increased while the Wife struggled to earn a modest income of less than $10,000.00. She was living with arthritis, depression and anxiety, all of which affected her ability to work, and she was required to borrow money from her elderly parents. When the Court examined all of these factors, combined with the end of the Wife’s entitlement to child support, it was clear that she could not subsist on her original quantum of spousal support. As such, Justice Hambly increased her spousal support to a point where it exceeded the total of her original spousal and child support orders. While this result seems harsh, the Court felt it was fair in the circumstances. This case should also serve as a caution to payors who seek to alter their support payments using child support as a material change in circumstances. Instead of decreasing, they could in fact find their support obligation increasing.

The Donley v. Donley, 2008 CarswellOnt 596 (Ont. S.C.J.), decision involves a situation where the husband and wife both brought motions on the same date. The Husband’s was Issued and filed first, so the wife became the Respondent in the matter. Both parties were seeking custody of the two children.

The parties were married about 10 years and separated in October 2007. Post separation the parties remained in the Matrimonial Home until January 15, 2008 when the wife unilaterally moved from the Matrimonial Home with the children and without notice to the husband or a court order. The wife further removed the children from their school. The wife claims that she left the Matrimonial Home, because the husband has an anger management issue and is addicted to pornography and has exposed the children to same. She claims that the children’s safety required their removal from the home. For his part the husband explicitly denied all claims made by the wife and states that in fact the wife is abusive and has anger management issues.

This case involves urgent motions with conflicting Affidavit materials.The judge put weight on the fact that the status quo had the children living in the Matrimonial Home and attending their local school. Justice Harper reminds us that the party disturbing the status quo must have a compelling reason for doing so. Justice Harper did not find the wife’s evidence clear and compelling and further found that the wife’s self help remedy of removing the children was performed for a tactical advantage over the husband. The husband was thereby given exclusive possession of the Matrimonial Home and custody of the children pending the return of the matter.

Kougioumitzidis v. Fontana is a 2007 decision of the Ontario Superior Court of Justice. This case deals with imputing income to the payor of Child Support as well as the consultation process involved in incurring section 7 expenses. In this case, the Court examined all of the father’s sources of income, including all of his employment benefits. Such employment benefits included the use of a car, including insurance and gasoline allowance, as well as the opportunity to write off personal expenses through the business. While this information was evidence of what the father actually earned on an annual basis, the mother adduced no similar evidence showing that the father lived a lifestyle that exceeded his income. Had the mother been able to prove this fact, this would have been a platform from which the Court could impute a greater income to him. As such, this case illustrates the importance of sufficient evidence when attempting to impute additional income to the payor spouse.

In terms of the issue of section 7 expenses, the mother had enrolled the children in a Montessori School and sought reimbursement from the father for his proportionate share of this expense. The Court found that the mother made this decision unilaterally and without consultation with father. Additionally, there was a previous Court Order in the matter requiring any party seeking to incur section 7 expenses to bring a Motion in this regard. Based on the foregoing, the Court absolved the father of any responsibility for the Montessori School tuition. This case illustrates the need for the party seeking to incur a section 7 expense to give the other parent reasonable notice of the said expense, as well as an opportunity to agree or disagree with same. Parties’ who fail to do this risk bearing the cost of the expense in its entirety.

The Haley v. Haley, 2008 CarswellOnt 369 (Ont. S.C.J.), decisions involves an adult child who finished high school, but did not commence post-secondary education until two years later. During the son’s two years off of school he worked in order to save money and explore options. After the two year period he had not saved funds, but had decided to attend animation school. The Respondent father argued that he was no longer responsible for any support of the son. The Separation Agreement stated that the Respondent was responsible for child support and extraordinary expenses provided the child under 18 years old or remained in post-secondary education. The Respondent father argued that the two year hiatus from school alleviated him of financial for the son.

The court disagreed with the Respondent’s position. Justice Pazaratz ordered that the Respondent pay to the Applicant mother guideline child support based on the fact that the son would be living with her while attending school. Justice Pazaratz further ordered that the Respondent pay 50%, after reasonable contribution of $5,000.00 per year from the son, of the costs associated with the college program.

This decision reaffirms the paramountcy of a parent’s child support obligation. Even after a parent believes that their child is no longer a child of the marriage if the child commences a post-secondary educational program that parent may still owe child support obligations.

In Olah v. Olah, the Court dealt, once again, with the question of whether or not to impute additional income to the payor of Child Support. In this case, the father was employed as a dealer in a casino. He worked 26 hours per week and earned an annual income of $32,000.00. Previously, the father worked as a bricklayer and earned up to $55,000.00 per annum in that capacity. The mother argued that, based on his previous earnings as a bricklayer, the Court should impute him additional income. In response, the father argued that he was unable to obtain work as a bricklayer and, therefore, he was forced to work as a dealer at a significant decrease in salary. While the father’s claim seemed legitimate in light of the well known shortage of work in the construction industry, he failed to lead conclusive evidence of the lack of jobs available for bricklayers. However, the Court noted that the father had been earning an income of $32,000.00 for a number of years and, as such, increasing his income significantly would yield an obligation in retroactive Child Support that would far exceed his ability to pay same. The Court imputed an additional income of $5,000.00 per annum to the father on this basis. Interestingly, the Court did not question whether or not the father was able to work more hours at the Casino in order to increase his income.

The recent case of Bekkers v. Bekkers of the Ontario Superior Court of Justice provides an interesting analysis of imputing income to a payor who is the majority shareholder and sole employee of their own small business. In this case, the parties were married for 17 years and the husband was an electrician who worked for and controlled his own company. The wife provided bookkeeping services to the said company and owned 49% of the shares in same. In 2007, the company paid the husband a salary of $82,560.00. Although Child Support and Spousal Support are normally based on the payor’s total income according to their Income Tax Return, there are circumstances in which the Court will attribute additional income to a payor who owns a business and puts personal expenses through the business. In this case, the wife argued that the Court should impute additional income to the husband in the amount of 50% of the company’s gross profits on this very basis.

The husband admitted that he had a truck, the expenses of which were paid by the company. Although the truck was used in the course of the husband’s business, he also made personal use of same. The Court reviewed and reiterated the correct approach to be taken in determining whether or not additional income should be imputed to the husband on the basis of his truck and other personal expenses that the wife alleged were covered by the business. The Court stated that the first step in this approach is to determine the husband’s income which is paid to him by the company as wages and/or salary. Next, the Court examines section 18(1)(a) of the Child Support Guidelines, which provides that, where this salary does not fairly reflect all money that the payor has available for the payment of child support, the court may consider including certain additional amounts in their annual income. This amount can come from a variety of sources, including all or part of the pre-tax income of the corporation for the most recent taxation year. The Court was also aided by section 19(1)(g) of the Child Support Guidelines which allows the Court to impute income which would be appropriate in the circumstances, which circumstances include where a payor unreasonably deducts expenses from income.

It was the wife’s position that the company truck was partly for personal use and, as such, the deduction of these expenses were unreasonable. The Court found the wife’s approach in this regard to be inappropriate. As the party alleging that a benefit has been paid to or on behalf of a spouse by a corporation controlled by that spouse has the onus of proving that such a benefit was in fact paid, the value of the said benefit, and the fact that deducting this expense from income was unreasonable.< Only once these are established does the onus switch to the payor spouse to demonstrate that these payments were, in fact reasonable in the circumstances.

In the case at bar, the Court found that the wife had not discharged her onus of adducing evidence of the amount of any benefit and/or expense paid and, therefore, failed to prove to the Court that the husband’s expenses were unreasonably deducted from income. Therefore, the Court awarded child and spousal support on the basis of his stated salary, namely $82,560.00.

This case deals with a very familiar set of facts but yields an unconventional result compared with other cases of its kind. In this case, the Wife’s parents assisted the parties when they first married by purchasing their home for them. Although the house was legally in the Wife’s parents’ names, the parties made the mortgage payments and saw to all necessary repairs and other issues relating to the house. When the parties separated, however, the Wife and her parents claimed that the home was not an asset of the marriage and, as such, its value should not have been split between the parties. The Wife and her parents argued that she and the Husband were merely paying rent to the parents, who were the true owners of the home.

The Court did not accept the argument of the Wife and her parents as there was some crucial documentation that they failed to produce to the Court. Furthermore, the Court placed significant weight on the fact that the couple had paid all the closing costs associated with the purchase of the home, made the mortgage payments, and otherwise conducted themselves as if they were the true owners of the home. Friends and other relatives testified that the parties referred to the house as their own and, when the Wife was asked to summarize her assets in the 1999, she included the home therein. The Court also found it important that the couple placed significant financial strain on themselves in order to make weekly mortgage payments for the home. In light of the foregoing, the Court found that the couple owned the home by way of constructive trust and, as such, the value of the home was to be split between them. Out of the proceeds of the sale, the parties were to reimburse the Wife’s parents for their contributions to renovations and other necessary activities required for the upkeep of the home. This decision is a very important one for any couple whose parents purchase their home on their behalf.