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.

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.

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.

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.

Bruni v. Bruni -- hatred has no legal remedy

A few years back I heard a commentary about criminal court and family court.  The saying went something like this: "criminal court is filled with bad people trying to look good, while family court is filled with good people looking bad."

The parties in Bruni v. Bruni behaved incredibly badly.   The wife alienated the children from the husband (actually seeking to have them adopted by her new boy friend 4 months after separation). The husband failed to report income and to pay adequate child support.  The husband made a frivolous claim to set aside a separation agreement.


Justice Quinn's decision was scathing of the parties.  The decision garnered national attention.

Aside from the delight of schadenfreude, can any insight to our family law system be gained from Quinn, J's critique?

Our court system is is obviously a flawed process for addressing people's emotional difficulties.  In Bruni, the parties and their children were in need of counselling but the court was unable to provide it.  Their anger towards each other came to nothing other than wasted resources and the ridicule of a jurist.

Custody Disputes and the UN Convention on the Rights of the Child -- A Child's Right to be Heard

Canada ratified the United Nations Convention on the Rights of the Child in 1991.  Recently, a lot of attention has been placed on the Convention's concept of "the voice of the child" and the right of a child to be heard in cases like custody disputes.

Article 12 of the Convention is of particular interest:

1. [countries].... shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. 

A lot of lawyers have taken the Convention to be consistent with the Children's Law Reform Act ("CLRA").  Section 24 of that Act requires the court, when assessing the best interests of a child in a custody dispute, to consider all the child's needs and circumstances, including "the child’s views and preferences, if they can reasonably be ascertained".

More recently, in the case of Bhajan v. Bhajan, the Court of Appeal has considered the issue of whether a court can give meaning to the right of the child to be heard by requiring the appointment of the Office of the Children's Lawyer ("OCL"), even when the OCL declines to act.  In that case, the Court of Appeal held that judge's should respect the OCL's legislative framework, which permits the OCL to decline to act.

In the recent case of G. (B.J.) v. G. (D.L.), Justice Martinson of the Yukon Territory Supreme Court considered whether judges interviewing children was an appropriate way of having a child's views heard.  Justice Martinson noted:

"More than just lip service must be paid to children's legal rights to be heard. Because of the importance of children's participation to the quality of the decision and to their short and long term best interests, the participation must be meaningful; children should:

1. be informed, at the beginning of the process, of their legal rights to be heard;

2. be given the opportunity to fully participate early and throughout the process, including being involved in judicial family case conferences, settlement conferences, and court hearings or trials;

3. have a say in the manner in which they participate so that they do so in a way that works effectively for them;

4. have their views considered in a substantive way; and

5. be informed of both the result reached and the way in which their views have been taken into account."

Will Ontario courts follow suit?

The shift towards allowing children greater participation in disputes impacting on them, such as custody disputes, has greatly evolved over the past decade.  The trend is towards making the child's right to be heard more meaningful, to the point where judges are considering the appropriateness of interviewing children -- a rarity in the past.

Certainly, if judges are to respect the OCL's power to decline involvement in a case (as directed by the Court of Appeal), conducting a judicial interview of a child may be the most appropriate method of hearing a child's views.

Expert's Opinions: the need for more than just a "bottom line"

The case of Ramlochan v. Ramlochan provides an interesting discussion about expert's opinions and the need for an expert to go beyond merely providing a conclusion.  The husband's income was at issue in the case -- the amount of his income would determine the amount of support to be paid.  The husband hired an expert, who was to provide an opinion of his income based on her investigation of his financial dealings with two privately held companies that he owned.  The expert filed a report, and without providing any explanation, gave the opinion that his income was $200,000.00 per year.
Corbett, J. refused to accept the expert's opinion.  He held:


The court will not accept an expert’s opinion solely on the basis of the expert’s “authoritative claim”.  That is, it is not sufficient for an expert to show that (a) she is an expert; (b) she has looked into a matter; (c) she has reached a conclusion; and (d) therefore the court should accept her conclusion.  Rather, the expert should explain her assumptions, describe the material evidence and observations upon which the expert relies, describe the analysis and reasoning the expert has used to reach her conclusion, set out her conclusion, including any limitations or qualifications to that conclusion.  The opinion is not just the “bottom-line” conclusion, but the entire intellectual exercise of assumptions, evidence, analysis, reasoning, conclusions and limitations and qualifications of that conclusion.  It is then possible for the court to understand and apply the expert’s opinion on the basis of the facts, as found by the court, and to weigh competing opinions on contested issues.

Corbett, J. concluded that the husband's income for the purpose of support was $557,000.00 per year.