144 King Street East, Toronto, Ontario

144 King Street East, Toronto, Ontario

Tuesday, December 20, 2011

Child Support Table Amounts Increasing after December 31, 2011

There are new child support tables effective January 1, 2012.  The new tables can be accessed at the Department of Justice's website.

Tuesday, December 13, 2011

A Word on Joint Custody in Ontario

Justice Brownstone of the Ontario Court of Justice recently wrote on the state of law on joint custody in Ontario.  In the case of Hsiung v. Tsioutsioulas, Justice Brownstone wrote:

[17]                  I am acutely aware that an order for joint custody should not be made in cases where the parents have been unable or unwilling to demonstrate the capacity and willingness to communicate and to co-operate with each other and make decisions together in a civilized, child-focussed way.....  However, courts are increasingly prepared to order joint custody, even in high conflict cases, where satisfied that the parents have insulated the children from the conflict and sufficient protective factors are in place to ensure that the joint parental authority will be workable...  Moreover, in recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship... consider this to be such a case.

Friday, March 11, 2011

Gagne v. Gagne -- Appellate Guidance on the "Ranges" under the Spousal Support Advisory Guidelines

In Gagne v. Gagne, the Court of Appeal set aside the trial judge's decision and made its own child and spousal support order after finding that the trial judge had failed to determine the support payor's income.  As a result there was no basis in his decision for the amounts ordered. 

The Court of Appeal found that the husband had not made "fair disclosure" in the lower court.  Nonetheless, the trial  record showed  that the husband disclosed an average annual income of $230,000.00 over a 5 year period. The Court of Appeal upheld the trial judge's finding that the husband failed to disclose income from other sources and imputed an additional $20,000.00 to him, increasing his income to $250,000.00.

The Spousal Support Guidelines ("SSAGs") produced the following range of monthly spousal support: Low - $3349; Mid - $3968; and High - $4597 (based on the "with child formula", the length of the parties' marriage, their ages and incomes).  The Court of Appeal ordered the husband to pay the higher range figure because of his failure to make fair disclosure.

Unfortunately, there is nothing in the SSAGs to suggest that the ranges are to be used to penalize a party for financial disclosure that is not fair.  The SSAGs state in chapter 4:

The Advisory Guidelines do not generate a fixed figure for either amount or duration, but instead produce a range of outcomes that provide a starting point for negotiation or adjudication.
Ranges create scope for more individualized decision-making, allowing for argument about where a particular case should fall within the range in light of the Divorce Act’s multiple support objectives and factors. Ranges can also accommodate some of the variations in current practice, including local variations in spousal support cultures.

And at Chapter 8:

The ranges allow the parties and their counsel, or a court, to adjust amount and duration to accommodate the specifics of the individual case in light of the support factors and objectives found in the Divorce Act
It would have been nice to see an appellate case where the Court was more instructive on the use of the ranges.  Maybe some other time.

Friday, February 18, 2011

Support of Estranged Adult Children

There has been a lot of discussion lately about paying child support to adult children who are estranged from the support payor.   Should a father pay support to a child who is attending university, and who refuses to have a relationship with the support payor?  Are adult children required to communicate a minimum disclosure regarding their studies?

Smith v. Smith addresses the issue of support for adult children in circumstances where the children cut off their relationship with the support payor.  Without much analysis, the court simply terminated the children's support.

A more thorough discussion of the topic can be found in Caterini v. Zaccaria, where Justice Pazaratz quoted a paper delivered by Justice Corbett, and the following comments as authority:

    (a) Contrary to certain recent literature, there has not been "growing judicial recognition" that the quality of the relationship should have a bearing on child support. 
    (b) Courts have been willing to impose a few specific responsibilities on adult support recipients, and may properly do so, but not conditions that include maintaining a social relationship with a parent. 
    (c) The statutory basis for taking the quality of the child-parent relationship into account is dubious. 
    (d) There is appellant authority permitting the court to place some weight on the parent-child relationship, but that authority is more ambiguous than trial and motions court decisions suggest. 
    (e) On the current state of the law, there seems to be a discretion to take this factor into account, though few courts do, and fewer have found it a significant factor in a support decision. 
    (f) The better view is that if conduct is ever relevant, it should only be in truly egregious cases of misconduct by a child against a parent. 

As has been commented by others, a review of case law in the area suggests that the over riding concern on the part of courts is the child's need.  If the child needs the support, the weight given to the quality of his or her relationship with the payor spouse is less important.  If the support is not needed the quality of the parent child relationship is given more importance.